S.K. Bhattacharyya, J.
1. This appeal by the defendant under Clause 15 of the Letters Patent is directed against the judgment and decree passed by M. M. Dutta, J. in Second Appeal No. 1162 of 1967 affirming the decision of the Courts below decreeing the plaintiffs suit for ejectment against the defendant.
2. The suit out of which this appeal arises was for eviction of a monthly tenant-at-will upon service of notice to quit on the ground of reasonable requirement,
3. The plaintiffs case, in brief, is that the defendant appellant had been in occupation of two rooms, kitchen and bath, in the ground floor of permises No. 16/1A, Ram Ratan Bose Lane, Shyambazar at a rental of Rs. 37/- per month payable according to English Calendar which was purchased by the plaintiff with the tenants in the premises. There were two other tenants, one in the first floor and another in the second floor and the plaintiff filed three suits of ejectmentagainst three tenants separately. The plaintiff alleged that he was living in a rented house with bis family and dependents and the accommodation therein was wholly insufficient. The plaintiff accordingly purchased the suit premises for better accommodation alleging that he reasonably required the same for his own use and occupation and thereafter caused a notice to quit to be served on the defendant-appellant requiring him to quit and vacate the disputed premises with effect from a certain date, but as the defendant failed and neglected to comply, the instant suit was instituted.
4. The defendant contested the suit raising various objections but in so far as the instant appeal is concerned, the defendant-appellant disputed the reasonableness of the plaintiffs requirement and further contended that the plaintiff was already in possession of a reasonably suitable accommodation and as such was not entitled to a decree for ejectment. No other point was pressed in this appeal.
5. The learned Munsif on a consideration of the evidence adduced in this case found in favour of the plaintiff and decreed the suit.
6. On appeal by the defendant, the learned Additional District Judge, 5th Court Alipore, agreed with the learned Munsif that the plaintiff has been able to establish his case of reasonable requirement of the suit premises for his use and occupation and accordingly dismissed the appeal.
7. The defendant thereupon preferred a second appeal to this Court. In the said appeal, the defendant prayed for adducing certain additional evidence and further contended that the requirement of the plaintiff stood satisfied as he has already recovered possession of four rooms in the suit premises and constructed two other rooms on the top floor. It was further contended on behalf of the plaintiff that the suit having been instituted within a period of three years of the acquisition of kndlord's interest by the plaintiff, was hit by the provisions of Sub-section (3-A) introduced in the West Bengal Premises Tenancy Act, 1956 (to be hereinafter referred to as the Act) by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. All these contentions were overruled by the learned Judge, who agreed with the Courts below on the question of reasonable requirement of the plaintiff. In that view of the matter, the learned Judge dismissed, the appeal and affirmed the judgment and decree passed by the Court below. Hence, this ap-peal with special leave.
8. Whilst this appeal was pending in this Court, the Supreme Court in the case of B, Banerjee v. Anita Pan reported in : 2SCR774 held that Section 13 of the West Bengal Premises Tenancy (Amendment) Act, being Act 34 of 1969 read with Section 4 of the Amending Act shall have effect in respect of suits, including appeals, pending at the commencement of the Act and the courts were bound to give effect thereto in pending actions, regardless of isolated anomalies and individual hardships. By Section 4 of the Amending Act, Clause (f) of Sub-section (1) of Section 13 of the Original Act was substituted by two new Clauses (f) and (ff) and Sub-section (3A) was introduced in the Statute Book prohibiting for a period of three years from the date of acquisition of a property, suits by new acquirers of landlord's interest in the premises, for recovery of possession on any of the grounds mentioned in Clauses (f) and (ff). The Supreme Court further pointed out that as the plaintiff landlord did not seek eviction on the ground mentioned in amended Clause (ff), the suit should have been dismissed on account of the omnibus inhibition on recovery of possession contained in Section 13 of the Act, but in working out the mechanics of this subsequently imposed ban and in order to give effect to the amendment, the Supreme Court permitted the parties therein to file fresh pleadings setting out the grounds under the amended clauses if they so wished. Accordingly, the plaintiff was permitted to amend the plaint in the instant appeal and the defendant also filed an additional written statement which were accepted and fresh issues, arising from the fresh pleadings were framed by us in the following terms:--
1. Is the premises in dispute reasonably required by the plaintiff-respondent for his own occupation and for the occupation of the members of his family?
