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Banka Behari Dutt Vs. Gour Mohan Dutta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberS.A. No. 221 of 1980
Judge
Reported inAIR1981Cal185,85CWN548
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1) and 13(4); ;Code of Civil Procedure (CPC) , 1908 - Order 14, Rule 1
AppellantBanka Behari Dutt
RespondentGour Mohan Dutta
Appellant AdvocateS.C. Das Gupta and ;Tapan Sen Gupta, Advs.
Respondent AdvocateChandranath Mukherjee and ;G.S. Chatterjee, Advs.
DispositionAppeal allowed
Cases ReferredSwarnalata Bagchi v. Kanta Bala Dass
Excerpt:
- .....thus, according to mr. das gupta there was no legal evidence for proving his requirement for the suit premises. he makes a reference to the decision in the case of nanalal gover-dhandas & co. v. smt. samratbai lila-chand shah, reported in : air1981bom1 . 5. mr. chandranath mukherji, the learned advocate for the respondent argues that the decision of the bombay high court has least application to the facts and circumstances of the present suit which is governed by the provisions of west bengal premises tenancy act, 1956. the provisions of this act are quite distinct from the provision of section 13 of the bombay rent act. under the bombay act a landlord to recover possession on the ground of landlord's requirement must prove that the premises are reasonably and bona fide required by the.....
Judgment:

Sudhindra Mohan Guha, J.

1. The tenant-defendant has come up in appeal against the judgment and decree of Sri M. Roy, Subordinate Judge, Purulia, affirming the judgment and decree of ejectment passed by the Munsif, Purulia.

2. The respondent commenced a suit for ejectment against the appellant on determination of tenancy, on the grounds of default in payment of rent and reasonable requirement for the purpose of starting business in rice by his two unemployed sons. The appellant held the tenancy consisting of two rooms at a monthly rental of Rs. 45/- according to Bengali calendar month.

3. The learned Munsif found that the tenancy had been determined by a valid notice to quit and the plaintiff reasonably required the premises in suit for his own use. Such findings were affirmed in appeal by the learned Subordinate Judge.

4. Mr. S. C. Das Gupta, the learned Advocate for the appellant, contends that the Respondent's case as to starting of business by his unemployed sons is not consistent. The divergent cases were madeout in the notice of ejectment, plaint and evidence adduced during the trial. The intention of the landlord as to which of the son or sons intended to start business in rice was not at all clear. In this case the plaintiff-landlord withheld himself from the witness box, and examined one of his sons, (P. W. 1) whose evidence could not be the substitute for the legal evidence of the landlord himself. Thus, according to Mr. Das Gupta there was no legal evidence for proving his requirement for the suit premises. He makes a reference to the decision in the case of Nanalal Gover-dhandas & Co. v. Smt. Samratbai Lila-chand Shah, reported in : AIR1981Bom1 .

5. Mr. Chandranath Mukherji, the learned Advocate for the Respondent argues that the decision of the Bombay High Court has least application to the facts and circumstances of the present suit which is governed by the provisions of West Bengal Premises Tenancy Act, 1956. The provisions of this Act are quite distinct from the provision of Section 13 of the Bombay Rent Act. Under the Bombay Act a landlord to recover possession on the ground of landlord's requirement must prove that the premises are reasonably and bona fide required by the landlord, whereas in West Bengal Premises Tenancy Act of 1956 the word 'bona fide' has been omitted. It is to be seen whether the landlord's requirement is reasonable, Section 13(1)(g) of the Bombay Act lays down that the premises must be reasonably and bona fide required by the landlord. Mr. Mookherjee submits that the bona fide requirement is a state of mind of the landlord which may be required to be proved by the landlord himself. Reasonable requirement, as in West Bengal Act may be proved by the trustworthy evidence, and as such non-examination of the landlord would not be fatal.

6. According to the Concise Oxford Dictionary (5th Edition) the meaning of 'bona fide' is 'genuinely' and bona fides -- 'Honest intention' -- The meaning of reasonable is 'Endowed with reason'.

7. According to Stroud's Judicial Dictionary, 4th Edition -- 'bona fide is the equivalent of the phrase 'honestly'. 'The correct province of this phrase is therefore to qualify things or actions that have relation to the mind or motive of the individual. A fact completely within physical apprehension can neither be bona or mala fide -- a mentai fact may be either' and 'reasonableness' belongs to the know-ledge of the law, and therefore to be decided by Justices'.

