Calcutta High Court
Sashi Sekhar Bhowmick vs Smt. Susama Bose And Ors. on 1 March, 1988
Equivalent citations: AIR1988CAL426, AIR 1988 CALCUTTA 426, (1988) 1 RENCJ 752
JUDGMENT L.M. Ghosh, J.
1. Ejectment Suit No. 515 of 1973 was filed by Late Nripendra Nath Bose. the plaintiff, against the defendant, Shri Sashi Sekhar Bhowmick for ejectment in respect of the suit premises being 1st floor flat at No. 9/4/B, Jagadish Nath Roy Lane, on the grounds of default, reasonable requirement, causing annoyance etc. A notice to quit was said to have been served upon the defendant on 16-8-72, by which the defendant was required to vacate the suit premises on the expiry of the last day of September, 1972. As regards the ground of reasonable requirement, the plaintiff stated that he had a big family, consisting of himself, his wife, three unmarried daughters, two sons and an unmarried brother. In the plaint, the plaintiff claimed that he required one room for himself and his wife, one room for the two sons. Besides, one room was required for the combined purpose of reading and of parlour. Then again it was set out that some accommodation was needed for the married daughter when she visited her parents with her husband. Another room for the accommodation of the servants was also said to have been necessary. As regards the ground of default, it was stated that the defendant became a defaulter since January, 1971. As regards the ground of nuisance and/or annoyance, the plaintiff just stated that the defendant used to introduce unknown young man to the house who often caused annoyance and even teased the grown up daughters.
2. The defendants denied all the allegations. Even the validity of theservice of the notice was not accepted. The defence case was that there were cases between the parties which embittered the relationship, specially, it was mentioned that the defendant had taken recourse to Rent Control proceedings, wherein the rent was reduced to Rs. 76/- per month. Out of grudge, it was alleged, the plaintiff filed the suit.
3. There was an appeal to this Court from the decree for ejectment of the trial Court. This Court, by its order dated 5th May. 1982, framed some additional issues and remitted the case back to the Court below for recording its finding on those issues. The additional issues framed are as to whether the plaintiff was already in occupation of any other reasonably suitable accommodation, whether or not there has been any change in the material circumstances regarding the plaintiff's alleged reasonable requirement and whether the plaintiff required the premises under Section 13(1)(ff) of the West Bengal Premises Tenancy Act.
4. After the case was remitted back to the Court below, the learned Judge recorded the additional evidence. Thereafter, he decided all the three additional issues in favour of the plaintiff. With these findings, the records have been sent back to this Court.
5. Mr. S. P. Roy Chowdhury, the learned Advocate for the appellant, has submitted that after the decree was originally passed by the Court below and before the additional evidence was recorded by that Court, there had been serious changes of circumstances. It is a fact that on the date of the additional evidence was recorded, all the daughters of the original plaintiff got married. According to Mr. S. P. Roy Chowdhury, there has been a complete change of the context of need after that. Then again, on 4-11-85, the original plaintiff died. His heirs, that is the wife, the daughters and the sons were brought on record in place of the original plaintiff. That also, according to Mr. S. P. Roy Chowdhury, has brought about a substantial change of circumstances, in the context of the need for accommodation. Mr. S. P. Roy Chowdhury has further argued that it is a settled law that there is a distinction between desire and need. Several decisions have been cited by Mr. S. P. Roy Chowdhury on the point. The burden of his argument in this respect has been that the plaintiff must prove the actual need as on the date the matter is being disposed of and the element of desire should not be of any consideration.
6. Mr. B. K. Roy Chowdhury, appearing for the respondents, has submitted that there is no dispute regarding the proposition that the plaintiff is to establish the need for the accommodation, and not the mere desire. But, according to him, on the evidence available, it has been clearly established that the present substituted plaintiffs required the suit premises.
7. It is thus seen that at this stage, we are concerned only with the ground of reasonable requirement. The ground of default no longer survives in view of Order No. 19 and the ultimate judgment of the Court below. That has been decided against the plaintiff and there has been no cross-objection or argument against that finding. As regards the ground of nuisance or annoyance also, even in the Court below the same was not pursued to its logical conclusion. Upon a stray and erratic allegation of the plaintiffs, the Court below did not find that that ground prevailed. Again that finding of the learned Courl below stands concluded.