2. Is the plaintiff-respondent in possession of any reasonably suitable accommodation?
9. Mr. Dasgupta the learned Advocate appearing for the appellant seeks to assail the decision of the courts below mainly on three grounds. It is contended in the first place that the reasonableness of the requirement of the landlord in the context of the subsequent pleadings stands self-condemned inasmuch as in the initial pleading the respondent-landlord set out a case for requirement of 18 persons, which could not he established in evidence for more than 11 persons, but at the time when the additional pleadings were filed in this court, pursuant to the decision of the Supreme Court in thecase of B. Banerjee v. Anita Pan : 2SCR774 (supra) the landlord opened his mouth too wide and set out a case for requirement of 35 persons, This tailored requirement, according to Mr. Dasgupta, saw the light of the day only after the Supreme Court decision became known in or about June, 1975 and the landlord's requirement as such, was mala fide and motivated. In the next place, Mr. Dasgupta contended that even if the reasonableness of the requirement of the landlord is accepted, he has patently failed to establish that he was not in possession of a reasonably suitable accommodation already. On the contrary, Mr. Dasgupta contends that the existing accommodation available to the landlord at premises Nos. 16/1A, Ram Ratan Bose Lane. Shyambazar and 2/1A. Bhupen Bose Avenue Shyampukur is not only reasonably suitable but more than satisfied the requirement of the plaintiff on the basis of the case originally made out in the plaint. Mr. Ghose the teamed Advocate appearing on behalf of the respondent landlord, on the other hand, contended that the reasonable requirement of the landlord can never be static and during the 12 years that the suit and the appeal are pending this requirement of the landlord increased several fold as the family has grown and the business of the plaintiff has expanded, with the result he now has to cater to the requirement of a larger number of persons daily, quite apart from the members of his own family. In the next place, Mr. Ghose contended that the appellant not having taken or canvassed any ground in the second appeal that the existing accommodation available to the plaintiff at that date was sufficient to satisfy his requirement and was also reasonably suitable, the appellant cannot now be permitted to contend that the accommodation available at Bhupen Bose Avenue premises, in which the plaintiff had a precarious stake, being a bharatia under a thika tenant in respect of a mud kotha. Mr. Ghose further contended that this being a Letters Patent appeal, the appellant cannot be permitted to increase its scope than he would have been entitled to in a second appeal.
10. To take up Mr. Ghose's last objection first, it is to be pointed out that ordinarily in an appeal under Clause 15 of the Letters Patent a point whether involving a question of law or on fact cannot be allowed to be agitated when that point was never taken in the courts below or even in the second appeal before the High Court at any earlier stage. We need refer only to one case in this connection, namely the case of Shan-baggakannu v. Muthu Bhattar, reported in : AIR1971SC2468 , but in the said appeal the Supreme Court pointed but that the question for consideration would be otherwise, if fresh pleadings are put in and the other party is granted a proper opportunity to meet such a case. In the instant case the plaint, pursuant to the decision of the Supreme Court in the case of B. Banerjee v. Anita Pan : 2SCR774 ) (supra), had been allowed to be amended by us and in our view, it would now be open to both parties to canvass those points that arise out of those fresh issues, even though those may not have been taken up at any earlier stage of the present proceeding including the second appeal in this Court.
11. Let us now examine the contention put forward by Mr. Dasgupta in so far as the reasonableness of the requirement of the plaintiff and the availability of a suitable accommodation by him is concerned. Before we advert to the evidence adduced in this case, it will be necessary to dispose of a point of law canvassed by Mr. Dasgupta in this connection. Mr. Dasgupta contends that the reasonableness of the requirement of the landlord under Section 13 (1) of the Act is not merely subjective, but also objective and should be ascertained by the court as a ground for eviction of the tenant not only by emphasizing the benefits to the landlord by way of his financial gain or convenience to his business, but by weighing his genuine or real requirement with the inconvenience that the tenant will suffer by his eviction. In support, Mr. Dasgupta relied on the decision of a learned single Judge of this Court in the case of Bimalendu Bhusan Das v. Firm Mitra and Ghose reported in : AIR1973Cal515 . Applying the above standard, the learned single Judge in the above-cited case came to the conclusion that the requirement of the landlord was not a reasonable one. This decision, in our view, cannot be regarded as correct.