8. Thus in order to prove reasonableness the landlord is to show genuine present need. The words 'reasonably required' connotes something more than mere desire although at the same time something much less than absolute necessity will do. 'Reasonableness' of requirement must be shown by evidence. The mind or intention of the landlord has no part to play therein. As the bona fides need not be proved, non-examination of the landlord would not be fatal to the present suit. Under Section 13(1)(ff) of the West Bengal Premises Tenancy Act the land-lord to recover possession of the premises need only to prove that the premises are 'reasonably' required and not 'bona fide'. The word 'bona fide' which was in the Act of 1950, has been omitted in the present Act. The evidence of the landlord himself may be insisted in the case the landlord requires the premises both reasonably and bona fide. But the 'reasonableness' of requirement may be proved by other legal evidence than that which can be adduced by the landlord himself. Thus, Mr. Mookherjee seems to be perfectly justified in contending that non-examination of the landlord in this case could not be fatal.

9. Next, it is contended by Mr. Das Gupta that the trial was vitiated in the absence of any issue as to whether the landlord was in possession of any reasonably suitable accommodation and thus the decree in question is not sustainable in law. The landlord even did not plead in the plaint that he was not in possession of such accommodation. In support of such contention reliance is placed on the decisions in the case of Indian Scientific Accessories Co. Pvt. Ltd. v. Anil Dey, reported in (1979) 83 Cal WN 281 and in the case of Jatindranath Das v. Jaduram, (1975) 2 Cal LJ 209.

10. In the case of Pravash Chandra v. Chandra Mohan, reported in : AIR1978Cal224 the Court observed as follows:--'Although the parties may have proceeded on that basis, it cannot be said that the Court can pass a decree without recording a finding as required under the latter part of Clause (ff) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act that the plaintiff is not in possession of any reasonably suitable accommodation 'elsewhere'. In fact, in the present suit no issue was framed on thispoint and the learned Judge has not also recorded any finding on this point. The suit must therefore go back to the trial Court for a finding on this point.' Adopting the aforesaid observations as his arguments Mr. Das Gupta proceeds to contend that the onus lay on the Respondent to prove the alleged requirement and the appellant was under no obligation to disprove the landlord's case.

11. Mr. Mukherji on the other handcontends that in paragraph 6 of the plaintplaintiff made it clear that he had noother alternative accommodation. Controverting the point defendant in paragraph 5 of the written statement made aspecific case that such alternative accommodation was already available at Sandesh Gully. Evidence was gone into byboth the parties on the point. Both theCourts on examining the evidence on record rejected the defence plea as to thealternative accommodation. Thus in theabove facts and circumstances in the opinion of Mr. Mukherji it would be futileto contend that the trial was vitiated fornon-framing of any issue. Because theparties proceeded to trial with full knowledge of the rival contentions and ledevidence in support of its respective caseand the Court considered such evidencein coming to its decision. Reliance isplaced on the decision in the case ofAbdul Razak v. Abdul Rehman, (1979)83 Cal WN 821.

12. The Supreme Court had occasion to lay down the principle in the case of Kameshwaramma v. Subba Rao, : [1963]2SCR208 ; in the following lines, 'Since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that absence of an issue was fatal to the case, or that there was a mistrial which vitiates the proceedings.'

13. The same view was also taken in Kunju Kesaran v. M. M. Philip, : [1964]3SCR634 .

14. In Abdul Razak v. Abdul Rahaman ((1979) 83 Cal WN 821) (supra) Mr. Justice S. K. Datta on a full discussion of the law on the point observed that where though no issue was framed, the parties went to trial on full comprehension of the issue involved, viz., whether the plaintiff was in possession of any other reasonably suitable accommodation adduced evidence in support of their respective case and inrefutation of the case of the other side and the lower Courts arrived at their conclusion on consideration of the pleadings and the evidence there was no scope for holding that the decree under appeal was not sustainable in law and that a remand for adjudication of a relevant issue omitted to be framed by the trial Court was necessary.

15. I am fully in agreement with the views expressed by his Lordship and have no hesitation to reject the contention of Mr. Das Gupta on the point.

