Calcutta High Court
Smt. Basanti Das And Ors. vs Kulada Prosad Bhowmick Alias Bhowmik on 11 May, 2005
Equivalent citations: (2005)3CALLT369(HC)
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. This second appeal is directed against the Judgment and decree dated 10th October 1996 passed by the learned Assistant District Judge, 1st Court at Alipore in Title Appeal No. 815 of 1986 reversing the Judgment and decree dated 3rd September 1986 passed by the learned Munsif, 3rd Court at Alipore in Title Suit No. 420 of 1981.
2. The appellants in this appeal were the plaintiffs in a suit for eviction of a tenant for reasonable requirement of the plaintiffs/landlord under Section 13(1)(ff) of the West Bengal Premises Tenancy Act.
3. The suit was decreed by the learned Trial Judge on contest. The learned first Appellate Court reversed the said decree in appeal filed by the tenant/defendant.
4. Since neither of the parties addressed this Court on any other issue excepting the issue as to whether the plaintiffs/appellants feasonably require the suit premises for their own use and occupation or not, this Court restricts its consideration only to the said issue.
5. The suit for eviction on the ground of reasonable requirement of the plaintiffs which was filed in 1981 is pending for ultimate decision before this Court at the stage of the second appeal till date. Various changes occurred either in the number of members of the family or in the nature of the requirement of the plaintiffs during this long period of litigation.
6. Considering the nature of the requirement of the plaintiffs and the members of their family as on the date of passing the decree by the learned Trial Judge, the learned Trial Judge held that the plaintiffs reasonably require one room for the plaintiff No. 1 (widow mother), one room for two grown up unmarried daughters aged about 35 and 31 years respectively, one room for two unmarried sons, aged about 35 and 30 years respectively and one drawing-cum-study room. Thus, the learned Trial Judge found that the plaintiffs reasonably require at least four rooms to meet their requirement.
7. The learned Trial Judge found that the plaintiffs are in possession of an accommodation consisting of two living rooms, one room as store room and one Pucca wall asbestos shed room which is being used as kitchen room. Accordingly, the learned Trial Judge held that the accommodation available to the plaintiffs is insufficient to meet their requirements.
8. The learned Trial Judge thus held that the suit premises consisting of two living room, one store room and a kitchen, is reasonably required by the plaintiffs to meet their requirement. Accordingly, a decree for eviction was passed on the ground of reasonable requirement of the plaintiffs.
9. It may be noted herein that there was no dispute with regard to the ownership of the plaintiffs/landlord in the suit premises.
10. The said decree was challenged by the defendant/respondent in appeal giving rise to Title Appeal No. 815 of 1986 before the learned Additional District Judge, 1st Court at, Alipore.
11. During the pendency of the said appeal certain changes occurred in the requirement of the plaintiffs. The daughters of the plaintiff No. 1 got married. Similarly, one of the sons of the plaintiff No. 1 got married. The marriage of the other son of the plaintiff No. 1 could not be arranged though he attains marriageable age due to lack of accommodation. Simultaneously, additional accommodation came to the hands of the plaintiffs as the other tenant, viz., Naren Dutta vacated his tenancy in the said premises consisting of two living rooms. Thus, the present accommodation of the plaintiffs in the said premises consists of four living rooms, one room as storeroom and one Pucca wall asbestos shed room which is being used as kitchen room.
12. After considering the aforesaid changes, the learned first Appellate Court held that the plaintiffs require one room for the married son of the plaintiff No. 1 and his wife, one room for the unmarried son of the plaintiff No. 1 who was aged about 35 years at the time of disposal of the first appeal, one room for the plaintiff No. 1 (widow mother) and one room for drawing-cum-guest room where the married daughters can be accommodated for few days. The learned first Appellate Court held that the Varandah can also be used as dining space. Thus, the learned first Appellate Court held that the existing accommodation which was available to the plaintiffs at the relevant time was sufficient to meet their requirement. Holding as such, the learned first Appellate Court held that the tenancy of the defendant/respondent need not be disturbed.
13. Accordingly, the Judgment and decree of the learned Trial Judge was reversed by the learned first Appellate Court.
14. The said decree passed by the learned first Appellate Court is under challenge in this second appeal before this Court at the instance of the plaintiffs/landlords.