12. Clause (f) of Section 13 (1) of the present Act as it stood before the amendment, was on identical terms with the provisions of Clause (h) of Section 12 (1) of the West Bengal Premises Rent Control (Temporary Provision) Act, 1950, which is the forerunner of the present Act, In Clause (h) of Section 12 (1) of the 1950 Act, there was an exaplanation, which required the court in determining the reasonableness of requirement of the landlord for purposes of building or rebuilding to have regard to the comparative public benefit by extending or diminishing accommodation and for determining the reasonableness of requirement Aaccommodation the court was to have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the premises were held and of the tenants. This guideline, which enjoined on the court to take into consideration the comparative advantage or disadvantage of both tbe landlord and the tenant in determining the reasonableness of the requirement of the landlord for his occupation has been deleted from Clause (f) of Section 13 (1) of the 1956 Act as it stood before the amendment. Consequently, these considerations which were imperative for the court to consider in determining the reasonableness of requirement whether for the purpose of building or rebuilding or for the purpose of occupation is, in no longer in the statute and the Courts are, therefore, free to consider the reasonableness of the requirement in Clause (f) (now Clauses (f) and (ff)) without adverting to the comparative advantage or disadvantage of the tenant or the landlord. The legislature advisedly dropped the explanation occurring in Clause (h) of Section 12 (1) of the old Act at the time of re-introducing Clause (f) of Section 13 (1) of the new Act on substantially identical terms and it appears to us that it is no longer the legislative intent to test the reasonableness of the requirement of the landlord on the touchstone of the tenant's advantage or disadvantage. The decision of the learned single Judge in the case of Bimalendu Bhusan Das failed to take into consideration this material change in the provision of Section 13 (1) (f) of the 1956 Act.
13. The expression 'reasonably required' in Clause (ff) has not been defined in the Act. The requirement postulated by the legislature must be reasonable requirement of the landlord for his own occupation if he is the owner ..... by which it must betaken to mean that the landlord requires it for the purposes of his occupation. Such a requirement in order to be reasonable must have some relation to the actual need of that person for such kind of occupation and the test, in our view, must relate to the standard of requirement of a reasonable man under circumstances occurring in the particular case and not to his whim or caprice. Judged by that consideration plaintiffs requirement has to be tested in the light of the requirement of a reasonable man with a family similar to that of the plaintiff. We, therefore, do not think that the inconvenience caused to the tenant should play any part in our consideration, although the landlord is bound to prove the reasonableness of his requirement, which signifies not merely a desire on the part of the landlord but he is further required to es-tablish that there is an element of need, besides making out that he was not in possession of a reasonably suitable accommodation already.
14. The examination of the evidence adduced by the parties in this case both at the trial stage and in this court would undoubtedly show that the case as originally made out by the plaintiff in the plaint and in his evidence in the trial court has undergone substantial change. Admittedly, the plaintiff purchased the premises in suit on October 1,1963 with the appellant and two other tenants in occupation of the suit premises. In1964 he filed three suits for ejectment against the three tenants and obtained three decrees for eviction on the ground of reasonable requirement in each case. The premises con-tains six rooms, two in each floor besides kitchen, bath, privy and other amenities. At the time when the premises was purchased, the plaintiff with part of his family and some employees were putting up in a matkotha at 2/1A, Bhupen Bose Avenue as a bharatiya under one Shyamlal Sahu, who was a thika tenant. There is no denying the fact that the interest of this Shyamlal Sahu has since been terminated and the plaintiff has temporarily become a tenant under the landlord of the said premises Sm. Renuka Bose. The matkotha at No. 2/1A, Bhupen Bose Avenue contains three rooms and a kitchen, the size of each room, according to the plaintiff, being about 10 feet x 8 feet and that of kitchen being 6 feet x 4 feet. From the Commissioner's report submitted in this case it appears that the size of the rooms in the said premises was 10 feet 6 inches x 9 feet 6 inches, whilst the six rooms in the disputed premises at No. 16/lA, Ramratan Bose Lane, according to the Commissioner, measures more or less 12 feet x 8 feet 4 inches on the ground floor (one of the rooms being irregular in size), but according to the plaintiff the size of the six rooms in the said premises is 12 feet x 9 feet and that of the thakurghar on the top floor is 9 feet x 7 feet. Of these six rooms in premises