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Hahnemen Publishing Co. P. Ltd. Vs. Dinesh Chandra Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. Nos. 732, 734 and 735 of 1960
Judge
Reported inAIR1972Cal484,77CWN432
ActsWest Bengal Premises Tenancy Act , 1950 - Section 12(1)
AppellantHahnemen Publishing Co. P. Ltd.
RespondentDinesh Chandra Ghosh and ors.
Appellant AdvocateBijan Behari Das Gupta and ;Ashoke Kumar Sen Gupta, Advs.
Respondent AdvocatePrafulla Kumar Roy (Sr), ;Sudhir Ranjan Khastagir, ;Amal Kumar Ghosal and ;Provat Kumar Sen Gupta, Advs.
DispositionAppeals allowed
Cases ReferredMonohar Lal Mehta v. Raj Mohan Pandey
Excerpt:
- .....viz., that the premises is reasonably required by the landlord for the purpose of building and rebuilding plaintiff's case, in substance, was that the premises no. 1/29/1, bowbazar street, originally belonged to one prafulla bhar, but subsequently he leased out the same to the plaintiff, a partnership firm for 99 years. the plaintiff became lessee of the premises by a registered lease dated 8-10-1953. the defendants became tenants under the plaintiff by reason of the aforesaid lease. the plaintiff required the suit premises for the purpose of building and rebuilding and also under the terms of the said lease. the tenancy of the defendants had been determined by notice to quit but as the defendants did not vacate the premises, the plaintiff brought the above suits.2. the defence in.....
Judgment:

Amiya Kumar Mookerji, J.

1. These three appeals are by the plaintiff-landlord arising out of ejectment suits under Clause (h) of the proviso to Section 12(1) of the West Bengal Premises Tenancy Act. 1950 (hereinafter referred to as the 'Act') viz., that the premises is reasonably required by the landlord for the purpose of building and rebuilding plaintiff's case, in substance, was that the premises No. 1/29/1, Bowbazar Street, originally belonged to one Prafulla Bhar, but subsequently he leased out the same to the plaintiff, a partnership firm for 99 years. The plaintiff became lessee of the premises by a registered lease dated 8-10-1953. The defendants became tenants under the plaintiff by reason of the aforesaid lease. The plaintiff required the suit premises for the purpose of building and rebuilding and also under the terms of the said lease. The tenancy of the defendants had been determined by notice to quit but as the defendants did not vacate the premises, the plaintiff brought the above suits.

2. The defence in all the suits was, the denial of the plaintiff's requirement of different premises for building and rebuilding. The validity of the notice to quit was also challenged.

3. The trial Court decreed the plaintiff's suits upon the findings that the element of necessity for requirement of the different suit premises by the plaintiff for the purpose of building and rebuilding and its reasonableness have been made out. The proposed constructionwould not lead to diminish accommodation or any public disadvantage within the meaning of explanation to Section 12 (1) of the Act; all the tenancy had been validly determined by notice to Quit.

4. On appeal, the Court of appeal below set aside the judgment and decree of the trial Court and dismissed the plaintiff's suits upon the view that the state of the building was not such that it would require demolition or rebuilding; so the plaintiff's requirement of the houses for the purpose of building and rebuilding could not be called in any sense of the terms a reasonable requirement within the meaning of Clause (h)' of Section 12 (11 of the West Bengal Premises Tenancy Act, 1950; in suit No. 1929 there 'had been no service of ejectment notice upon the defendant in that suit. The plaintiff being aggrieved against the said judgment and decree of the Court of appeal below preferred these second appeals in this Court.

5. Mr. Das Gupta, appearing on behalf of the appellant, contends that the Court of appeal below erred in law in holding that the proviso (h) to Section 12 (1) of the Act would have no application unless the state of the premises was such that it required to be built. That proviso does not mention building and rebuilding of the premises: what it states is, that proviso will apply where the premises is reasonably required by the landlord for the purpose of building and rebuilding. So the Court is required to consider whether the plaintiff has satisfied that his requirement is reasonable and he has got necessary funds to carry out such reconstruction.

