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Mahananda Das Karmakar Vs. Biswanath Dey and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 382 of 1972
Judge
Reported inAIR1976Cal185
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13, 13(1), 13(6) and 18A(1); ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 27; ;Constitution of India - Articles 14 and 19
AppellantMahananda Das Karmakar
RespondentBiswanath Dey and ors.
Appellant AdvocateS.B. Bhunia and ;Prabir K. Samanta, Advs.
Respondent AdvocateS.C. Mitter and ;B.B. Koley, Advs.
DispositionAppeal dismissed
Cases ReferredSuraya Properties Private Ltd. v. Bimalendu Nath Sarkar
Excerpt:
- .....j. 1. this appeal is by the defendant against whom a decree was passed for eviction from the suit premises in an action brought by the plaintiffs, his landlords. in the first appeal taken by the defendant, he was not successful and the first appellate court affirmed the decision of the trial court. in short, the plaintiffs' case before the learned munsif was that they were running a shop known as 'ghatal cloth stores' in the premises let out by the trust estate of srinibash sureka. their landlord served a notice upon them for eviction. the plaintiffs who are the owners of the suit premises wanted to raise two-storied building in place of the existing two rooms which they own so that they could start the cloth business there and in that case the business in the premises of the trust.....
Judgment:

R. Bhattacharya, J.

1. This appeal is by the defendant against whom a decree was passed for eviction from the suit premises in an action brought by the plaintiffs, his landlords. In the first appeal taken by the defendant, he was not successful and the first appellate court affirmed the decision of the trial court. In short, the plaintiffs' case before the learned Munsif was that they were running a shop known as 'Ghatal Cloth Stores' in the premises let out by the trust estate of Srinibash Sureka. Their landlord served a notice upon them for eviction. The plaintiffs who are the owners of the suit premises wanted to raise two-storied building in place of the existing two rooms which they own so that they could start the cloth business there and in that case the business in the premises of the trust estate would be shifted. The plaintiffs got a plan sanctioned by the municipality and they have also obtained permits for cement for such construction. The definite case of the plaintiffs is that they want to make alterations and also build the second storey on the existing premises for their own occupation and for carrying on business there for their own interest. The further ground of eviction was that the defendant was a defaulter. The contesting defendant is the defendant No. 1 and there was another defendant described as pro forma. The contesting defendant is, however, admitted to be the tenant under the plaintiffs. The defence case was that the defendant was not a defaulter as alleged and that there was no requirement by the plaintiffs either for the suit premises or for any construction thereon. There was of course a challenge as to the validity of the notice to quit. The learned Munsif after hearing the parties on trial held that the case as to default in payment of rent was not proved but he was satisfied that the plaintiffs reasonably required the suit premises for building and construction of the first storey and also for their own occupation in connection with their cloth business. An appeal was taken against that decsion before the District Judge and the court which heard the appeal found no merit in the appeal and concurred with the learned Munsif as to his findings regarding the requirement by the plaintiffs. It was also held that the notice was legal and sufficient. Against that decision an appeal was taken to this Court. The learned Advocate appearing on behalf of the defendant-appellant submitted that due to the West Bengal Act 34 of 1969 there had been amendments in respect of Section 13 (1) (f) and instead of that Clause (f), Clauses (f) and (ff) were brought into existence. According to the amendment it was necessary for the court to determine whether the additions, alterations or building could be carried without the premises being vacant and further that whether the landlords had in their possession any reasonable suitable accommodation. The prayer was that the case might be sent back on remand for taking additional evidence on those points for coming to a correct and relevant decision. Accepting that prayer this Court set aside the judgment of the first appellate court and sent back the case to the first appellate court for determination as to the plaintiffs' requiring the suit premises reasonably for their own occupation and also for building, additions or alterations of the suit premises by taking additional evidence as to whether such building or alterations could be carried out without the premises being vacated and whether the plaintiffs had any reasonable suitable accommodation elsewhere. After the said remand, the first appellate court took additional evidence of the parties and after hearing the parties and on consideration of the evidence and circumstances it was held that the plaintiffs did require reasonably the room in suit for alteration and for construction of upper storey and also for the reasonable requirement of the plaintiffs. It was held that there was no other reasonable suitable accommodation at the disposal of the plaintiffs and that the constructions sought to be made by the plaintiffs could not be carried out without the premises being vacated. Against that decision the instant appeal has been preferred by the defendant No. 1.

