Calcutta High Court
Dr. S.K. Shom Alias Subodh Kumar Shome vs Sri Jagadish Chakraborty on 15 February, 2000
Equivalent citations: (2000)3CALLT15(HC)
JUDGMENT S.N. Bhattacharjee, J.
1. In this appeal the Judgment and decree dated 21.3.96 passed by the learned Civil Judge (Senior Division) 10th Court, Alipore in Title Appeal No. 264 of 1995 affirming the Judgment and decree dated 30.6.95 passed by the Civil Judge (Junior Division) 2nd Court, Alipore in Title Suit No. 393 of 1987 has been impugned.
2. The following questions Involving substantial points of law have been formulated by the Appellant in the Memo of Appeal :--
(i) whether the desire of the landlord to stay with his only son and son's wife living in a separate flat elsewhere taken on rent by the landlord himself is a reasonable requirement under the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act) as held concurrently by learned Courts below? (para XIV, XXII, XXIII);
(ii) whether the finding of the Courts below that the respondent or his family members reasonably required a room as a Thakurghar not being borne out by evidence on record is perverse and liable to be set aside? (para XXVII-XXIX).
In course of argument another point of law has been raised by learned counsel for the appellant although not specifically taken in the Memo of Appeal.
(iii) whether the requirement of the landlord for two rooms in the ground floor as his chamber after having surrendered the tenancy of a chamber at Kali Temple Road can be held as reasonable requirement under the law.
3. According to the learned counsel for the appellant the decree for eviction passed by the Courts below was based upon legal conclusions wrongly arrived at from the facts on record and under wrong Interpretation of the Judicial decisions cited before them.
4. In Panchugopal Barua v. Umesh Chandra Goswami , the Apex Court has held, "that a Second Appeal shall not lie to the High Court under the amended provisions unless the appeal Involves a substantial question of law. The Jurisdiction of the High Court to entertain a second appeal under section 100 CPC after the 1976 amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. The proviso presuppose that the Court shall Indicate in Its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a "substantial question of law" is thus, the sine qua non for the exercise of the Jurisdiction under the amended provisions of section 100 CPC."
5. Similar view has been taken by the Supreme Court in numerous other decisions like Makhan Lal v. Ashrafi Lal ; AIR 1997 SC 106 ; : . It is, therefore, to be seen as to whether the question raised above involve substantial questions of law.
6. The facts of this case have been narrated in details in the judgments of the Courts below. Both the Courts below came to the following findings :--
(a) The plaintiff is the absolute owner of the suit premises.
(b) The plaintiffs son and son's wife after marriage live in a separate rented accommodation at Ballygunge and that accommodation was rented in the name of the plaintiff.
(c) The plaintiffs son and son's wife are research fellows in the department of chemistry of Jadavpur University drawing a total sum of Rs.3500/- per month as stipend.
(d) The plaintiffs personal requirement for accommodation, besides his professional requirement for chamber in the ground floor, is for six rooms as detailed below :--
(i) self and wife -- one room, (ii) son and son's wife -- one room, (iii) drawing, study and staying of visiting sisters and relatives -- two rooms, (iv) maid servant and stores -- one room, (v) Thakurghar -- one room.
7. The finding that the plaintiff is entitled to get one room for his son and son's wife was arrived at on consideration of the acts that FW-5 is the plaintiffs only son, that PW-5 had been living with his father before marriage, that for want of accommodation of the suit premises plaintiff himself took the flat for them, that the word "himself" in clause (ff) of section 13(1) of the said Act includes family of the landlord and family Includes near relations of the head of the family. Relying upon the decision reported in 1982 NOC 50 Delhi the first appellate Court held that the sons and daughters of the landlord are included in the word "himself" when he claims eviction of the tenant for residence of himself. Regarding the requirement of other rooms the learned Courts below considered the social status and socio-economic background of the plaintiff after giving adequate reasons for such finding. As to the requirement of two rooms in the ground floor as the plaintiffs chamber and a waiting room for the patients the Courts below considered the measurement of the rooms, the status of the plaintiff and the Judgment and decree in the earlier eviction suit against another tenant of the ground floor where such requirement for chamber was pleaded, proved and upheld upto Supreme Court.
8. It is to be noted, therefore, that the considerations which led the learned Courts below to pass a decree for eviction in favour of the plaintiff/ respondent did not require any application of law. No principle of law was Involved in such decisions, let alone substantial point of law. The facts and circumstances of the case as transpired from the evidence on record, the social status of the parties, the requirement of the plaintiff in the light of the social status, religious custom of Hindu family, the measurement of the rooms on the basis of report of Inspection of the Advocate Commissioner, the relationship between PW-1 and PW-5 were all relevant considerations which actually have led the learned Courts below to come to the finding which has been impugned before this Court. The High Court in second appeal has no jurisdiction under section 100 CPC to interfere with such concurrent findings of both the Courts below.
9. In Ram Prasad Rajak v. Nand Kumar & Bros, , the Apex Court held, "The question relating to the bona fide requirement of the appellant does not give rise to any substantial question of law. It is entirely a matter to be decided on an appreciation of the evidence. In this case the High Court on a reappreciation of evidence Interfered with the finding of fact arrived at by the first appellate Court and came to the conclusion that the appellant landlord had failed to prove his bona fide requirement. The High Court has acted beyond Its jurisdiction in appreciating the evidence on record."
10. In Shed Chand v. Prakash Chand similar view has been taken by the Apex Court. In that case a suit for eviction on tenant on the ground of bona fide requirement of landlord-advocate for starting a business of General Store as he did not Intend to practise law. The concurrent finding of trial Court and appellant Court was that landlord's need was not genuine and bona fide. In second appeal single Judge of the High Court formulated the question of law as "whether the finding relating to bona fide requirement of the appellant of the courts below is vitiated due to the irrelevant consideration and not under law?" The Supreme Court held that the question formulated by the High Court was not even a question of law, let alone a substantial question of law. "There was no perversity, illegality or irregularity in those findings. The findings, therefore, did not require to be upset in a second appeal under section 10 CPC. The judgment of the High Court, under the circumstances, cannot be sustained."
11. In Satya Gupta v. Brijesh Kumar the Apex Court held, "In the present case the findings on facts by the lower appellate Court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. The High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower appellate Court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by It was also a possible view on the facts. The High Court, in is well settled, while exercising jurisdiction under section 100 CPC, cannot reverse the findings of the lower appellate Court on facts merely on the ground that on the facts found by the lower appellate Court another view was possible."
12. In view of the discussions made above I find that both the trial Court and the first appellate Court came to a concurrent finding of facts on the basis of evidences on record giving cogent reasons for the conclusions arrived at by them and such conclusions cannot be upset in this appeal as no substantive questions of law is involved and the concurrent finding of facts does not appear to be trained with any illegality, perversity or Irregularity. The appeal, therefore, is devoid of any merit and accordingly it is dismissed with costs. The appellant is given four months time from this date to vacate the suit premises failing which the decree shall be executable.
13. Appeal dismissed