Calcutta High Court (Appellete Side)
Ar Moloy Ghosh vs Tapan Kumar Mallick & Ors on 14 March, 2022
18 14.03.2022 SA 55 of 2021
Ct-08
with
I.A No. CAN 1 of 2019(Old No. CAN 11097 of 2019)
CAN 2 of 2020(Old No. CAN 1376 of 2020)
CAN 3 of 2021
ar Moloy Ghosh
Vs.
Tapan Kumar Mallick & Ors.
Mr. Asis Bagchi, Sr. Adv
Mr. Anit Rakshit
Mr. Sailendu Sekhar Bayerd
.... For the Appellant
Mr. Avhik Sarkar
.... For the Respondents
CAN 3 of 2021 (Substitutiion)
This is an application for substitution filed
consequent upon the death of the respondent no.
1, namely, Tapan Kumar Mallick, who died
intestate on 10th July, 2021 leaving behind him
the heirs and legal representatives, as described
in the cause tile of the application.
After hearing the learned counsel appearing
for the parties and considering the fact that the
heirs and legal representatives of the deceased
respondent no. 1 are major and sui juris and the
right to sue and be sued survives in favour of
such heirs mentioned in this application, we
allow the application for substitution and direct
substitution of heirs and legal representatives of
deceased respondent no. 1, as described in cause
tile of the application in stead of and in place of
the deceased respondent no. 1 in the appeal.
The application being CAN 3 of 2021 is thus
allowed without any order as to costs.
Office shall carry out the necessary
amendments in the cause title of the
Memorandum of appeal, as indicated
hereinbefore within one week from date.
Mr. Avhik Sarkar, learned counsel appearing
for the respondents, submits that he has
received instruction to appear on behalf of the
substituted respondents and undertakes to file
Vokalatnama in the department within one week
from date.
Now, we take the appeal for hearing.
This second appeal has come up for
admission.
Mr. Ashish Bagchi, the learned senior
counsel appearing for the appellant has raised
two questions of law in support of admission of
the second appeal.
The first question relates to the bar under
Section 13(3A) of the West Bengal Premises
Tenancy Act, 1956.
The second question relates to the finding of
the trial court on reasonable requirement, as it is
contended that the reasonable requirement for
the purpose of business is required to be proved
more specifically and strictly than the
requirement of a dwelling house.
In relation to the first issue it is an admitted
fact that the plaintiff is a transferee landlord at
the time of institution of the suit. Three-years
embargo under Section 13(3A) of the West
Bengal Premises Tenancy Act, 1956 was in
existence. However, the suit did not proceed and
subsequently after the expiry of three years, the
plaintiff filed an application for amendment of
the plaint. The said amendment was allowed
and the order of amendment was never
challenged.
The landlord in a pending suit or appeal can
always amend the plaint suitably to include the
ground of reasonable requirement, if in the mean
time three years have passed from the date of
transfer and in such case, the landlord should be
treated to have filed the plaint on the date of
amendment and if the said date falls beyond the
three years from the date of transfer, the rigours
of retrospective operation may be mitigated as
observed in Ramendra Vs. Sachi, reported in
AIR 1991 Cal 87.
In so far as the second issue is concerned,
both the courts below on the basis of the
evidence have arrived at a finding that there is a
reasonable requirement of the room in favour of
the plaintiff.
The plaintiff purchased a suit property on
18th May, 1991 from the wife of late Jaharlal
Das. At the time of transfer the appellants were
tenant under the said Nanda Rani Das and
paying rent month by month.
The plaintiff contended that from the month
of May 1991 till the month of August 1993, the
appellants did not pay the rent and they became
habitual defaulter. The plaintiff claims to be a
businessman and carrying on joint business
along with his two brothers at 150, N.S Avenue,
in his ancestral rented house, after the death of
his father. It was the case of the plaintiff that
other than the suit property and due to financial
stringency the plaintiff could not find out any
other suitable to run his exclusive business. It
was on that ground the plaintiff prayed for
eviction of the defendants.
The defendants in their written statement
have alleged that the plaintiff has sufficient
accommodation in the existing property and
accordingly the need of reasonable requirement
is illusory and the suit should be dismissed.
The appellants alleged that in the property in
which the plaintiff is presently residing had
sufficient space, which could be used
conveniently by the plaintiff for his business.
It was further contended that one of the
defendants, namely, Ram Krishna Ghosh filed a
preemption case in respect of the suit property
and the said suit is pending.
The plaintiff could carry on his business in
three vacant rooms in the ground floor of the
house situated at Vivekananda Road.
Accordingly, the plaintiff should be disbelieved
with regard to his reasonableness of
requirement.
Both the courts below arrived at a finding
that the plaintiff was in possession of three
vacant rooms at Vivekanantda Road was not
proved. The report of the Advocate Commissioner
did not show that the plaintiff had sufficient
space in the Vivekananda Road properly for
carrying his exclusive business. The appellants
also did not pray for appointment of any
commissioner to establish that the plaintiff was
occupying three vacant rooms in his house.
From the evidence of the advocate commissioner
it can be inferred that there was no vacant room
at Vivekananda Road wherefrom the plaintiff
could carry on his exclusive business.
Both the courts below, in our view, have
rightly decreed the suit in favour of the plaintiff.
Both the courts have relied upon the judgment of
the Supreme Court reported in (2005)12 SCC
778, where the Hon'ble Supreme Court observed
that "whenever a landlord seeks ejectment of a
tenant for bonafide requirement, it shall be
presumed to be genuine and bonafide." Once the
plaintiff is able to establish his bonafide
requirement for his business purpose, he is
entitled to a decree. Moreover, in the instant
appeal the plaintiff has established his
requirement of the said room for his own
business. The plaintiff being the landlord
certainly would have right to run his business for
livelihood and he would certainly prefer to carry
on his separate business at his own place as per
his choice.
Under such circumstances, in view of
concurrent finding of facts with the reasonable
requirement of the plaintiff in relation to the suit
property, we do not find any reason to interfere
with the order passed by both the courts below
and no substantial question of law is involved to
admit the present appeal.
Accordingly, SA 55 of 2021 is, therefore,
dismissed under Order XLI Rule 11 of the Code
of Civil Procedure.
In view of dismissal of the appeal, nothing
remains to be decided in the application for
injunction being CAN 11097 of 2019 and the
same is accordingly dismissed.
Learned counsel for the appellant has filed
an application being CAN 1376 of 2020 to
consider the subsequent events during the
pendency of the Title Appeal along with Advocate
Commissioner's report as additional evidence.
We have already considered the said document
while disposing of the second appeal and we do
not find from the said document any favourable
observation, which could tilt the issue in favour
of the appellants.
In view of the above, CAN 1376 of 2020 is
disposed of.
(Ajoy Kumar Mukherjee,J.) (Soumen Sen, J.)