2. Mr. Bhunia, the learned Advocate for the appellant, has taken several points in support of the appeal and Mr. Mitter on behalf of the respondents has opposed to justify the decisions of the courts below. The first point taken by Mr. Bhunia is that the appeal is not maintainable because after the amendment by the Act 34 of 1969 a fresh notice ought to have been given stating that no construction could be carried out without the premises being vacated and that the landlords, that is to say, the plaintiffs had no reasonable suitable accommodation but to fall upon the suit premises for the business in question. I am afraid this contention is unacceptable. The notice to quit and the notice for the threat of suit is already there in the original notice served upon the defendant. The amendment only required the courts to consider the question whether for alterations and building purposes the tenant should vacate the premises and whether for the purpose of determination of the reasonable requirement of the plaintiffs, did satisfy the court that they had no other suitable accommodation. There can be no question of issuing fresh notice. It has been submitted by Mr. Bhunia in this connection that the plaintiffs ought to have stated in the notice to quit that they had received a notice to quit from their landlords and that in the absence of such indication in the notice served upon the defendant the suit should have been dismissed. This submission is again unacceptable. It has been held by the majority decision in the case of Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar decided by the Special Bench : AIR1964Cal1 that there is no necessity to indicate the grounds of eviction in a notice contemplated under Section 13 (6) of the West Bengal Premises Tenancy Act. Of course in this case the grounds were stated but the plaintiffs did not indicate the nature of evidence as to be produced at the time of trial, that is to say, that they had already received a notice from their landlords to quit the room in which they had been carrying on business. The first point, therefore, in my view has got no substance

3. The second point urged by Mr. Bhunia is that after the amendment in 1969 already referred, to the plaintiffs ought to have amended their plaint stating that they required the suit premises for their own use and occupation as they had no other reasonable suitable accommodation and that the additions and construction on the suit premises could not be done without the suit room being vacated. It should be noted in this connection that on the prayer of the learned Advocate appearing on behalf of the defendant-appellant in the previous second appeal the matter was sent back on remand to the first appellate court for taking additional evidence from the parties on the point whether the constructions could be made without the premises being vacated and whether plaintiffs had any other reasonable suitable accommodation as indicated in the amended Clauses (f) and (ff) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act of 1956. The parties well knew what evidence was to be adduced by the parties and what decision should be arrived at by the first trial court. The points for decisions were well known to the parties. Besides the knowledge of the parties, in my view, in a case like this there could be no question of amendment of the plaint or inserting the allegations about the absence of suitable accommodation of the plaintiffs or that the constructions could not be made without the premises being vacated. Moreover, at no point of time earlier, any such plea was taken either in the previous second appeal or before the first appellate court after remand. This second point, therefore, is overruled.

4. It has next been submitted by Mr. Bhunia that the judgment is vitiated as there is no time stipulated in the plaint of the construction as required under Section 18-A of the West Bengal Premises Tenancy Act. According to Sub-section (1) of Section 18-A of the Act when the court passes a decree for recovery of premises on the ground mentioned in Clause (f) of Sub-section (1) of Section 13, it shall specify the period within which building or rebuilding or the additions or alterations to such premises shall be completed and may on the application of the landlord extend such period from time to time for good and sufficient reason. Of course in the present judgment we find no such direction. But the absence of such direction does not vitiate the judgment when the second appeal is pending because this Court sitting in second appeal can pass necessary direction under Section 18-A of the Act. Of course Mr. Bhunia has conceded that this Court has power to pass such directions.

5. Mr. Bhunia has next contended that after the institution of the suit and the passing of the decree, the plaintiffs have got possession of two other rooms near about the place of business and, therefore, the plaintiffs at present did not require the suit premises either for the building purposes or for their own use and occupation. Mr. Bhunia has prayed for a direction for taking additional evidence on these points by the Court below and for reconsideration of the matter. On the side of the appellant an affidavit has been sworn supporting an application for taking additional evidence wherein it has been stated that two rooms were taken possession of by the plaintiffs in the meantime. In the counter-affidavit filed on the side of the plaintiff respondents it has been stated that one of the said two rooms was taken possession of by one of the plaintiffs for his own business which is being carried on separately and the other room has also been taken possession of by another of the plaintiffs for his own separate business. The evidence is that the plaintiffs are jointly carrying on a cloth business in the name of 'Ghatal Cloth Stores' and we also find that some of the other plaintiffs carry on their own separate business. The main question before us is whether the plaintiffs taken jointly require the suit premises for the 'business carried on by them as stated in the plaint. It may well be that some of the plaintiffs carry on their new or separate business but that business cannot have any connexion with the business in which we are concerned in the suit. The question, therefore, is whether as stated in the plaint any accommodation was obtained by the plaintiffs for their joint business, namely, the cloth business mentioned in the plaint. Clearly the allegations made by the defendant-appellant have been denied by the plaintiffs that they got any accommodation for their cloth business. When there is contradiction and the allegations are not admitted there can be no question of taking notice of any fact subsequent to the decision of the trial court or to the institution of the suit. Moreover, when additional evidence was taken under the direction given in the previous second appeal the defendant did not care to adduce any such evidence. Whatever the fact may be, at this stage that question cannot be considered in view of the fact and circumstances already mentioned the prayer for additional evidence is, therefore, turned down.