15. At the time of the admission of the appeal, no substantial question of law under Section 100 of the Code of Civil Procedure was formulated by the Division Bench of this Court. In course of hearing of this appeal, the following substantial questions of law were formulated by this Court and the same was circulated to the learned Advocates of the respective parties:
"i) Whether the Judgment of the Court of appeal below was vitiated by failing to apply the basic tests regarding determination of the question of reasonable requirement for own use and occupation?
ii) Whether the Judgment of the Court of appeal below was a perverse one which no prudent man can be reasonably expected to make?
iii) Whether the Judgment of the Court of appeal below was a proper Judgment of reversal?"
16. Let me now consider the submissions of the learned counsel appearing for the respective parties.
17. Mr. Roychowdhury, learned senior advocate, appearing for the plaintiffs/appellants, submitted before this Court that the findings of the learned Court below regarding the reasonable requirement of the plaintiffs is vitiated by application of wrong basic tests regarding determination of the question of reasonable requirement for own use and occupation of the plaintiffs/ landlords.
18. Relying upon the decision of the Hon'ble Supreme Court in the case of Budhwanti v. Gulab Chand Prasad , Mr. Roychowdhury submitted that once it is found that the findings of the learned first Appellate Court is vitiated by application of wrong basic tests regarding determination of question of reasonable requirement, the High Court even in second appeal can set aside such patently erroneous findings in order to render justice to the parties, though ordinarily the High Court should not disturb the erroneous findings of law and fact arrived at on wrong appreciation of evidence.
19. Mr. Roychowdhury contended that the reasonable requirement of the plaintiffs of one room for the widow mother (plaintiff No. 1), one room for the married son of the plaintiff No. 1 and his wife, one room for the unmarried son of the plaintiff No. 1, one drawing room had been found by the learned first appellate court. Besides the said requirement, the learned first Appellate Court also found that the plaintiffs require one drawing room, one dining space and an accommodation for the occasional visits of the married daughters of the plaintiff No. 1.
20. Thus, if these requirements are found to be reasonable, then the requirement of the plaintiffs of the suit premises as a whole cannot be denied. But, the learned first Appellate Court denied the decree by holding that the drawing room can be utilised for a combined purpose, i.e., for attending the guests as well as for accommodating the married daughters during their occasional visit and the Varandah can be utilised for dining purpose. Thus, by adjusting the said two requirements of the plaintiffs, i.e., for accommodating the married daughters and the dining room in the manner as aforesaid, the learned first Appellate Court set aside the decree of the learned Trial Judge.
21. By relying upon the decisions of the Hon'ble Supreme Court in the case of Ragavendra Kumar v. Firm Prem Machinery & Co. and also in the case of Akhileshwar Kumar and Ors. v. Mustaqim and Ors. , Mr. Roychowdhury submitted that it has been uniformly held by the Hon'ble Supreme Court that once it has been proved by the landlord that the suit accommodation is required reasonably by him for his own purpose and such satisfaction withstand the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy and the Court cannot thrust its own choice upon the needy.
22. Mr. Roychowdhury further submitted that it is no doubt true that the choice has to be exercised reasonably and not whimsically as the words "reasonable requirement" postulate that there must be an element of need as opposed to mere desire or wish. The distinction between desire and need has been made out by the Hon'ble Supreme Court in the case of Bega Begum v. Abdul Ahad Khan , wherein it has been held that "reasonable requirement" means genuine need and not desire which should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Thus, a balance is to be maintained between the genuine need of the landlord on one hand and great inconvenience and trouble of the tenants on the other.
23. Relying upon the aforesaid decisions of the Hon'ble Supreme Court, Mr. Roychowdhury submitted that the finding of the learned first Appellate Court whereby the learned first Appellate Court thrust its own choice on the requirement of the plaintiffs regarding their need for accommodation of the married daughters and one dining space and a separate drawing room, cannot be sustained as such findings are absolutely perverse which a man of ordinary prudence cannot conceive of.
24. Mr. Roychowdhury thus submitted before this Court that Varandah cannot be treated as reasonable suitable alternative accommodation for a dining room. Mr. Roychowdhury further submitted that a drawing room cannot be utilised for a combined purpose i.e., for attending the guests as well as for accommodation of the married daughters of the plaintiffs during their occasional visit.
25. Thus, if this requirement is taken into account, then there is no other way but to conclude that the plaintiffs reasonably require the suit premises. According to Mr. Roychowdhury, non-application of the said basic test vitiates the Judgment and decree passed by the learned first Appellate Court.
26. Mr. Banerjee, learned Advocate, appearing for the respondent submitted that the quantity and/or extent of requirement, being a question of fact, the findings arrived at by the learned first Appellate Court being the final Court of facts in this regard cannot be disturbed in second appeal by this Court.