16. Lastly, it is argued by Mr. Das Gupta that the learned Courts below did not at all consider whether the requirement of the landlord could be met by a part of the disputed premises or partial eviction. According to him it was incumbent on the Court to arrive at such finding. Reference is made to the Bench decision of this Court in the case of Swarnalata Bagchi v. Kanta Bala Dass, (1966) 70 Cal WN 615. Next Mr. Das Gupta refers to the observation of R. N. Dutt, J. in the case of Haripada Samanta Pramathanath Samanta, a firm v. Bansidhar Premsukh Das, : AIR1967Cal255 . While considering the provision of West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950). His Lordship stated that in an ejectment suit on the ground that the premises were required by the owner for own use and occupation, there is a statutory duty on the trial Court to consider whether part eviction will substantially meet the owner's reasonable requirement, even though the tenant does not take such plea. When the Court thinks that part eviction will meet the owner's reasonable requirement, only then the consent of the tenant is to be sought for.

17. The above decision was given in a case governed by the Rent Control Act 1950. The instant case is however under the provisions of the Act of 1956. The corresponding provisions in both the Acts are almost similarly worded. Under Sub-section (4) of Section 13 of the Act of 1956 if the Court forms an opinion that the requirement of the landlord may be substantially satisfied by partial eviction of the tenant from a portion of the premises in question and the tenant also agrees te such occupation, it has to pass a decree accordingly. The tenant is to express such agreement, when the Court forms such opinion. A Division Bench in the case of Krishna Das Nandy v. Bidhan Chandra Roy, (1959) 63 Cal WN 29 observed that a duty had been imposed uponthe Court by the statute and the failure of the tenant to take any plea under the Sub-section (4) of Section 13 did not relieve the Court of such statutory duty. In this view of the matter the argument of Mr. Murkherjee that the tenant failed to take such plea in written statement does not hold good. Of course necessary evidence and materials must be available to the Court for forming such opinion. If the Court can form such opinion, then and then only the option of the tenant whether he agrees to continue in spite of partial eviction will arise.

18. The Division Bench decision reported in (1959) 63 Cal WN 29 was followed in Om Prakash Asija v. Monohar Lal, reported in (1961) 65 Cal WN 1201.

19. Reiterating his contentions that the plea of the tenant that reasonable requirement may be satisfied by evicting from a part only of the premises, must be preceded by such defence in the written statement, Mr. Mukherji refers to the decision in the case of Gobinda Bhusan Roy v. Jnan Chandra Mukherji, 1958 Cal LJ 265. But in this case the defendant did not raise the plea that reasonable requirement of the landlord may be satisfied by evicting from a part only of the premises, in the written statement or in the Court of Appeal below, the High Court declined to allow him to raise the question in second appeal.

20. Mr. Mukherji also stresses on the fact that there must be materials on record before the Court to indicate that a part of the premises would satisfy the landlord's requirement. The absence of any such material would rule out any consideration of the question of partial eviction. Mr. Mukherji also relies on the decision in the case of Swarnalata Bagchi v. Kanta Bala Dass ( (1966) 70 Cal WN 615) (supra). In this case P. N. Mookherjee, J. speaking for the Division Bench observed that, only when the record indicated and the Court was satisfied that the plaintiff's requirement would be met by a part of the disputed premises, the question of partial eviction became germane for consideration. His Lordship in the case reported in (1959) 63 Cal WN 29 also observed that in the case of partial eviction a duty had been imposed upon the Court by the statute and the failure on the part of the tenant to take any plea under Section 13(4) did not relieve the Court of such statutory duty. Having regard to the provision to Section 13(4) and also to thedecision in (1959) 63 Cal WN 29 I find that the Court has also got the statutory duty to examine the case of partial eviction irrespective of specific plea in the written statement. As stated earlier there must be evidence or materials on record to that effect. In this case it appears that neither the Court nor the parties approached the issue from that angle. Thus the evidence on the point is most meagre. The only evidence available is that the tenancy consisted of two rooms, the measurement of which is not known. There was no local inspection. In the circumstances I propose to send the suit back to the trial Court on remand for limited purpose namely, to find whether the requirement of the plaintiff-landlord could be met by evicting the tenant defendant from one of the rooms. All other findings of the Courts below are affirmed.

21. In the result, the appeal is accepted. The decree for ejectment is set aside. The suit is sent back to the trial Court on remand for limited purpose indicated above. Parties would be at liberty to adduce fresh evidence concerning only partial eviction. And the trial Court would dispose of the suit on such finding.

22. Costs would abide by the final result.


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