6. Mr. Bhunia lastly submitted that the courts below did not consider all the pieces of evidence recorded and in this connexion it has been argued that the courts below erred in law in not considering the reasonable requirement of the defendant. Mr. Bhunia's contention is that while considering the reasonable requirement of the plaintiff, the court will also look to the reasonable requirement of the defendant. This contention I must frankly say is utterly unacceptable. Clause (f) of Section 13 (1) of the West Bengal Premises Tenancy Act says that a decree for eviction can be obtained if it is proved that the premises in question are reasonably required by the landlord for purposes of building and rebuilding or such construction as referred to there and in Clause (ff) also it has been stated that such decree can be passed where the premises are reasonably required by the landlord for his own occupation. There is no statement or any faint indication even in any part of the provision that the requirement of the defendant should also be put to balance to weigh the importance of the plaintiffs' requirement. The law says that if the plaintiff wants a decree for eviction of his tenant, he must prove to the satisfaction of the court that he reasonably requires the suit premises for the purposes mentioned in Clauses (f) and (ff). Mere wish or desire or intention to get the suit premises in possession is not enough. There must be some need or necessity on the part of the plaintiffs for obtaining such possession and that necessity again must be reasonable and reasonableness again implies bona fides. Unless the necessity of the plaintiffs is reasonable and bona fide, he cannot get any decree for eviction. Therefore, the complete onus is upon the plaintiff to prove to the satisfaction of the court that he requires reasonably the suit premises as indicated in Section 13 (1) (f) and (ff). I, therefore, cannot agree with Mr. Bhunia when he says that the court must consider also the reasonable requirement of the defendant before passing any decree for eviction on the ground of reasonable requirement of the plaintiff.

7. An attempt has been made to argue that if the requirement indicated in Section 13 (1) (f) and (ft) does not relate to tenant also, then the Clauses (f) and (ff) violate Articles 14 and 19 of the Constitution of India. This argument is unacceptable because Article 14 speaks of equality of persons before the law and their equal (protection under the law and Article 19 declares right to freedom of speech, assembly, movements etc. as stated in the Article. These two Articles are not relevant to the question of reasonable requirement to be proved by the landlord. In this connexion Mr. Bhunia's contention is that the Landlord cannot for huge earning in his business evict a tenant having a meagre income. According to Mr. Bhunia, this requirement is unreasonable. I cannot agree to this proposition. The requirement, we are concerned with, must be reasonable and bona fide and the same must be of the landlord and not of tenant. The landlord has a right to use the building under the tenant's occupation not only for preservation of his business but, also for using the same to improve the business for making more profits, Thus the tenant can have no objection provided of course the requirement of the landlord is bona fide. This point again is not acceptable.

8. No other point has been raised on the side of the appellant

9. As I find that there is no merit in this appeal I must now under Section 18-A of the West Bengal Premises Tenancy Act give a direction as to the period of time within which the construction should be completed. Considering the nature of the construction appearing in the evidence I think I should allow two years' time to the plaintiffs to complete the construction on getting possession of the suit premises. This direction is necessary specially because there may be cases when after obtaining decree the plaintiff may sleep over the matter and delay construction.

10. In the result, the appeal fails and the same is hereby dismissed with costs payable to the contesting respondents. I assess hearing fees at five gold mohurs.

11. It is submitted by the learned Advocate appearing on behalf of the appellant that some time may be allowed for the appellant to vacate the suit premises and remove his business. I find that about ten years have already passed from the institution of the suit in the trial court and the plaintiffs have obtained a decree on ground of reasonable requirement of the suit premises. However, considering the circumstances on the undertaking being filed by the appellant in writing through his learned lawyer in this Court within a fortnight hence, he will be allowed time to vacate till the expiry of four months from this day on condition that he will pay off all arrears of damages due, if any, within a fortnight and also go on depositing damages at the rental rate month by month within 15th of the month for which this becomes due. In case of violation of any of the conditions, the plaintiffs will be at liberty to execute the decree before the time already mentioned.


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