27. To support the said contention. Mr. Banerjee relied upon a Division Bench decision of this Court in the case of A.K. Mukherjee v. Prodip Ranjan Sarbadhikary reported in 1987 (2)CLJ 229, wherein it was held as follows:
"5. Now if the requirement of the landlord is qualitatively reasonable, the quantity or extent of requirement would, by and large, be a question of fact and such a finding cannot be disturbed in second appeal even by the Mattulal test under the old Section 100 of the Code of Civil Procedure unless the same is based on no evidence or is so unreasonable as could not be come to by any reasonable person. We do not find the finding to be based on no evidence at all or to be so unreasonable either and we must, therefore, allow the finding to stand."
28. Mr. Banerjee further contended that since the requirement of the married daughters and of the dining room was not pleaded in the plaint, the respondent could not cross-examine the plaintiffs' witness on the said requirement of the plaintiff. As a matter of fact the respondent was taken by surprise and as such the said requirement of the plaintiffs which was not pleaded in the plaint ought not to have been considered by the learned Court below.
29. Mr. Banerjee further pointed out from the evidence of the D.W. 1 that apart from the existing accommodation available to the plaintiffs as disclosed in their pleadings and/or evidence, there are other two tile sheds in the plaintiffs' occupation which the plaintiffs suppressed. Thus, when additional accommodation is available to the plaintiffs, the plaintiffs cannot get a decree for eviction against the tenant unless the plaintiffs can show that the said accommodation is not reasonably suitable to meet their requirement.
30. Mr. Banerjee submitted that the said explanation is conspicuously absent. As such, the decree on eviction on the ground of reasonable requirement should be denied. In support of such contention, Mr. Banerjee relied upon a decision of the Hon'ble Supreme Court in the case of M.M. Quasim v. Manohar Lal Sharma wherein it was held that when examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. It was further held therein that to reject this aspect by saying that the landlord. Has an unfettered right to choose the premises is to negative the very raison d'etre of the Rent Act. It was further held therein that undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court.
31. Mr. Banerjee submitted that the aforesaid onus of the landlord has not been discharged in this case. Ultimately, Mr. Banerjee submitted before this Court that in a suit, for eviction of a tenant on the ground of reasonable requirement, a duty has been cast upon the Court under Section 13(4) of the West Bengal Premises Tenancy Act to consider as to whether the requirement of the plaintiffs can be satisfied by partial eviction. In the absence of such consideration, the decree for eviction cannot be sustained. According to Mr. Banerjee, if the requirement of the plaintiffs is considered as a whole, the said requirement can be satisfied by passing a decree for partial eviction as one additional room will be sufficient to meet the requirement of the plaintiffs as a whole.
32. In fact, Mr. Banerjee on instruction from his client present in Court submitted that his client is agreeable to surrender one storeroom measuring about 100 sq. ft. within his tenancy which can be used by the landlord to meet their requirement to accommodate the married daughters during their occasional stay. Mr. Banerjee further pointed out that the said storeroom has its independent access and is also situated adjacent to the portion in the landlord's occupation. As such, the landlord cannot feel any difficulty to utilise the said room conveniently.
33. In support of the said contention, Mr. Banerjee relied upon a decision of the Hon'ble Supreme Court in the case of Rahaman v. Ram Chand and submitted that the Apex Court of the land has made it clear that even in the absence of any specific pleading regarding partial eviction the Court has a duty to consider as to whether the requirement of the plaintiffs can be satisfied by partial eviction or not.
34. By relying upon the said decision, Mr. Banerjee submitted that since the parties have not led evidence in this regard, the suit may be sent back for consideration of the said issue regarding partial requirement after giving opportunity to the parties to lead evidence in this regard.
35. Thus, the ultimate prayer of Mr. Banerjee is to remand the suit for consideration of the issue regarding partial eviction under Section 13(4) of the said Act.
36. Let me now consider the submissions of the counsel of the respective parties in the backdrop of the instant case.
37. Admittedly, there is no dispute with regard to the size of the plaintiffs' family. The plaintiffs' family consists of plaintiff No. 1 (widow mother), one married son of the plaintiff No. 1 and his wife and one unmarried son of the plaintiff No. 1. Besides, the plaintiff No. 1 has two married daughters who are staying in their respective matrimonial residences.
38. Let me now consider as to what will be the reasonable requirement of such a family of the plaintiffs.
39. The plaintiff No. 1 (widow mother) requires one bedroom for herself. One bedroom is also reasonably required to accommodate the married son of the plaintiff No. 1 and his wife. Another bedroom is also required to accommodate the other son of the plaintiff No. 1 who has attained marriageable age. These are the undisputed requirement of the plaintiffs.
