R. Bhattacharya, J.
1. The defendant, K. Vasudev Rao, has come up with the instant Letters Patent Appeal challenging the decision arrived at in the first appeal before this Court affirming the judgment and the decree passed in favour of the plaintiff-respondent Jadu Nandan Trivedi in the original suit started in the City Civil Court at Calcutta.
2. Briefly stated, the plaintiff's case is that he is the owner of the premises No. 25A, Chittaranjan Avenue, Calcutta and that the defendant was a monthly tenant under him in respect of a room on the ground floor of the said premises at a monthly rental of Rs. 70/- payable according to the English Calendar. The plaintiff's allegation is that he reasonably requires the suit room for his own use and occupation because it is necessary for the use of his eldest son. Gaya Prosad Trivedi, a member of his family as his chamber in connexion with his legal practice. It has been stated that Gaya Prosad is in urgent need of a room on the ground floor to receive his clients, Other grounds for eviction of the tenant are that the defendant has been creating nuisance and annoyance to the plaintiff and other occupants of the house and neighbours by using a grinding machine, that he is guilty of acts of waste resulting in material deterioration of the condition of the house and that he made substantial additions and alterations of permanent nature by raising a wall, removing the door and digging out the floor of the room without the landlord's permission and consent. The defendant appeared and challenged the allegations made by the plaintiff. He has denied that the plaintiff requires reasonably the room in suit as alleged or that he did any act of waste or material deterioration of the house by making any construction or by digging the floor or by removing the door as alleged. The trial court on evidence found that the defendant is not guilty of either any nuisance or annoyance or of any act of waste or material deterioration of the house by making additions, alterations etc. as alleged. The learned Judge of the City Civil Court, however, was satisfied that the plaintiff required the suit premises reasonably for his own use and occupation as stated in the plaint. Ultimately the suit was decreed. In the first appeal taken by the defendant before this Court, one of our learned brothers, M. M. Dutt, J. on consideration of the contentions raised and materials On record held that the trial court had been justified in passing the decree on the ground of reasonable requirement of the plaintiff and affirmed the decision thereof. Against that decision the present appeal has been filed.
3. We have heard Mr. Dutt, the learned Advocate appearing On behalf of the appellant and Mr. Roy for the respondent
4. The first point that has been urged by Mr. Dutt on behalf of the appellant is that the learned Judge in the first appeal as well as the trial court did not properly consider the evidence on record regarding the alleged reasonable requirement of the plaintiff and for that purpose Mr. Dutt wants to discuss the evidence once again of each and every witness examined in the trial court. Mr-Roy from the side of the respondent, however, contends that in this Letters Patent Appeal Mr. Dutt cannot reagitate the questions of fact, which according to Mr. Roy, have been finally settled in the first appeal before Mr. Justice M. M. Dutt. The respondent's contention is that the appeal before us is as good as second appeal and, therefore, the findings of fact as to the question of reasonable requirement of the plaintiff cannot be reopened at this stage and this Court cannot go into the evidence to reassess the same for its own finding. Mr. Dutt has replied, however, that the High Court, while dealing with an appeal under Clause 15 of the Letters Patent, will be at liberty to reconsider the evidence on the question of fact and should come to an independent finding. In this connexion we may consider some of the decisions referred to by the learned Advocates of both the parties regarding the scope of the Court in a Letters Patent Appeal relating to the finding of fact arrived at in the first appeal.
4A. In the case of Bholabhai v. Rattan Chand reported in decided by a Division Bench, the powers of a Bench hearing an appeal under Clause 10 of the Letters Patent were considered. In that connexion the view of the learned Judges appears in the following words :
'Although there is not such rule either of procedure or practice by which a Bench hearing an appeal under Clause 10 of the Letters Patent is debarred from examining and reversing a finding on a question of fact given by the learned Single Judge, nevertheless, the appeal court would be reluctant to interfere with that finding unless there are very strong reasons for doing so.'