No. 16/lA, Ramratan Bose Lane, plaintiff respondent admittedly obtained possession of four rooms after the disposal of the connected first appeals, Consequently, the plaintiff is now in possession of two rooms on the first floor, two rooms on the second floor and the thakurghar on the top floor of the premises plus four rooms at the tenanted premises at No. 2/1A, Bhupen Bose Avenue, Calcutta. This accommodation, according to Mr. Dasgupta, satisfied thetailored requirement of plaintiff in terms of Clause (ff) of Section 13 (1) of the Act, Mr.Dasgupta accordingly contends that as the plaintiff is already in possession of a reasonably suitable accommodation, he is not entitled to a decree far eviction against the present appellant on the ground of his reasonable requirement. We are unable to accept this contention of Mr. Dasgupta. Apart from the fact that all the three courts have found that the requirement of the plaintiff would not be satisfied by his occupation of five rooms of the disputed premises and the plaintiff really requires all the six rooms (now seven) of the said premises for his own use and occupation. It does not appear that in the second appeal the defendant took the position that the plaintiff's requirement would be fully satisfied by possession of the five rooms in the disputed premises together with occupation of the four rooms of the tenanted premises at No. 2/1-A. Bhupen Bose Avenue. We do not think that the accommodation at No. 2/1-A, Bhupen Bose Avenue should be taken into consideration in assessing the reasonableness of the requirement of the plaintiff in this case; for to do so would have the effect of splitting up of the family of the plaintiff into two parts, which the law does not require. There are no materials on record to show how far and at what distance is one premises from the other, Mr. Dasgupta concedes that the walking distance from one premises to the other would not be less than five minutes. That by itself would show that the family of the plaintiff perforce would have to be split up into two parts with all its attendant evil effects. Besides, the plaintiff has stated in his evidence that he has been permitted by the owner Renuka Bose to stay in the said premises till he recovers possession of his house at Ramratan Bose Lane, Calcutta. We, therefore, do not think that the accommodation available to the plaintiff at 2/1A, Bhupen Bose Avenue should be taken into consideration in assessing the suitability or otherwise of the accommodation now available to the plaintiff.
15. But the main argument of Mr. Dasgupta is that the plaintiffs requirement has been tailored to make it look reasonable and in his cross-examination, the plaintiff has opened his mouth very wide. For this purpose Mr. Dasgupta drew our attention to the case made out by the plaintiff in the original plaint where the requirement was for 18 persons, of whom 11 persons were the members of the family and 7 were employees. The same requirement has now been enlarged to accommodate 36 persons, of whom 22 are members of the family and 14 are stated to be employees. This according to Mr.Dasgupta renders the plaintiff's case mala fide and motivated. The plaintiff in his evidence before this Court admitted that he when he filed the suit in 1964, he pleaded for the requirement for 18 persons but asserts that at present he had 36 members of whom 22 are members of his family and 14 are his employees engaged by him on weekly or monthly basis (vide answer to questions 240 and 245). The plaintiff was asked to produce the ration cards for the members of his family and his dependents and he produced 24 permanent ration cards of whom 17 belonged to the members of his family and 7 to persons employed by him. After the plaintiff obtained possession of the first and second floor rooms of Ramratan Bose Lane premises, 17 or 18 persons are stated to have shifted to that house and started living there and about 7 persons continued to live in the Bhupen Bose Avenue premises. The names of those persons, who were living at Ramratan Bose Lane premises were given out by the plaintiff in answer to question No. 97. On being asked to explain why there is a variation in his requirement, the plaintiff in answer to question No. 105, stated that when he instituted the suit, the number of the members of his family were 11. Subsequently children were born to his sons and the family increased. Not only the size of the family increased, but he also started a second shop and the number of the employees also increased. This was further elaborated in answer to question No. 52 where the plaintiff stated that some members of his family used to stay at his native place and one party would come here and stay for about three or four months and would then go back and another party would come and stay. It was mostly the ladies of the family, who continued to come in this fashion by rotation, because it was difficult to keep them all at the same time due to paucity of accommodation. Mr. Dasgupta sought to point out that the ration cards held by the plaintiff, particularly for his employees and also for some members of his family would show that they had been taken out recently and the case sought to be made out by the plaintiff