40. Now the question is as to whether in the absence of the pleadings in the plaint the Court can consider the requirement of the plaintiffs for a dining room and an accommodation for the married daughters of the plaintiff No. 1 for their occasional stay in the suit premises.
41. No doubt, normally evidence beyond pleading cannot be considered by the Court. The said principle which was settled in the case of Siddik Mahomed Shah v. Mt. Saran is still being followed as a good law, but there are exception to this general rule. On of such exceptions is that when even in the absence of the pleading, the parties proceed with the trial of the suit with their full understanding regarding the involvement of the issues in the suit and the respective cases of their adversaries, it cannot be said that the decision of the Court is vitiated by consideration of the evidence of the parties beyond their pleadings. Thus, the real test is to consider as to whether the parties were taken by surprise or not. The very same question has been answered by this Court in the case of Jagat Bandhu Batabayal v. Jiban Krishna Roy wherein this Hon'ble Court exactly in a similar situation held as follows:
"24. Though Mr. Bhattacharjee, learned counsel of the appellant submitted that the Learned Judge of the First Appellate Court should not have considered the evidence in absence of pleading but Mr. Dasgupta, learned counsel of the plaintiff submitted that the Court should not scrutinise the pleadings in such a way which would ultimately defeat the genuine claims on trivial grounds. Mr. Dasgupta cited the following decisions in support of his aforesaid contention:
1. , (Madan Gopal v. Mamraj) Paragraph-26.
2. , (Nagubai v. B. Shama Rao) Paragraphs 11 and 12.
25. Furthermore, the requirement of a Guest room for providing accommodation to the guests including the married daughters cannot be held unreasonable though the plaintiff never specifically mentioned for a separate room for his married daughters. The requirement of a Guest room for providing accommodation to the guests including the married daughters cannot be held unreasonable as the plaintiff has all along mentioned about his married daughters and the defendant-tenant was never taken by surprise before the Courts below. In dealing with the issue of reasonable requirement, the claim of the plaintiff for one Guest room particularly for accommodating the married daughters could not have taken by the defendant-tenant by surprise nor the said defendant could reasonably contend that such claim of the plaintiff could not be anticipated.
26. In today's world, one cannot insist that the landlord is entitled to one study-cum-drawing room only where television will be running and the children will attempt to study in an extremely competitive world. To maintain healthy relation with the relatives, in-laws and friends, one needs a guest room. The landlord is entitled to a comfortable living though may not be a luxurious one.
27. Therefore, while considering the specific issue regarding reasonable requirement of the suit premises by the plaintiff the Learned Judge of the First Appellate Court has justly considered the claim for Guest room. The defendant-tenant, in my opinion, since knew all along that the plaintiff has two married daughters could not possibly face any difficulty to meet the aforesaid claim of the plaintiff in relation to his actual reasonable requirement of accommodation. In the present case defendant knew that whether the plaintiff reasonably require the suit premises for own use and occupation is in issue and as the decision of the Privy Council as cited by Mr. Bhattacharjee and (supra) has no manner of application in the instant case as the issue in question was known to the defendant and the admitted fact regarding the aforesaid two married daughters of the plaintiff was also known to the defendant since the same was all along mentioned by the plaintiff in the pleading and evidence before the Courts below.
28. Furthermore, claims of the plaintiff for one Guest room for the purpose of accommodating the family guests including the married daughters and one Dining room and also one Drawing room must be considered as an essential requirement in a dwelling unit like bathroom, privy, kitchen etc. In my opinion, aforesaid essential requirements of the Landlord should automatically form an integral part of his reasonable requirement. One need not include evidence in the pleadings as is well settled. The rooms and spaces required are mere elaboration of reasonable requirement of the landlord. It is not necessary to give particulars in detail. The cause of action of the landlord is reasonable requirement. How much is required can be detailed in evidence. Therefore, the Learned Judge of the first Appellate Court rightly held that the plaintiff reasonably requires one Guest room and one Dining room along with the Bedrooms. Drawing room, besides Kitchen, Bathroom, Thakurghar etc."
42. In my considered view the principles as laid down in the aforesaid decision of the Hon'ble Court is the complete answer to the argument of Mr. Banerjee.