5. There is the Full Bench decision of the Patna High Court in the case of Sm. Asho Devi v. Dhuki Shaw reported in : AIR1965Pat472 (FB). This is an appeal against the judgment of a single Judge of the Patna High Court reversing the judgment of the 3rd Subordinate Judge, Patna and dismissing the plaintiff's suit for recovery of certain amount. This Full Bench decision affirmed the decision of a Division Bench of the Patna High Court in Ram Swarup Singh v. Muneswar Singh reported in : AIR1964Pat76 , where it was held, on a construction of Clause 10 of the Patna Letters Patent, that in an appeal against the first appeal judgment of a single Judge the restrictions imposed by Section 100 of the Code of Civil Procedure would apply and that the Division Bench will not be justified in interfering with mere findings of fact.
6. Our attention has also been drawn to the Division Bench decision of the Delhi High Court in Pt. Devi Charan v. Durga Prosad Chhanulal : AIR1967Delhi128 . There also the question arose whether a Division Bench of a High Court, while bearing the Letters Patent appeal from a first appeal which was heard by a single Judge of the High Court, can review even a finding of a fact. The Bench is, however, of the view that a Division Bench of a High Court in hearing a Letters Patent Appeal from a first appeal heard by a single Judge of the High Court can reconsider the findings of fact, particularly, when the judgment by the learned single Judge is not of affirmance, but of reversal of the judgment of the trial Court In this connexion a reference was made to an unreported decision of the Supreme Court dated 11-1-1963 in C. A. No. 232 of 1961 Alopafi Kashi Biswanathan v. A. Sivarama Krishnaiya. A portion of the unreported decision of the Supreme Court has been quoted in the judgment. No other reported decision of the Supreme Court in this respect has been brought to our notice. We, however, quote the relevant portion of the unreported Supreme Court decision as follows:
'A Letters Patent appeal from the judgment of a Learned Single Judge in a first appeal to the High Court is not exactly equivalent to a second appeal under Section 100 of the Civil Procedure Code and, therefore, it cannot be held that a Letters Patent Appeal of this kind can only lie on a question of law and not otherwise. The matter would have been different if the Letters Patent Appeal was from a decision of a learned Single Judge in a second Appeal to the High Court. In these circumstances, it will be open to the High Court to review even findings of fact in a Letters Patent Appeal from a first appeal heard by a learned Single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two courts below. But, there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact'.
7. On consideration of the judicial practice, the provisions of law and the decision of the Supreme Court, there can be no doubt for us to hold that Section 100 of the Code of Civil Procedure cannot be strictly and legally speaking applicable to an appeal to be heard by the Letters Patent Bench. This Bench will have powers to reconsider the findings of fact. This interference with the finding of fact is not barred by law in respect of a judgment of a single Judge in the first appeal. In the case of concurrent findings of fact both in the trial court and in the first appeal, the Letters Patent Bench will be slow to interfere. In proper cases the Bench will have right to review the findings of fact for proper decision and for ends of justice. Such occasion may arise when, for example, the impugned finding of fact is based upon misreading of evidence or the pleadings or it is based on no evidence or it is based on evidence illegally admitted and in other cases where it is perverse and utterly unreasonable. The instances may not be exhaustively enumerated.
8. Mr. Dutt has contended that in view of the amendment of Section 13 (1) (f) of the West Bengal Premises Tenancy Act, 1956 made in 1969 by introduction of Section 13 (1) (ff), the suit should be dismissed or at least the appeal should be sent back on remand for amendment of the plaint in view of the decision of the Supreme Court in B. Banerjee v. Anita Pan reported in : 2SCR774 . Going through the decision of that case we have no doubt to hold that there is no ground either of the dismissal of the suit or of sending back the case on remand, as contended by Mr. Dutt for amendment of the plaint. First of all, we should note that in that case the Supreme Court found that the suit as originally brought was defective since it did not contain averments complying with the new Clauses (f) and (ff) of Sub-section (1) of Section 13. In the appeal before us, there is no question of transfer of ownership of the suit premises by the landlord within three years indicated in Sub-section (3A). Secondly the old Clause (f) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act was as follows:--
'(f) Where the premises are reasonably required by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held.'