cannot therefore be accepted. In answer to question No, 134, the plaintiff admitted that as against the ration cards, some of the holders were not at present residing with him, but in place of the old employee, a new employee was there and he used to draw ration for them against cards standing in the name of his old employees. This conduct on the part of the plaintiff may not have been strictly in accordance with the provisions of the rationing regulations, but we do not think, it should have an impact onhis requirement here. It is not difficult to see that a man placed in a predicament as the plaintiff was placed, would probably have acted in more or less similar fashion. We therefore propose to scrutinise the case on the basis of the basic minimum requirement of the plaintiff. There is little doubt that the plaintiff's family has increased considerably since the institution of the present suit in 1964 and the volume of his business has also increased considerably. Instead of having one shop, he now owns two shops dealing in foodgrains and other edibles, both in retail and wholesale and his standing in the business has been fully made out before us. He has adduced evidence to show that he pays considerable amount by way of income and sales-taxes. We need not enter into the details of these evidence, but there can be little doubt that the plaintiffs family now consists of self, wife, father Deonandan, three married sons Sew Sankar, Uma Sankar and Rabi Sankar, one unmarried son, three married daughters-in-law, eight children of his eldest son and one very young child of his third son and his unmarried daughter Sharmila. Besides, he claims to have a durwan, a cook, a servant and a maid servant, who of course do not stay in the house. If we leave aside the employees, who according to the convention of the plaintiff's business, are to share accommodation and food in his family, the plaintiff's family as made out in evidence and as accepted by all the courts below, would certainly require six rooms, if not more, for their accommodation. The plaintiff and his wife between themselves would certainly require one room and his three married sons with their respective wives would also require a room each, The children numbering nine, (of whom two only are below five years) would require at least one room, if not more, for their study (and many of them are school going), one room for kitchen and another for the unmarried daughter, This would account for all the rooms in the premises and neither the servant nor other relations or visitors would have any accommodation for them left in the premises. So, for the basic minimum requirement of the plaintiff, he would require all the six rooms plus a thakurghar on the top floor and the existing accommodation whether in Ramratan Bose Lane premises singly or conjointly with that of premises No. 2/1A, Bhupen Bose Avenue would not satisfy the requirement of a reasonably suitable accommodation for the plaintiff. There are at least 7 persons residing in the Bhupen Bose Avenue premises, who by reason of convention or long-standing practice are required to reside with the plain-tiff and have their meals with him. The defendant did not seriously dispute the existence of the number of members of plaintiff's family, but it was asserted by him that many of them usually stays or resides in his native village in Uttar Pradesh. Plaintiff has explained the circumstances why he had to keep a part of his family in his native village and we are satisfied that he was compelled to do so in the circumstances in which he found himself placed. The defendant further attempted, somewhat belatedly, to show that the plaintiff had some other alternative accommodation in the city, but in this he has totally failed. Such a case was not made out even in his additional written statement nor was it suggested to the plaintiff in his cross-examination in this court. Except for the mutkhota at Bhupen Bose Avenue, no other accommodation is available to the plaintiff in the City and this accommodation, we have already found, is not a reasonably suitable accommodation. In any view of the matter, therefore, we must hold that the plaintiff has been able to make out a case of reasonable requirement of the suit premises for his own use and occupation and it must further be held that the plaintiff does not have a reasonably suitable accommodation already. These two issues are, therefore, answered in plaintiff's favour.
16. It follows, therefore, that the instant appeal must fail and is accordingly dismissed. The judgment and decree of all the courts below are hereby affirmed.
17. The defendant appellant is granted time till 30th of November 1976 to vacate the premises in dispute provided that the defendant appellant continues to deposit an amount equivalent to the rate of rent month by month according to English Calendar by the 15th of each month in the trial court, the first of such deposits is to be made by the 15th August 1976 and the rent for the month of November 1976 is to be deposited by the 30th November 1976, failing which the plaintiff respondent would be at liberty to execute the decree.
18. In the circumstances of the case there will be no order as to costs in this appeal.
19. I agree.