6. Proviso (h) to Section 12 (1) lays down three classes of cases in which a landlord can get a decree for ejectment when the landlord reasonably requires the premises: (1) for the purpose of building and rebuilding; (2) his own occupation; (3) occupation of any person for whose benefits the house is held. The word 'reasonably' qualifies all the above three classes of cases.

7. There is nothing In the said proviso contended by Mr. Das Gupta to show that the landlord is entitled to get a decree for the purpose of building and rebuilding unless he could satisfy the Court that the building is old and dilapidated. The terms of the section are wide enough to include cases where the landlord reasonably requires the premises for the purpose of building and rebuilding and for his own purpose and other legitimate purposes. A purpose to demolish an existing building and to reconstruct it into a bigger one cannot by itself be regarded as unreasonable. It is not the state or the condition of the building that is to be considered but the reasonable requirement of the landlord for building and rebuilding is the determining factor.

8. Mr. Roy, appearing on behalf of the respondents contends that the plaintiff has specifically stated in the plaint that in terms of the lease the plaintiff required the premises for the purpose of building end rebuilding.

9. In the instant case the plain-tiff is claiming ejectment of the defendants under the first part of the proviso, viz. of requirement for building and/or rebuilding purposes. Requirement of plaintiff's own occupation has not been Stated in the plaint. It is stated in paragraph 4 of the plaint that the premises is reasonably required by the plaintiff for the purpose of building and rebuilding and the plaintiff also relied for that purpose under the terms of the lease. Mr. Roy remarked that the plaintiff wanted to eject the tenants from the disputed premises for the purpose of building and rebuilding only because there was a condition in the lease that steps should be taken to get ejectment of the tenants and thereafter to construct a new house on the demised land. According to Mr. Roy, the plaintiff's suits should have failed on that ground alone.

10. The Court of appeal below found that particular clause in the lease was unlawful under Section 23 of the Indian Contract Act. Apart from that clause in the lease, if the plaintiff could establish that he reasonably requires the premises for building and rebuilding, obviously he is entitled to get a decree. The Court of appeal below dismissed the plaintiff's suits solely upon the view that the condition of the disputed premises did not require demolition or rebuilding.

11. Mr. Das Gupta contends that the plaint should contain the material facts and not the evidence by which they are to be proved. It is clearly stated in the plaint that the plaintiff reasonably requires the premises for the purpose of building and rebuilding. So that statement of fact alone constitutes the cause of action.

12. Mr. Roy points out that an objective test is to be satisfied upon objective facts which would lead to the conclusion that the landlord reasonably requires the premises. In absence of such facts in the Plaint it is impossible to come to the conclusion that the plaintiff requires the suit premises for the purpose of building and rebuilding.

13. Objective facts, which I understand, are those facts pertaining to its object; and an objective test is to treat a subject so as to exhibit the actual facts, not coloured by one's feeling or opinion. In the instant case, a specific issue was raised viz. Are the suit premises reasonably required by the plaintiff for the purpose of building and rebuilding? Theevidence led on that issue upon which the parties actually went on trial. Upon the consideration of the evidence adduced by the parties, the trial Court came to the conclusion that the plaintiff reasonably required the premises for the purpose of building and rebuilding. Therefore, I am unable to accept the contentions of Mr. Roy that in absence of stating the 'objective facts' in the plaint, the Court could not apply 'objective test' in coming to the conclusion that the plaintiff reasonably required the premises for the purpose of building and rebuilding.

14. The Court of appeal below did not consider the evidence relied upon by the trial Court in coming to the conclusion that the requirement of the different suit premises by the plaintiff for the purpose of building and rebuilding and its reasonableness had been made out. The reasonable requirement is a question of fact and the final Court of fact ought to have considered and come to a firm finding.

