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Jogesh Chandra Sen Vs. Sm. Kiron Bala Saha - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 700 of 1969
Judge
Reported inAIR1977Cal167,81CWN505
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;West Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantJogesh Chandra Sen
RespondentSm. Kiron Bala Saha
Appellant AdvocateR.N. Mitra, ;S.P. Sen and ;P.N. Bhattacharya, Advs.
Respondent AdvocateC.N. Mukherjee and ;Gopalchandra Mukherjee, Advs.
DispositionAppeal dismissed
Cases ReferredKrishna Das Nandi v. Bidhan Chandra Roy
Excerpt:
- .....city civil court, calcutta dated january 27, 1969 in a suit for recovery of possession of the suit premises. the plaintiff is the owner of premises no. 9-b, mathura sen garden lane p.s. jorabagan, calcutta which she purchased on october 12, 1966. the said premises hadbeen in occupation of the defendant as a monthly tenant at a rental of rs. 25/- payable according to the bengali calendar month. the plaintiff's case was that she with her family had been residing in a small house at 87-a, b.k. pal avenue, calcutta as a tenant with three rooms in her possession. the said premises were insufficient for the accommodation of herself and her family consisting of her husband, eldest son, his wife, second son, a daughter, husband's sister and two employees of the business of the plaintiff's.....
Judgment:

Salil Kumar Datta, J.

1. This appeal is from the judgment and decree of the learned Judge, 8th Bench, City Civil Court, Calcutta dated January 27, 1969 in a suit for recovery of possession of the suit premises. The plaintiff is the owner of premises No. 9-B, Mathura Sen Garden Lane P.S. Jorabagan, Calcutta which she purchased on October 12, 1966. The said premises hadbeen in occupation of the defendant as a monthly tenant at a rental of Rs. 25/- payable according to the Bengali Calendar month. The plaintiff's case was that she with her family had been residing in a small house at 87-A, B.K. Pal Avenue, Calcutta as a tenant with three rooms in her possession. The said premises were insufficient for the accommodation of herself and her family consisting of her husband, eldest son, his wife, second son, a daughter, husband's sister and two employees of the business of the plaintiff's husband and her son. The plaintiff, it was stated required the said premises for her use and occupation and she intended to raise a second storey and to completely renovate the existing structure and she had means to effect such renovation and construction. It was further stated that the plaintiff and her family were living in extreme inconvenience and discomfort on account of the insufficiency of accommodation in the said premises. Further the landlords were asking the plaintiff to vacate the premises. The tenancy of the defendant was determined by a notice to quit expiring with the month of Falgoon, 1373 B. S. The said notice was duly served but as the defendant did not vacate the premises the suit was instituted on May 17, 1967 for recovery of possession thereof by eviction of the defendant therefrom on the ground of her reasonable requirement.

2. The suit was contested by the defendant who filed a written statement denying the material allegations in the plaint. It was further stated that the accommodation the plaintiff had at 87 B.K. Pal Avenue was sufficient and the accommodation in the suit premises was insufficient and there was no scope for erection of second storey on the premises. Further the tenancy was not duly determined in accordance with law.

3. It appears that the defendant did not deposit the admitted arrears of rent within the time allowed under Section 17 (1) of the West Bengal Premises Tenancy Act, 1956 and as a result the plaintiff's application under Section 17 (3) of the Act was allowed and the defence of the defendant against eviction was struck off. The suit was heard thereafter ex parte and by the judgment under appeal the suit was decreed on the finding that the plaintiff required the suit premises for her own use and occupation as also of her family. It was further held that the notice was valid in law and was duly served. The present appeal is against this decision.

4. It may be mentioned here that after the decree was obtained there was an amendment to the West Bengal Premises Tenancy Act. Section 13 (1) (f) was substituted by Clauses (f) and (ff) by West Bengal Premises Tenancy (Second Amendment) Act, 1969. By the said amendment Act, Sub-section (3-A) to Section 13 was inserted which provided that no suit for recovery of possession would be maintainable by the landlord on the ground of his own requirement unless three years have passed after his acquisition of the property concerned. By Section 13 of the said Act the provisions of Sub-section (3A) of Section 13 of the parent Act were made applicable to pending cases. The Supreme Court in B. Banerjee v. Amita Pan, : [1975]2SCR774 upheld the vires of subsection 3-A and further held that the provisions thereof applied to pending proceedings. Opportunity to the plaintiff was however afforded to amend his plaint in terms of the provisions of Clause (f) or Clause (ff) of Section 13 (1) and for further trial on evidence on such amended pleadings. In view of the aforesaid provisions, the plaintiff filed an application for amendment of her plaint incorporating fresh averments in consonance with the said provisions of the Act and this amendment application was allowed by this Court by order dated 2nd May, 1975. By this order also the Court confirmed the order of the trial court striking out defence of the defendant against eviction in view of his failure to comply with the first part of Section 17 (1) and accordingly the defendant was not allowed to file any additional written statement to the amended plaint. This Court by the said order framed two additional issues which are as follows:--