By the Amending Act XXXIV of 1969 previous Clause (f) was practically sub-divided and substituted in its place by the two following clauses:
'(f) Subject to the provisions of Sub-section (3A) and Section 18-A, where the premises are reasonably required by the landlord for purposes of building or rebuilding or for making thereto substantial additions or alterations, and such building or rebuilding, or additions or alterations, cannot be carried out without the premises being vacated;
(ff) Subject to the provisions of Sub-section (3A) where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation'.
We are concerned with Clause (ff) of Section 13 (1). Mr. Dutt's contention is that when the present suit was filed in the year 1968, there was no existence of Clause (ff), and unless the plaintiff makes an amendment inserting in the plaint that he was not in possession of any other reasonably suitable accommodation, than the room in suit, the plaintiff cannot get any decision on that point and if the defendant is not given an opportunity to make a submission on that point or challenge the said ground, no proper decision can be arrived at. In this connexion Mr. Dutt has submitted that in the absence of the allegation in the pleading that the plaintiff was not in possession of any other reasonably suitable accommodation and in the absence of any issue on that point giving the opportunity to the defendant to adduce evidence, the defence case would be prejudiced and injustice would be done. To appreciate the contention raised, we have gone through the plaint and the written statement filed in this case. In paragraphs 5 and 6 of the plaint, the plaintiff has stated that his eldest son, Gaya Prosad, passed L.L.B. examination and applied for enrolment as an Advocate and intends to practise at Calcutta. It has been further stated that his son Gaya Prosad is in urgent need of a room for his chamber to entertain his clients on the ground floor. It has also been clearly stated that the plaintiff has no other accommodation save and except what is mentioned to accommodate Gaya Prosad for the purpose of having a chamber. In the written statement the defendant has stated that he is not aware whether Gaya Prosad passed L.L.B. examination or that he intends to practice as an Advocate. The defendant has denied that the suit room is required for the purpose of his chamber. He has asserted that the plaintiff has got not only more than sufficient accommodation, but also more than reasonable accommodation. The defendant has denied that the plaintiff got no other accommodation to use as a chamber. It is stated that the plaintiff has got sufficient accommodation to be used as a chamber. We, therefore, find that the plaintiff pleaded in the plaint that he had no other reasonable accommodation as required for the ground mentioned in Clause (ff), Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act and in fact the defendant was aware of that pleading and asserted that the plaintiff had more than sufficient accommodation at his disposal. The question of amendment of plaint does not arise in the present case.
9. With regard to the submission of Mr. Dutt that unless there was the issue in particular as to whether or not the plaintiff had in his possession any other reasonable accommodation besides the room in suit the defence case would be prejudiced. We have considered the evidence adduced by the parties in this case and also the contentions raised in the trial court as well as in the first appeal. The plaintiff has been examined in this case. During evidence he affirmed on oath that he had no other accommodation save and except the room in suit on the ground floor for converting the same into a chamber for his son Gaya Prosad who had been practising as an Advocate of this Court On the question of other accommodation, the plaintiff was cross-examined by the defendant. Several suggestions were thrown to the plaintiff from the side of the defendant to show that the plaintiff had other reasonable accommodation, but those suggestions were not accepted by any of the courts. The defendant during his evidence stated that the rooms which were in occupation of the plaintiff were sufficient for his accommodation and that the plaintiff's son was using a lobby on the 4th floor as his chamber. It appears that the trial court decreed the suit in April, 1971, long after the amendment of Section 13 of the West Bengal Premises Tenancy Act From the judgment of the learned Judge, City Civil Court, it appears that the effect of amendment of Section 13 (1) (f) by the introduction of Clause (ff) was considered and the parties were heard on that point, It further appears that the learned Judge quoted the relevant portion of the amended clause which says that the landlord is to prove that he is not in possession of any reasonably suitable accommodation. The learned Judge applied his mind and he was satisfied in spite of such amendment that the plaintiff proved that he reasonably required the suit premises in possession of the defendant on the ground floor for being used as a chamber of Gaya Prosad. In the first appeal before Mr. Justice Dutt, the defendant-appellant filed a petition to take note of the subsequent events that the plaintiff had other rooms at his disposal when some of the tenants left the premises. That application was challenged and on consideration of the affidavits submitted by the parties, the allegations made by the defendant were not accepted. It was held that the plaintiff had been able to prove that he reasonably required the suit premises and the decision of the trial Court was affirmed.