15. It seems that the Court of appeal below fell into an error in holding that the principle of Law as laid down by this Court in Bhola Singh's case. : AIR1950Cal74 , under the 1948 Act would not be applicable to 1950 Act inasmuch as 'bona fide requirement' in the former Act has been changed to 'reasonable requirement' in the latter Act. In order to get a decree on the ground of rebuilding, the Court has to be satisfied with the reasonableness of the requirement. In Bhola Singh v. Gnanendra Kumar. : AIR1950Cal74 the landlord filed a batch of ejectment suits under proviso (f) to Section 11 (1) of the West Bengal Rent Control (Temporary Provision) Act. 1948. The said proviso is similar to proviso (h) to Section 12 (1) of 1950 Act. Harrish. C. J. observed that proviso (f) to Section 11 (1) of the Act does not mention premises requiring rebuilding. What it states is, that Sub-section (1) shall have application if the landlord requires the premises bona fide for rebuilding. The state of the premises, therefore, is not an essential factor in the case.

16. Therefore, in my view, in asuit for ejectment under proviso (h) to Section 12 (1) of the West Bengal Premises Tenancy Act. 1950, the state or the condition of the building is not the test of building and rebuilding. The determining factor is whether the purpose for which the rebuilding is proposed is reasonable or not.

17. The trial Court found that the proposed construction will not lead to diminish accommodation or any public disadvantage within the meaning of explanation to the proviso (h) of Section 12 (1) of the Act.

18. The Court of appeal below was of opinion that the disputed premises did not require to be built or rebuilt, so the question of extended public accommodation was not a vital point in the instant case and furthermore the plaintiff by constructing a new building on the remaining portion of the demised land could easily increase the accommodation if he really intends to increase the same.

19. There is no law by which the Court could direct the landlord to alter his plans. All that the Court is required to do is to satisfy its conscience that the proposed building and rebuilding is not a ruse to get rid of his existing tenants (vide, Monohar Lal Mehta v. Raj Mohan Pandey, (1968) 72 Cal WN 393).

20. The explanation to proviso (h) to Section 12 (1) of the Act, in my opinion, has got no nexus with the reasonable requirement of the landlord. The Court in granting the plaintiff a decree for ejectment on the ground of reasonable requirement for building and rebuilding, shall take into consideration the comparative public benefits or disadvantage by extending or diminishing accommodation. But the public benefit cannot be the sole guiding factor to determine the landlord's reasonable requirement. When the plaintiff succeeds in establishing his claim of reasonable requirement, thereafter, the explanation comes into play, but at the same time it cannot overweigh the landlord's reasonable requirement, even if any increased accommodation does not result from the proposed building.

21. Reasonable requirement is a question of fact. The trial Court found it in favour of the plaintiff-landlord. The Court of appeal below as the final Court of facts, is required either to accept or reverse the findings of fact arrived at by the Court below. This has not been done in the present case. The Court of appeal below did neither reiect nor accept the findings of the trial Court and the evidence relied upon by the trial Court in coming to the conclusion that the plaintiff reasonably required the disputed premises for building and rebuilding. The Court of appeal below dismissed the plaintiff's suit mainly on the ground that the condition of the building did not require building and rebuilding and the plaintiff-company failed to prove its requirement supported by any resolution passed at a meeting of the Board of Directors. But such resolution by itself similar to the terms in the lease, in my opinion, does not conclusively prove reasonable requirement. So, mere absence of such resolution cannot disentitle the plaintiff to claim ejectment if he could satisfy its reasonable requirement by other material evidence. In deciding second appeals. I cannot decide the question of facts, so under these circumstances, it is desirable that the appeal should be reheard by the Court of appealbelow.

22. In the result, the second appeals Nos. 732 and 735 are allowed, the judgment and decree of the Court of a-p-peal below are set aside and the appeals are remitted to the Court of appeal below for rehearing. The Full Bench of the Small Cause Court is directed to decide afresh the only point whether the plaintiff reasonably requires the premises for building and rebuilding, without taking into consideration the condition of the building and the terms of the lease dated 8-10-1953 between the plaintiff and its lessor and decide the appeals in accordance with law. As regards requirements of the Explanation to proviso (h) of Section 12 (1) of the Act, he will follow the directions 93 indicated hereinabove.

23. Regarding the notice to quit in suit No. 1929 which corresponds to the S. A. 734/60, I affirm the findings of the Court of appeal below that the notice of ejectment was not tendered to the defendant of that suit and accordingly S. A. No. 734/60 is dismissed.

24. There will be no order as to costs in any of the appeals.


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