8. So only the ground of reasonable requirement does survive. The decisions cited by Mr. S. P. Roy Chowdhury clearly settled the point that 'require' means that there must be an element of need The case is an authority for the principles. In the case , also cited by Mr. S. P. Roy Chowdhury, it was held that the requirement must continue to exist on the date when the proceeding was finally disposed of. It was further pointed out that for making the right or remedy claimed by the party just and meaningful as also legal and factual in accord with the current realities, the Court could and in many cases must take cognizance of subsequent events and developments. Again, in the case , it was observed that the landlords' need must be shown to continue to exist at the appellate stage, once an appeal is preferred. Another case cited by Mr. S. P. Roy Chowdhury is : . The principles laid down are the same : "the Court has first to determine the extent of the premises which the landlord 'reasonably' requires; then the Court has further more to apply the test as to whether such requirement, as the Court considers reasonable, will be'substantially' satisfied by ordering partial eviction.
9. Thus, it is now well settled, first, that there must be an element of need in a suit for eviction on the ground of reasonable requirement and, if that need is established, to determine next the extent of the need And, in the last context, the question of partial eviction comes in.
10. Coming to the facts of the case, it is to be noticed that all the daughters of the original plaintiff have since been married, that is one major change of circumstances. Then there has been another change, whatever might be its impact, and it is that the original plaintiff died. That can have a bearing upon the question of factual requirement. So now, it remains an admitted position that the wife of the original plaintiff and her sons are residing in the premises at No. 9/4/B. Jagadish Nath Roy Lane, occupying the second floor and certain small rooms with asbestos sheds on the roof. So far there is no controversy. There is one controversy as regards the residence of the brother of the original plaintiff. On the dale the suit was filed, that brother, Debendra Nath Bose, was residing with the plaintiff, The evidence was led on that point and that was not controverted Then, after the matter came to this court, the defendant filed addilional written statement on 5-5-82. stating that Debendra Nath Bose. the brother of the original plaintiff, had left the place for good and was residing with another brother of his. To that. the answer of the plaintiff was that Debendra Nath Bose had temporarily left the place and would continue to reside in the old place, after his short visit. Subrata Bose, the son of late Nripendra Nath Bose, was examined as a witness for the plaintiff after the case was remitted back to the Court below. He stated that his paternal uncle, Debendra Nath Bose lived with them and only for a temporary phase, he was living in the house of another uncle of his, at Sovabazar, Calcutta. The defendant further examined himself after the case was remitted back. He tried to controvert the claim of the plaintiff that Debendra Nath Bose would continue to live with them. But he could not very effectively repudiate the claim of the plaintiff. His statement was that Debendra Nath Bose was not being seen in the disputed house for the last one year. He could not deny whether Debendra Nath Bose was one of the owners of the disputed property. He could not answer where Debendra Nath Bose was at that moment. Then, towards the concluding part of his evidence during cross-examination, he has flatly answered that he cannot say that if the plaintiffs' brother, Debendra Nath Bose has gone to Sovabazar in the house of his brother for a month or two. If the defendant himself cannot answer whether Debendra left for a temporary visit elsewhere, the plaintiffs' claim that he would still continue to be a member of the family cannot be said to have been effectively controverted. Mr. S. P. Roy Chowdhury has contended that non-examination of Debendra should give rise to an adverse presumption. We feel that the non-examination of Debendra. in the context of the evidence available cannot have much materiality. Both sides have described Debendra as not being a man of normal faculties. Such being she position, it would have been futile lo examine Debendra.
