Calcutta High Court
Dilip Kumar Ghosh vs Amit Kumar Roy Chaudhury on 20 May, 2002
Equivalent citations: (2003)1CALLT490(HC)
JUDGMENT N.C. Sil, J.
1. This appeal has been directed against the judgment and decree dated 8.2.1999 and 16.2.1999 respectively passed by Sri Samaresh Prasad Chowdhury, Civil Judge, Senior Division, 8th Court, Alipore in connection with Title Appeal No. 156 of 1998 affirming in part the judgment and decree dated 11.5.1998 passed by Sri Dulal Chandra Kar, learned Civil Judge, Junior Division, 5th Court, Alipore in connection with Title Suit No. 20 of 1994.
2. The suit before the learned lower Court was for eviction of a premises tenant and also for mesne profit on the ground of default in payment of rent, for reasonable requirements and also for subletting. The learned trial Judge appears to have decreed the suit on the grounds of default in payment of rent and the ground of reasonable requirement and subletting were according to him not established. The benefit of Section 17(4) of the West Bengal Premises Tenancy Act (hereinafter referred to as 'Act' in short) was not given to the tenant/defendant by the learned trial Judge for the reasons stated in the judgment. The learned Judge of the lower appellate Court decreed the suit on both the grounds of default of payment of rent and reasonable requirement. In such circumstances, the present appeal arose.
3. The following substantial questions of law has been formulated for the purpose of determination of the present appeal:
(i) whether the order of the trial Court was wrong as regards default in the payment of arrears of rent.
(ii) whether the plaintiff has obligation to establish before the Court that he has got previous business experience in order to substantiate his claim for reasonable requirements of the suit premises for the purpose of starting a business.
4. Mr. Malay Kumar Basu, learned counsel appearing with Mr. Ashok Kanti Mukherjee, learned advocate for the appellant/defendant/tenant submits before me that unless the trial Court determines the quantum of arrears of rent after disposal of the petition under Section 17(2) of the West Bengal Premises Tenancy Act and under Section 17(2) of the said Act, the Court cannot pass such decree. It is pointed out by Mr. Basu that the period of post suit default was from the month of February, 1995 to July 1996. It is also pointed out by him that the petition under Section 17(2) of the Act was originally disposed of by the trial Court on 6.3.1995 holding that the defendant was defaulter in payment of rent for 25 months, but this period of default was changed when the matter was again heard on 15.9.1996 by the trial Court in pursuance to the direction of the revisional Court and it was then decided that the total period of default was for 15 months. Mr. Basu has then argued before me that at the time of passing the order after remand the period from the day of passing the first order till the day of passing the order after remand was not taken into consideration by the learned trial Court and as such in the subsequent order being No. 64 dated 5.9.1996, the payment of arrears of rent from the month of February, 1995 to the month of July, 1996, as observed by both the Courts below, was not covered.
5. Mr. Basu has then argued before me that although the learned trial Judge rejected the ground of reasonable requirement, the first appellate Court was pleased to allow it but there is no specific finding of the learned Judge on the reasonable requirement of the plaintiff and in such circumstances the case may be remanded for fresh hearing. Mr. Basu has then referred to the ratio decided In the case of Pulin Kumar Chowdhury v. Sachindra Mohan Bose and Anr. (1978, 1 CLJ 645). It was held in that case that it is the statutory duty of the Court to calculate the arrears of rent and interests thereon and there is no question of waiver by tenant where the Court is in fault in discharge of its statutory duty under the said section. It was also held in that case that Sub-section (2A) of Section 17 of the said Act engrafts an exception to the provisions of Sub-section (1) and Sub-section (2) to the extent contained in Sub-section (2A). It was also held that the proviso to Clause (b) of Sub-section (2A) lays down that where payment is permitted by installments such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under the said Sub-section is to be made with interest on any such amount calculated at the rate specified in Sub-section (1) from the date when the amount was payable upto the date of such order.
6. Mr. M.K. Roy, learned counsel appearing with Mr. K.C. Sahoo, learned advocate for the plaintiff/respondent/landlord submits before me that the quantum of the rent and relationship were all admitted and only the period of arrears/default was in dispute. It is further argued by Mr. Roy before me that the finding of the first appellate Court is conclusive as regards the quantum of arrears of rent and the revisional Court allowed the petition directing the learned trial Court to hear both the parties only on the payment of installment. Mr. Roy has also raised this question before me as to why appellant/tenant did not file any application before the trial Court for clarification of the order passed under Section 17(2) of the Act.
7. Mr. Roy has then referred to the ratio decided in the case of M.L. Bajaj v. MSMT Rashika Khatoon (87 CWN 163). It was held in that case that the legislature expressly provided that the obligation imposed by the Section 17(1) of the Act has to be discharged by a tenant in every suit or proceeding for eviction based on any of the grounds referred to in Section 13.