(1) Does the plaintiff-respondent reasonably require the suit premises for his own use and occupation?

(2) Is the plaintiff already in occupation of any reasonably suitable accommodation? The case was sent back to the trial court for recording evidence if adduced by the plaintiff and thereafter to transmit back to this Court its finding thereon together with the evidence recorded in that Court. In pursuance of this direction the plaintiff adduced evidence in support of her amended pleadings and the court found that in regard to issue No. 2 the plaintiff was not in occupation of a reasonably suitable accommodation. In regard to the first issue, the court found that the plaintiff reasonably required the premises for use and occupation of herself as also of her family and the inconveniences to which the plaintiff and her family were subjected to would be remedied if she could recover possession of the suit premises. Both the issues were decided in favour of the plaintiff. These findings are now before us for our consideration.

5. Mr. Mitra appearing for the appellant submitted that by the amendment of the plaint, the plaintiff improved her case in material particulars in her effort to bring it in conformity with Clause (ff) of Section 13 (1). The case of plaintiff as being in occupation of an accommodation not fit for human habitation was made by the amendment of the plaint of which there is no whisper in the original plaint. It may be that the plaintiff by the amendment set up a case which was not made originally in that form in the plaint as it was filed but once an amendment has been allowed by this Court, it is no longer possible for us to take any exception to such amendment. The case will accordingly have to proceed on the basis of the amended plaint.

6. Now by the amendment, it was stated by the plaintiff in support of her case that she was not in possession of a reasonably suitable accommodation, that the wooden stair-case leading from the ground floor to the tenancy of the plaintiff in the first floor of of 87-A, B.K. Pal Avenue was seriously damaged and out of repair and that the plaintiff and the members of her family were using the same with risk as it was in a dilapidated condition. Further the roof could not be reached or used at all and the roof of the tenancy of first floor had become leaky and during the rains the plaintiff and her family members had to live with great, difficulty and inconvenience as the accommodation became 'practically' unfit for human habitation.

7. A commissioner was appointed to survey the respective accommodation of the parties and it was found by the Commissioner that the plaintiff was in effect in occupation of four rooms. As the fourth room was a very small room measuring about 7' X 3' 6' it could not obviously be used for habitation. The Commissioner further found that the wooden stair-case was in grave dilapidated condition and the plaintiff and the members of her family suffered great difficulty and risk in using the same. The Commissioner further found that the roof was leaky and there was rain water in at least one room following rains which took place shortly before his inspection of the premises.

8. The son of the plaintiff gave evidence in the trial court after the records were sent back to that court by this Court as aforesaid. It was stated by him that the accommodation was wholly insufficient for his family members. It was stated that the family consisted of, apart from his parents, wife and brother, her married sister who was deserted by her husband. It may be mentioned here that by the amendment the plaintiffstated that her sister had all along been living with the plaintiff as her husband has deserted her. In view of the size of the plaintiffs family there can be no dispute that the accommodation of three rooms was wholly insufficient for their purpose. Out of three rooms one room was necessary for the plaintiff's husband's business and only two rooms were thus left for their accommodation. It was obvious that the plaintiff and her husband require one room, her married son with his wife require another and her daughter as also the sister's husband require another room while the son also is to be accommodated. We are, therefore, in agreement with the finding of the learned Judge that the plaintiff reasonably required the premises for occupation of herself and her family.