10. From the facts and circumstances there can be no doubt, therefore, that the plaintiff had all along been saying that he had no other reasonably suitable accommodation except the room in suit and that the defendant had been challenging the same. It also appears that the parties led evidence in this respect and both the parties knew about the contentions of their adversaries. There is no necessity for framing separate issue whether the plaintiff had, besides the room in suit, any other reasonably suitable accommodation for the purpose of using as the chamber of a lawyer. The general issue framed in this case relating to the reasonable requirement alleged by the plaintiff for his own use and occupation was there and both the parties fought throughout on the question whether the plaintiff had some other reasonably suitable accommodation besides the room in occupation of the defendant. The parties knew what the matter in issue was and they fought over it In these circumstances, no particular issue as suggest-ed by Mr. Dutt was necessary and in the absence of such an issue, the case of neither of the parties was prejudiced and no injustice has been done. In this connexion the decision of the Supreme Court in the case of Bhagavati v. Chandramaul appearing in : 2SCR286 may be looked into on the question of framing issues. This Bench had occassion to discuss about the non-striking of issues and the effect thereof in the case of Saraswati v. Satya Narayan Gupta reported in : AIR1977Cal99 . In that case Mr. Dutt, the learned Advocate for the appellant before us in the present appeal represented one of the parties. We may further refer to the decision of the Supreme Court in the case of Maulavi Abdur Rub Firoz Ahmed and Co. v. Jay Krishna Arora reported in : 2SCR205 , In that case an ejectment suit was filed in October, 1969 and subsequently the Second Amendment Act (West Bengal Act XXXIV of 1969) was introduced and came into force. There was also a ground for eviction of the tenant by the landlord under Clause (f) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act There it was held by the Supreme Court:
'The High Court has recorded a finding fn this case which squarely covers the requirement of Clause (ff) introduced by the Amendment Act The learned trial Judge has found, which finding was upheld by the High Court, that the respondent not only required the suit premises for his own occupation but was not in possession of any other reasonably suitable accommodation'.
Similarly on consideration of the facts and circumstances in the present case, we can say that the findings of the trial Court as well as in the appeal squarely cover the requirement of Clause (ff) introduced by Amendment Act of 1969. There has been no illegality in our view nor any prejudice to any of the parties in spite of the Amendment Act of 1969 and the contentions raised by Mr. Dutt as mentioned above cannot be accepted.
11. It has been next contended by Mr. Dutt on behalf of the appellant that the findings of the trial court in the appeal regarding the reasonable requirement of the plaintiff for his occupation of the room in suit are not acceptable, We have been taken through the evidence of the witnesses as also the judgments of the trial court as well as in the appeal. We find that the said findings are based upon proper evidence and in our view those findings are correct. We cannot say that the said findings are either perverse or unreasonable or without any basis. In this connexion our attention has been drawn to two applications filed by the appellant -- one for additional evidence and the other for consideration of subsequent events as alleged in the petition. The alleged subsequent events, on which the respondent wants to rely, have been denied by the appellant, The said facts are disputed. Moreover, in the first appeal some facts were considered on an application by the defendant-appellant. But, no relief was granted. The contention of the defendant-appellant was rejected. In view of the fact that the events relied upon by the tenant are unaccepted and disputed by the plaintiff, they cannot be relied upon by this Court in the Letters Patent Appeal. Moreover, on a consideration of the allegations made regarding subsequent events we find that the rebutting statements of the plaintiff-respondent before us are acceptable. The fact of an ex parte partition decree is, however, admitted. The materials on record are sufficient to decide the suit as has been done by the trial court and duly confirmed by the learned Judge in the first appeal. We accordingly dispose of the two applications of the appellant as mentioned above. We also find no reason to interfere with the concurrent findings arrived at in the trial court and in the first appeal. It has been clearly proved that the plaintiff requires the room in suit for the use as chamber by his son, a practising Advocate of this Court. It has also been proved that there is no other reasonably suitable accommodation in possession of the plaintiff.
