Calcutta High Court
Smt. Sibani Chakraborty vs Sri Nripendra Kumar Basu on 24 August, 1990
Equivalent citations: (1991)1CALLT451(HC), 95CWN623
JUDGMENT Ajit Kumar Nayak, J.
1. In this second appeal the short question of law that arises for determination is whether a defendant-tenant once having refused to avail himself the benefit of partial eviction, under Section 13(4) of the West Bengal Premises Tenancy Act, can again be offered the same benefit by the court at the appellate stage, and if so, whether the tenant can avail of it? It may be stated at the outset that answer to this question is, and should be in the affirmative.
2. This second appeal is directed at the instance of the plaintiff-landlord against a judgment and decree of partial eviction dated 7.5.1986 and 20.5.1986 respectively passed by learned Additional District Judge, 14th Court, Alipore, 24-Parganas, in Title Appeal No. 652 of 1984, in a suit brought by the plaintiff-appellant for eviction of the defendant-respondent- tenant among other grounds for reasonable requirement for own use and occupation.
3. The respondent-defendant-tenant (for short defendant-tenant) was admittedly a tenant under the appellant-plaintiff in respect of the suit premises. The plaintiff filed the suit for ejectment of the defendant-tenant on several grounds including the ground of reasonable requirement for her own use and occupation. The trial court rejected the other grounds having no merit and in respect of the ground of reasonable requirement, found the plaintiff-landlord's case established in respect of a stair case room in the ground floor. The defendant-tenant having not been agreeable to an offer of partial eviction being offered by the trial court, the said court decreed the suit for eviction for the entire suit premises.
4. As against the said finding and order, the defendant-tenant preferred an appeal and it was pleaded on his behalf about the sufficiency of the existing accommodation of the plaintiff-landlord and the invalidity of notice of suit for which it was argued, the suit was liable to be dismissed.. On behalf of the plaintiff-landlord, it was however, pleaded before the first appellate court that she required the entire suit premises for her own use and occupation.
5. The first appellate court endorsed the finding of the trial court on the point of validity and sufficiency of the notice for ejectment served on the defendant-tenant and that the defendant-tenant was not liable to eviction under Clause 13 (1) (k) of the West Bengal Tenancy Act as the plaintiff-landlord had waived her right to demand delivery of possession of the suit premises and further endorsed the finding of the trial court regarding reasonable requirement of the plaintiff-landlord being established only in respect of one room in the ground floor. In other words, the first appellate court accepted the finding of the trial court that a decree for partial eviction of the defendant-tenant from one of the rooms of the ground floor could only be granted, if the defendant-tenant was agreeable to continue in occupation of the rest of the premises after such partial eviction. The trial court, as already stated, granted a decree for eviction from the entire suit premises as the defendant-tenant was not agreeable to such decree for partial eviction. The first appellate court, while endorsing such finding of the trial court, made similar offer directing the defendant-tenant to signify his acceptance to such decree for partial eviction by a formal petition within 10 days from the date of such order, and on defendant-tenant's acceptance of such offer for a decree for partial eviction granted the same only in respect of one room under stair case in the ground floor fixing a proportionate rent, for the remaining portion of the suit premises in occupation of the defendant-tenant comprising 2 bed rooms, a kitchen, besides the common user of bath and privy. The defendant-tenant undisputedly was in occupation of 4 rooms comprising an area 364 sq. ft., out of which the stair case room, measuring 74 sq. ft. only, was taken away and as such the defendant-tenant was allowed to occupy in respect of 290 sq. ft. on payment of fixation of a proportionate rate of Rs. 92/- per month.
6. It is against this judgment and decree of the first appellate court that the plaintiff-landlord has preferred the present second appeal.
7. The judgment and decree of the first appellate court has been assailed on two grounds : Firstly, it has been contended that the first appellate court should have granted a decree for the entire suit premises in consideration of the reasonableness of the requirement of the plaintiff-landlord and that a decree for partial eviction in respect of one room only, should not have been granted when the defendant-tenant had waived his right by declining an offer for partial eviction made by the trial court. Secondly, that the first appellate court was wrong in refusing relief to the plaintiff under Section 13 (k) of the West Bengal Premises Tenancy Act.
8. Undisputedly, the plaintiff's family consists of herself, her husband, a son and a daughter, both of whom, have been claimed to be students. According to the case made out in the plaint, the plaintiff -appellant requires five rooms. One for herself and her husband, another for her children, a third room for her married daughter who visits plaintiff's house occassionally with her husband, a reading room for her children, a drawing room for her guests and outsiders besides a thakur ghar.,
9. Both the courts below came to a concurrent finding on the basis of the materials on record including the reports of two local inspections (vide reports Ext. 4 and Ext. B) that the plaintiff has an existing accommodation of five rooms including a kitchen and a covered verandah in the first floor, one room on the second floor, and another room in the ground floor. Both the courts have found that the room in the second floor can be fruitfully utilised as a thakur ghar. The covered varandah can also be used as a store, for storing building materials and masons' tools and the ground floor room as a drawing room.