9. Apart from the question of requirements it will appear on evidence that the premises where the plaintiff and her family had been residing so long were unhabitable for the risk involved as the access to such premises was highly inconvenient and risky while the roof was leaky causing additional inconvenience. Mr. Mitra has submitted that it was open to the plaintiff to take steps for effecting proper repairs to the premises and her inaction cannot be a ground for the defendant's eviction. We are unable to accept this contention as possession of a reasonable accommodation of the landlord must be with reference to the state in which the accommodation of such landlord is at the material time. Simply because that some remedies were available to the plaintiff for remedying the inconveniences it cannot be said that the plaintiff ought to have availed of those remedies before she can approach the Court for appropriate relief. We therefore, find that the plaintiff is not in possession of reasonably suitable accommodation at the tenanted premises where she has been living at the material time.

10. Mr. Mitra has next drawn our attention to the fact that the accommodation which is sought to be recovered is less in area than the plaintiff's tenanted premises. As the learned Judge has found, the defendant is in occupation of two rooms and two verandahs. The witness for the plaintiff has stated in evidence that after they obtain possession of the accommodation, the plaintiff will renovate the ground floor and construct a new storey over it for her accommodation as also of her members of the family. It was further stated that the plan had been submitted for sanction by the Corporation. It was however not sanctioned presumably on the ground, as pointed out by Mr. Mitra, thatinspection of the premises was not given to the Corporation authorities. Mr. Mitra submitted that in considerating a case under Clause (ff) of Section 13 (1) the court has to take into consideration only the existing accommodation which would be available if a decree was passed and not to additional accommodation available after construction as it is covered by Clause (f) Mr. Mukherjee appearing for the respondent on the other hand drew our attention to the decision in Krishna Das Nandi v. Bidhan Chandra Roy : AIR1959Cal181 in which the Court observed that it could not be believed that the Legislature intended to leave the landlord without a remedy and without a residence for himself and his family even though he had a premises and a reasonable requirement of it for his own occupation or residence and also the means of making it fit for his habitation. Under Clause (f) it is provided that when premises are required by the landlord for building or rebuilding then such requirement would be subject to the provisions of Sections 3-A and 18-A. In such a case under the Clause (f) as amended the landlord does not require the premises for his own use and occupation but for the purpose of building and rebuilding or making thereto substantial alterations therein. Clause (ff) provides for reasonable requirement of the landlord and there is no prohibition in the said sub-section against any further addition or alteration or renovation to the premises after the landlord obtains possession of such premises. There is thus no bar in law for the plaintiff making a case of own use and occupation of the premises with the further case that he on obtaining such possession will make further additions and alterations or even renovation to make it suitable for his own use and occupation. Accordingly even though the accommodation in the suit premises is less than what the plaintiff had been enjoying in her tenanted premises we do not think that such fact should be an impediment on the way of plaintiff's getting a decree for her own use and occupation when she has established the requisite conditions for such relief. It may be further noted as observed by the trial Judge that the covered two verandahs on the two sides would also be available in the suit premises in which the plaintiff will accommodate herself and her family.

11. For all these reasons we accept the findings of the trial court on the both issues and hold that the plaintiff is not in occupation of any reasonably suitable accommodation, and that she requires the suit premises for her accommodation and also of her family. The appeal in the circumstances,fails and is dismissed. There will be no order for costs in the circumstances.

12. Mr. Mitra prays for one year's time to vacate the premises as, it is stated, he has been residing there for over 20 years. Mr. Mukherjee has submitted that if any time is given it should be before the rainy season. We think that in the circumstances of the case the defendant should be granted time till Sravan 1384 B. S. to vacate the suit premises. Accordingly the decree hereby confirmed by us will not be executable till the expiry of Sravan 1384 B. S. on the terms and conditions set out below. It is stated that the defendant is not in arrears of rent or damages. The defendant will go on paying to the landlord or deposit in the trial court to the credit of the plaintiff damages at the rate of rent month by month according to Bengali Calendar month by the 15th of the succeeding month. The first of such deposit or payment will be made of the month of Pous 1383 B. S. by the 15th of Magh 1383 B. S. Damages for the last month of Sravan 1384 B. S. shall be paid or deposited as aforesaid by the end of Sravan 1384 B. S. In default of -any of the deposits aforesaid, the decree will be executable at once and in any event the decree will be executable on the expiry of Sravan 1384 B. S. The plaintiff however will be at liberty to receive from the defendant all damages or withdraw from the court all the rent or damages deposited by the defendant in respect of the suit premises without prejudice to her rights under the decree.

G.N. Ray, J.

13. I agree.


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