12. It has been further contended by Mr. Dutt that the notice of ejectment relied upon by the plaintiff is illegal and ineffective. The fact is that in 1965 the plaintiff served a combined notice upon the defendant under Section 106 of the Transfer of Property Act and under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 determining the monthly tenancy on the expiry of the last day of March, 1965. That notice was not acted upon. Subsequently, the plaintiff served another such combined notice dated 19-6-1967 determining the tenancy on the expiry of the last day of July, 1967, The argument of Mr. Dutt is that in view of the decision of the Supreme Court in Calcutta Credit Corporation Limited v. Happy Homes Private Limited reported in : 2SCR20 , the second notice is bad and did not determine the tenancy because no consent of the defendant had been obtained for the second notice. According to him, the first notice subsists. The principle laid down by the Supreme Court in the case relied upon is not applicable to the case before us. In that case a building was let out to the tenant for a period of 12 years. After the expiry of the period, the tenant continued to hold over the premises. On 12-8-1953 the tenant M/s. Allenbery and Co. Ltd. served a notice in writing upon the landlord intimating their intention to vacate the premises on 31-8-53 at 3-30 p. m. and requested the landlord to arrange to take delivery of possession. Later on by a letter dated 26-8-1953 the tenant-Company informed the landlord that they did not intend to vacate the premises as already notified. The landlord informed the tenant that the earlier notice dated 12-8-1953 could not be withdrawn except by mutual consent In that case the Company gave notice about their quitting the tenanted permises thereby determining the tenancy and the said notice was accepted by the landlord. When the determination of tenancy was accepted by both the parties, the tenant cannot whimsically continue the tenancy again after such determination without the approval or consent of the landlord. In that case it was held that the notice determining the tenancy given by the tenant under the circumstances mentioned could not be waived by the tenant uni-laterally without tie consent of the landlord. In the present case, the evidence is that after the ejectment notice given in 1965, the defendant did not accept the determination of that tenancy, but in fact, paid rents in favour of the plaintiff asserting himself as a tenant. The plaintiff also did not act upon that notice. Subsequently, however, when the plaintiff felt that he required the suit premises for his son living with him in his family, he served the second notice in 1967. The first notice was, therefore, not accepted by the defendant nor followed up by the plaintiff at that time. In the circumstances the question of consent of the defendant for giving the second notice does not arise,
13. Moreover, a lease of immovable property as mentioned in Section 111 of the Transfer of Property Act determines on the expiration of a notice to determine the lease or to quit or of intention to quit the property leased duly given by one party to the other. In the present case the second notice under Section 106 of the Transfer of Property Act was served on the defendant as already mentioned. Section 113 of the said Act says that a notice under Section 111, Clause (h), as in the present case, is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to keep the lease as subsisting. There are two illustrations under this section. I have already mentioned about the conduct of the parties as indicated in illustration (a). After the expiration of the notice period as mentioned in the notice of the year 1965, the defendant asserted himself as a tenant under the plaintiff and the plaintiff also treated the defendant as such. Illustration (b), in addition, is applicable to the present case. Illustration (b) is as follows:--
'A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived'.
In the present case also after the expiration of the notice of 1965, the defendant remained in possession of the suit room. The plaintiff again gave a notice in 1967. The first notice was, therefore, waived. There is no illegality in the second notice given by the plaintiff and served upon the defendant in 1967.