10. Of the five rooms in the first floor, one is kitchen and another room can be used as a store room and excluding these two, three other rooms which are of good size may very well be used as bed rooms, one for plaintiff and her husband, one by the children and the other for the occassional visits by the married daughter and her husband. We have already seen that the ground floor room as found by both the courts below can very well be used as drawing room.
11. Both the courts below for very good reasons have found, on materials on record, that the plaintiff-appellant failed to prove her case of reasonable requirement for her parents-in-law, I find no reason to interfere with such concurrent finding of face by both the courts below so far as these rooms vis-a-vis the requirement of the plaintiff, and the same is binding upon me in the second appeal.
12. Even apart from that it appears the finding arrived at relating to extent of requirement in regard to these rooms is also sensible on its merits.
13. Regarding the requirement of the study room for the children, both the courts below have found that the room under the stair in the ground floor measuring about 74 sq. ft., in occupation of the defendant-tenant can very well serve such purpose. The first appellate court on a perusal of the evidence has accorded his concurrence with such finding of the trial court. It may be stated here that the comperative advantage and disadvantage of both the parties have been carefully considered by both the courts and there is no reason to take a different view from the findings arrived at by the courts below. I am, therefore, in agreement with the finding of the courts below that the plaintiff-appellant's reasonable requirement for her own use and occupation may be satisfied only by ejecting the defendant- tenant from one of the rooms under his occupation i.e. the room under stair case in the ground floor.
14. The next question for consideration is whether the defendant-tenant having once refused or declined to accept the offer of partial eviction before the trial court can turn back and accept the same in the court of appeal as it has been done in this, case. It has been seriously urged on behalf of the plaintiff-appellant that this-the defendant-tenant cannot do having once refused the same before the trial court, and that the first appellate court can not also grant the same under such circumstances. In emphasizing such argument, the learned Advocate for the plaintiff-appellant has drawn my attention to the forfeiture clause as provided under Section 114 of the T.P. Act. On a consideration of the relevant provisions of law in this regard, I am of definite opinion that the first appellate court was not wrong in making such offer to the defendant-tenant and granting a decree of partial eviction. Unlike in the case of relief against forfeiture for nonpayment of rent as contemplated under Section 114 of the T.P. Act, which is an equitable relief to be granted by the court under its discretion, in the case of relief to the tenant under Section 13(4) of the West Bengal Premises Tenancy Act, it is the duty of the court to consider if it thinks on the materials before it, that it ought to satisfy substantially the plaintiff's requirement and if the defendant agrees to occupy the portion that will be left after satisfying the plaintiff's requirement, then to pass a decree for partial eviction.
15. It is now a settled question of law that word 'court' in Sub-section 13(4) of the West Bengal Premises Tenancy Act not only means the trial court but also the appellate court and this view accords with the general powers of the appellate court, under Section 107(2) C.P.C. No doubt, the fact that the tenant did not agree to partial eviction and refused to avail the benefit available to him under the statute, may well be a relevant consideration for the appellate court either for granting such relief or refusing the same. The appellate court can, no doubt reconsider the matter in the light of the changed circumstances that have occurred in the meantime, or when the same questions have been overlooked or refused consideration, and thus can give effect to such special provision to protect the tenant from total eviction. Such view also finds support from a single Bench decision of this Court reported in 59 CWN page 430 where P. N. Mukherjee J, observed that in a case, when, at the trial court, the tenant did not agree to partial eviction, and refused to avail himself of the benefit under Section 12(1) (h) of the Rent Act, 1950, the matter may be) a relevant consideration at the appellate stage in certain circumstances. Therefore, it cannot be said that having refused such offer the defendant-tenant is debarred from getting such relief on a renewed consideration of such offer at the appellate state. Whereas in the case of relief against forfeiture the entire conduct of the tenant-lessee is highly relevant for the purpose of granting such equitable relief, in the case of partial eviction, a duty is cast upon the court to grant such relief when the court objectively determines and decides that the requirement of the plaintiff-landlord can be substantially satisfied by ordering such partial eviction. I find, therefore, nothing wrong on the part of the first appellate court to grant such relief of partial eviction in favour of the defendant-tenant and such finding is sustained thereby.
16. The only other point regarding non-consideration by the first appellate court of the ground of eviction under Section 13 (k) of the West Bengal Premises Tenancy Act, that has been urged on behalf of the plaintiff-appellant has no substance at all., Both the courts below have found and that too for very good reasons that the plaintiff-landlord actually waived his objection if any and accepted the continuance of the tenancy by the defendant-tenant even after the expiry of the period of agreement on 8.8.79.
17. The result is the appeal fails and is dismissed. The judgment and decree of the first appellate court are hereby affirmed.
No order is made as to costs.