11. So we accept the plaintiffs' versions that Debendra had not left the original residence for ever. Some provisions there must be on his account. The plaintiffs' claim for one room in that account is not unreasonable. Then the wife of the original plaintiff undoubtedly requires one room. There are two grown up sons. From the evidence on the record, we get that they are of mature age. It would not be unreasonable to demand two rooms for the two sons. That demand of the plaintiffs must also be allowed. It has also been claimed on behalf of the plaintiffs that one more room would be needed for the occasional visits of the married daughters. Whether of the married daughters, would depend upon the facts of the particular case (sic). In certain cases, it may be necessary to make provision for some accommodation even for the unmarried daughters. No hard and fast or inflexible rule can be laid down. But here, in this case, such a case is not developed in evidence. Subrata, examined in the Court below, has merely stated that the sisters often have to visit to look after or to render assistance to the aged mother. That may be the case, but a specific case for a separate room is to be made out. It is not made out by cogent evidence that the married sisters would be coming, along with their husbands, to the premises. That evidence is wanting and the Court cannot make out a case in favour of the plaintiffs. It is to be borne in mind, as observed earlier, that the plaintiff must prove the need objectively. There is no scope for making any assumption or conjecture. We do not find that here, a case has been made out for a provision for the accommodation of the married daughters. It may not be out of context to observe that the bed room that the widow is occupying is a very big one, measuring 22' 6" x 13' 6". There is no reason to suppose that the daughters, when they come, cannot be accommodated in this room, particularly when it has not been developed by evidence that they would require a separate room.
12. So we get objectively that the plaintiffs require four rooms. The Commissioner's plan for the second floor discloses that there are rooms, described as bed room, drawing room and lobby. From the measurement of the Commissioner, we find that the lobby is also of quite considerable size, 16' 4" x 10'4". There are three windows and two doors, with an opening space to go to the bathroom. For all purposes, it is quite a good living room, whether it be described as a lobby or otherwise. The other room, described as drawing room, is also of quite considerable size - 16' 5" x9' 5". Weget, therefore, that there are actually three living rooms. Besides, there are some asbestos sheds on the roof. We feel that the plaintiffs' requirement would be substantially satisfied, if they get possession of one more room out of the suit premises in the occupation of the defendant. And that brings us to the question of partial eviction. Under Section 13(4) of the West Bengal Premises Tenancy Act, if the Court is of opinion that the requirement of the plaintiffs may be substantially satisfied by ejecting the tenant from a part only of the premises the Court then can pass such a decree, of course with the consent of the tenant, Mr. S. P. Roy Chowdhury, the learned Advocate, appearing for the tenant-defendant, has candidly submitted that in case it be found that the plaintiff would require some more accommodation and in case it be also found that such demand can be made by partial eviction, his client is willing to have a decree for partial eviction being passed. That is to say the consent of the tenant in such an eventuality has clearly been conveyed Having the consent of the tenant, and having found the need of the plaintiffs, we feel that it would be just and proper to pass a decree for partial eviction. We have also taken into consideration the configuration of the rooms on the first floor. We find, from the sketch map of the Commissioner, marked Ext. 6 that the bed room on the first floor on the eastern side adjoins the stair-case. It would be convenient to all the parties to allow the plaintiffs to possess that eastern room adjoining the stairs-case as that would cause the least disruption. It is now necessary to fix the proportionate rent. The rent of the entire premises is Rs. 76/- per month. We feel that it would be just if the proportionate rent for the eastern bed room is determined at Rs. 25/-per month. That means, the rent of the tenant for the remaining portion of the premises would be reduced to Rs. 51/- per month. We make it clear that the plaintiffs would get possession only of the eastern bed room adjoining the stair-case and the defendant would continue to have in his possession that rest of the suit premises, i.e. the other bed room, the lobby, kitchen, the balcony, privy etc. The plaintiffs would have uninterrupted possession of the eastern bed room, that is to say, he would not be hindered in opening the windows in any way, save and except that, the plaintiffs would have no access either to balcony or to any other part.
13. We allow the appeal accordingly. The judgment and the decree of the Court below are hereby modified. The plaintiffs' suit for eviction against the defendant is allowed in part without costs. The plaintiffs-respondent to get decree for khas possession in respect of the eastern bed room adjoining the staircase on the 1st floor after evicting the defendant therefrom. The proportionate rent in respect of the remaining portion of the suit premises is fixed at Rs. 51/- per month. The defendant to give possession of this bed room adjoining the stair-case on the 1st floor by the 1st of May, 1988. The proportionate rent would beeffective from the date the plaintiff-respondents get possession of the room. The remaining portion of the suit premises would remain in the possession of the defendant. In case the defendant does not vacate the room, described before, the plaintiff-respondents would be able to get possession of the same by executing the decree. The parties to bear their own costs in this appeal.
S.P. Das Ghosh, J.
14. I agree.