43. On consideration of the entire materials on record it cannot be said that the requirement of the married daughters of the plaintiff No. 1 was unknown to the defendant/respondent. The very ground being ground No. XX which was taken by the defendant/respondent in memorandum of appeal before the learned 1st Appellate Court shows that the defendant/respondent was aware of the plaintiffs' requirement regarding her two married daughters. For the sake of convenience, the said ground is set out hereunder:
"XX. For that the learned Munsif erred in granting separate rooms for mother and her two unmarried daughters but should have held that one room was sufficient for the purpose."
44. The said ground surely indicates that the defendant was aware of the plaintiffs requirement of the married daughters. Even the submission of Mr. Banerjee before this Court for surrender of the storeroom for the said purpose also goes to show that the defendant was not taken by surprise regarding the said requirement of the plaintiffs.
45. Only thing which, still remains is to consider as to whether the married daughters can be accommodated in the drawing room during their occasional stay as suggested by the first Appellate Court. In my view, this is an absurd proposition which no man of ordinary prudence can conceive of. No one can expect that two married daughters with their respective husbands a'nd/or their children will share the drawing room even for a day during their occasional visit in their paternal home. No one can restrict the visit of two married daughters with their family at their paternal home at a time. As such, the suggestion which has been given by the first Appellate Court for accommodating the married daughters in the drawing room during the occasional stay, cannot be accepted by this Court in view of the following decisions relied upon by Mr. Roychowdhury:
(i) Bega Begum v. Abdul Ahad Khan
(ii) Ragavendra Kumar v. Firm Prem Machinery & Co. and
(iii) Akhileshwar Kumar and Ors. v. Mustaqim and Ors. .
46. I do not find the existence of the two tile sheds, as pointed out by Mr. Banerjee, in the Commissioner's report. The Commission was held in presence of both the parties. Such accommodation which was allegedly available to the plaintiffs was even not pointed out to the Commissioner in course of holding the work of Commission. Admittedly no exception was taken by the defendant to the said Commissioner's report. As such, this Court cannot take note of the said accommodation at the time of consideration of this appeal. Even assuming that such an accommodation is available to the plaintiffs but still then the said accommodation cannot be reasonably suitable either for accommodating the married daughters or for user of the same as dining room.
47. As such, the decision which was relied upon by Mr. Banerjee in the case of M.M. Quasim v. Manohar Lal Sharma (supra) has no application in the facts of the instant case.
48. Similarly, find no substance in the submission of Mr. Banerjee regarding partial eviction, as in my opinion the entire suit premises is reasonably required by the plaintiffs for their own use and occupation.
49. The storeroom which the defendant intends to surrender cannot be regarded as reasonably alternative suitable accommodation either for the married daughters or for the dining space. Though Mr. Banerjee submitted before this Court that the size of the room is 100 sq. ft. but it appears from the Commissioner's report that the size of the said room with tile shed on the roof is 8'4" X8'l". In my view, the said room cannot be used for either of the said purposes for which eviction has been sought for. Furthermore, the Varandah cannot be utilised as a dining space.
50. Suitability of the accommodation as pointed out by Mr. Banerjee should be considered with reference to the suit premises, i.e., whether the storeroom and/or the tile shed and/or the Varandah can be treated as reasonably suitable alternative accommodation to meet the requirement of tne plaintiffs in comparison to the rooms in the suit premises. If I look the suitability of the existing accommodation from that angle, the only conclusion which the Court can arrive at, is that neither the drawing room nor the Varandah can be treated as a reasonably alternative suitable accommodation in comparison to the suit premises.
51. Thus, I hold that the entire suit premises is reasonably required by the plaintiffs/appellants for their own use and occupation. The plaintiff No. 1 (widow mother) requires one living room for herself. The married son of the plaintiff No. 1 with his wife require one living room for themselves. One living room is required for the unmarried son of the plaintiff No. 1. One drawing room and one dining room are also required reasonably by the said family of the plaintiffs. The plaintiffs also require one guest room for accommodating the married daughters during their occasional stay. Thus, the total requirement of the plaintiffs is six rooms. Admittedly, the plaintiffs have four rooms in their possession. There are two rooms in the suit premises. As such, the requirement of the plaintiffs of the entire suit premises cannot be denied.
The appeal thus stands allowed.
The judgmen: and decree of the first Appellate Court is set aside. The decree of the learned Trial Judge is thus restored.
The defendant/respondent is directed to deliver vacant and peaceful possession of the suit premises to the plaintiffs/appellants within two months from date, failing which liberty is given to the plaintiffs/ appellants to recover possession of the suit premises from the defendant/respondent by executing this decree.
Urgent xerox certified copy of this Judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.