8. As regards the ground of reasonable requirement Mr. Roy submits before me that it is always the prerogative of the landlord to choose the premises. In this connection he has referred to the ratio decided in the case of D.L Kamble v. A.R.M. Kotkune and Anr. in which it was, inter alia, held that the landlord who seeks eviction of his tenant on the ground of bona fide requirement of starting business need not establish that he possesses the know-how necessary for doing the business. Mr. Roy has also referred to the ratio decided in the case of Sohanlal Rajgharia v. Cal. Chromotype (P) Ltd. (1979)1 CLJ 274). It was held in that case that the statute of limitation only bars the remedy but does not extinguish the debt. Where the tenant fails to avail himself of the opportunity of depositing rent and has not paid rent within one month on the date of the service upon him of the writ of summons, the landlord will be entitled to make an application for an order asking the defence of the tenant to be struck out on the ground that he has not deposited the entire amount due and in that case protection is no more available to the tenant and the entire amount of rent would include rent which has become time-barred.
9. Now from the submissions made by the learned counsel for both the parties and on perusal of the materials before me it is very pertinent to discuss the orders passed twice in connection with the application under Section 17(2A) of the Act. It appears from the record of the trial Court that by order No. 15 dated 6.3.1995 the application under Section 17(2) of the Act was disposed of. In the said order it was determined that the defendant/tenant was a defaulter in payment of rent for 25 months from the month of December 1992 till the month of January, 1995 and as such the defendant was directed to pay a total sum of Rs. 7,585/- including the interest of Rs. 710/- by 31.3.1995. Against that order the defendant/tenant moved the revisional Court and the revisional Court remanded the matter to the trial Court and the trial Court by its order No. 64 dated 5.9.1996 disposed of the matter. In the said order No. 64 dated 5.9.1996 it is observed that the total default of the defendant/tenant was not for 25 months but for 15 months and in doing so it was observed by the trial Court that the defendant/tenant was not a defaulter in respect of payment of rents from the month of March, 1994 till the month of December, 1994.
10. Thus, if the said period from the month of March, 1994 till the month of December, 1994 is taken out from the month of December, 1992 till the month of January, 1995 the position remains that the defendant was a defaulter from the month of December 1992 till the month of February, 1994. The mathematical calculation of the situation may be shown as inside the bracket. (December '92 to January '95-March '94 to December '94 = December '92 to February '94 & January '95). But in any case the order No. 64 dated 5.9.1996 is not at all conspicuous and candid enough to show the mention of the particular months of default far to speak of any period subsequent to the month of January, 1995 till July, 1996 i.e. from the month of February, 1995 upto July, 1996 as observed by both the Courts below. The specific observations, of the learned trial Court as well as the first appellate Court is that the defendant/tenant did not pay the arrears of rent from the month of February, 1995 to July, 1996 and as such the defendant/tenant is not entitled to get the benefit of Section 17(4) of the Act. It is now clear from what has been discussed above that there was absolutely no finding in the orders of the learned trial Court in disposing of the petition under Section 17(2) of the Act twice that the defendant/tenant was a defaulter in payment of arrears of rent from the month of February, 1995 till the month of July, 1996 nor there was any direction in the said orders for payment of such arrears of rent for those periods. Both the Courts below thus committed errors in taking the orders passed in connection with Section 17(2) of the Act in its proper perspective. Since the judgments and decrees of both the Courts below are based on the question of default in the payment of arrears of rent in terms of the order passed under Section 17(2) of the Act and since the said judgments and decrees are challenged here in this appeal this Court has perfect jurisdiction to enter into the merits of those orders. And I find that the judgments and decrees passed by the learned lower Courts on that score are bad and cannot be sustained. The case laws cited by the learned counsel for the respondents do not appear to be applicable in the facts and circumstances of this care and in view of my findings stated above.
11. The next question is as regards the reasonable requirements of the respondent/landlord. The learned lower Court rejected the same on the ground that the plaintiff/landlord could not establish his previous experience of business. But following the ratio decided in the case of D.L. Kamble (supra) I must hold that for the starting of business as the ground of bona fide requirements of the landlords, the landlords is not required to possess the know-how of doing any business. The Hon'ble Supreme Court in that case observed that if a person wants to start new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. The Hon'ble Apex Court further observes that many a business have flourished in this country by leaps and bounds which were started by novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. The view that acquisition of sufficient know-how is a pre-condition for even proposing to start any business, if gains, approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. The Hon'ble Apex Court further observed that experience can be earned even while the business is in progress and it is too pedantic a norm to be formulated that "no experience no venture".
12. Now it appears that the learned Judge of the lower appellate Court took the pragmatic approach in this regard in holding that the previous experience of business cannot be the pre-condition for getting a decree on the ground of reasonable requirement. I do not concur with the argument of Mr. Basu, the learned counsel for the appellant that the observation of the learned Judge of the lower appellate Court is not specific as regards his decision that the plaintiff is entitled to get a decree of his bona fide reasonable requirement and as such it is also not felt expedient to remand the suit on that ground.
13. Now, I may hold it that although the decision of both the Courts below are wrong in respect of the fact that the defendant/appellant was not entitled to get the benefit of Section 17(4) of the Act, the respondent/plaintiff is entitled to get the decree in this suit for the reason that one of the grounds for eviction that is to say the ground of bona fide requirements has been established and as such the decision of the first appellate Court in this regard is liable to be affirmed.
14. The appeal is thus dismissed on contest without any order as to costs. The judgment and decree passed by the lower appellate Court for eviction on the ground of reasonable requirement is hereby affirmed while the judgment and decree passed by the trial Court are hereby set aside.
A copy of this judgment along with the LCRs be sent down to the lower Courts forthwith.