14. Lastly, it has been contended by Mr. Dutt that the suit ought to have failed for non-joinder of necessary parties, namely, the co-sharers-owners of the building in which the defendant is a tenant in respect of one room. To substantiate this argument copies of the decree and the judgment passed by the Subordinate Judge at Keonjhar in Orissa in Title Suit No. 25/66-1 have been filed. This is a partition suit filed by Rama-nandan Trivedi and Abhinava Kumar Trivedi against the present plaintiff Jadunandan Trivedi and some others in respect of several properties including the premises No. 25-A, Chittaranjan Avenue, Calcutta, The room-in-suit is a part of this building and the plaintiff claims this property as exclusively his. There is no dispute that a decree has been passed ex parte against the plaintiff. Attempt was made to set aside that ex parte decree, but having failed in Orissa Courts, the plaintiff has filed a Title Suit in the City Civil Court, Calcutta for a declaration that the suit premises belongs to him exclusively and to no other person. This suit has been started to nullify the effect of the partition decree. According to the partition decree passed in Orissa Court, the plaintiff appears to be one of the co-owners of the property. The admitted fact again is that the defendant took the tenancy from the plaintiff and even in the written statement the defendant has stated 'that the defendant submits that he is still a tenant under the plaintiff in respect of a room (back portion) on the ground floor on 25-A. Chittaranjan Avenue, Calcutta-13'. Nowhere has it been stated in the written statement that the defendant had any other co-land-lord. In fact the defendant has been always accepting the plaintiff as his landlord and he deposited rents in favour of the plaintiff alone as his landlord. Mr. Dutt's point is that the sole landlord being a co-owner cannot evict the tenant under him unless all the co-owners of the suit property join as plaintiffs to evict the defendant. At the same time it has been argued that a co-owner cannot claim that he requires the suit room for his occupation because he is not the sole owner of the property in question, For this purpose Mr. Dutt has relied upon a Single Bench decision of this Court in Sriram Pasrisha v. Jagannath reported in : (1973)77CALLT613(HC) . According to that decision 'it is not possible to hold that the part owner of the property in the circumstances is the owner as contemplated in Section 13 (1) (ff)'. This very decision relied upon by Mr. Dutt has been set aside by a judgment in a Letters Patent Appeal decided by a Division Bench of this Court appearing in (1975) 1 Cal I.J 413. There, according to Division Bench, the term 'owner' in its ordinary sense as well as in its legal concept means and includes a co-sharer owner and in this connexion there has been a long discussion on the subject. We agree with the decision of the Division Bench and hold that a co-owner or a co-sharer owner of the property comes under the purview of Clause (ff) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act. In the present case, the plaintiff let out the shop room to the defendant. There is no dispute and also it is proved that the plaintiff is the sole landlord of the defendant. According to the Sub-section (1) of Section 13 of the Act, the landlord can obtain a decree for recovery of possession against his tenant on several grounds mentioned in different clauses. According to Clause (ff) the landlord is entitled to evict the tenant when he reasonably requires the suit premises for his own occupation if he is the owner and further if the landlord is not in possession of any reasonably suitable accommodation. In the present case, even if it is assumed that the plaintiff is a co-sharer owner, it cannot be stated that for his own reasonable requirement for occupation he cannot get a decree for eviction of the tenant unless he is the [sole owner. In Clause (ff) the word 'owner' is not qualified or limited. The word does not, therefore, exclude a co-owner. Moreover, according to law, the landlord is entitled to bring an action for eviction of the tenant. If there be other co-owners of a building and if the plaintiff be one of the co-owners letting out the premises to a tenant, the other co-owners have no locus standi to bring any suit for eviction against a person who is not a tenant under them. Those co-owners are neither proper nor necessary parties. The last contention of Mr. Dutt also fails.
15. In the result, the appeal is dismissed on contest with costs and the prayers of the appellant in the petitions for additional evidence and for noting the subsequent events as alleged have been dealt with in the judgment and are thus disposed of.
16. The records of the trial court may be sent down as early as possible.
A.K. Janah, J.
1. I agree.