Sushil Chowdhury vs Sumita Banerjee @ Sushmita ...
2022 Latest Caselaw 1299 Cal

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                    IN THE HIGH COURT AT CALCUTTA

                        (Civil Appellate Jurisdiction)

                             APPELLATE SIDE

Present:

The Hon'ble Justice Subrata Talukdar

                and

The Hon'ble Justice Krishna Rao

                              SAT 20 of 2019
                                    With
                           IA. No. CAN 1 of 2019
                         (Old No. CAN 766 of 2019)

                             Sushil Chowdhury
                                     vs.
                    Sumita Banerjee @ Sushmita Banerjee



For the Appellant               : Mr. Buddhadeb Ghosal
                                 Mr. Anirban Mitra
                                 Mr. Amit Halder
                                 Md. Wasim Akram
                                                             ..... Advocates

For the State                    : Mr. Sirsanya Bandopadhyay
                                   Mr. Arka Kumar Nag
                                                              .....Advocates

Heard on                        : 09.02.2022

Judgment on                      : 17.03.2022

Krishna Rao.: This Second Appeal is directed against the Judgment and

Decree passed by the Ld. Judge City Civil Court, 2 nd Bench Kolkata in Title
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Appeal No. 5 of 2019 (Sumita Banerjee vs. Sushil Chowdhury) dt.

20.09.2018.


        Originally the opposite party/ plaintiff, Smt. Maya Das (since deceased),

had filed an Ejectment Suit No. 268 of 2010 (Maya Das vs. Sushil Chowdhury)

before the Ld. Judge 6th Bench Presidency Small Court, Kolkata against the

appellant/ defendant with respect of two (2) rooms with both, privy and

kitchen on the first floor (a complete flat) at premises no. 23, Jorapukur Lane,

Kolkata under P.S. Girish Park.


        The appellant, being the defendant, contested the said suit by filing

written objection.     The main ground for filing of the suit by the opposite

party/ plaintiff against the appellant/defendant is for reasonable requirement

and default in paying rent by the appellant as tenant.


    The Learned Trial Court, after completion of pleadings framed the

following issues:-


   1.

Is the suit maintainable in its present form and law?

2. Is there any cause of action for this suit?

3. Is the defendant a defaulter in payment of rent since January 2010?

4. Does the plaintiff reasonable require the suit premises for the use and occupation?

5. Does she have any other alternative, suitable accommodation to meet up said requirement?

6. Is she is owner of the suit premises or does she have any title, interest on it?

7. Is the notice to quit dt. 07.02.2010 legal, valid and sufficient? If so, is it duly served upon the defendant side?

8. Is that any land lord tenant relation between the parties?

9. If the suit bad for defect of parties?

10. Is the plaintiff entitled to get the decree and relief prayed for?

11. Is she entitle to any other relief (S) as per law and/or equity?

12. Has defendant shifted the member of his family elsewhere other than this tenancy?

During the pendency of the suit and before recording of evidence the

original plaintiff Smt. Maya Das expired and thereafter the opposite party,

being the only legal heir of the original plaintiff, was substituted.

The Opposite Party had examined altogether three (3) witnesses namely

Chandra Nath Banerjee as PW-1, Chandomita Banerjee as PW-2 and Parna

Das (Advocate Commissioner) as PW-3. During the evidence on the side of the

plaintiff altogether seven (7) documents were exhibited as Exhibit-1 to

Exhibit-7.

The opposite party had adduced only one witness, i.e. himself as DW-1.

During his cross-examination, he has admitted 6 (six) documents placed by

the Counsel for the opposite party /plaintiff and on admission six (6)

documents were Exhibited as Exhibit-8 to Exhibit-13.

On completion of evidence and after hearing of arguments from both

sides, the Ld. Trial Court had dismissed the suit of the opposite party/

plaintiff on 12.12.2014 on the ground that the opposite party failed to prove

the bonafide requirement and the notice issued by the opposite party was not

legal and valid as per the Provisions of Sub Section (1) of Section 6 of The

West Bengal Premises Tenancy Act, 1997.

The opposite party/ plaintiff, being aggrieved and dissatisfied with the

judgment and decree dt. 12.12.2014, had preferred an appeal before the First

Appellate Court, i.e. before the Learned City Civil Court, 2nd Bench Kolkata

being T.A. No. 5 of 2015. On receipt of the notice of appeal, initially the

appellant had appeared before the First Appellate Court in the said appeal but

subsequently the appellant did not participate and contest the First Appeal.

The Ld. First Appellate Court after hearing the argument of the opposite

party had passed a Judgment and Decree dt. 20.09.2018 by setting aside the

Judgment and Decree passed by the Ld. Trial Court and decreed the suit by

directing the appellant to quit, vacant & handover the vacant khas possession

of the suit premises to the opposite party/plaintiff within ninety days from the

date of judgment.

Being aggrieved and dissatisfied with the Judgment and Decree passed

by the First Appellate Court in Title Appeal No. 5 of 2015 dt. 20.09.2018, the

appellant/ defendant has filed the instant 2nd appeal.

Mr. Buddhadeb Ghosal, the Ld. Counsel appearing for the appellant,

submitted that the First Appellate Court failed to appreciate the true content

and purport of the Premises Tenancy Act, 1956 as after the death of the

original plaintiff the personal requirement ceases. The Learned Counsel for

the appellant has further submitted that the opposite party has suppressed

the existence of the other premises in the plaint and had filed the suit for

obtaining a favourable order from Court.

Mr. Ghosal further argued that after the death of original plaintiff, the

substituted plaintiff has not filed any application for amendment by

incorporating the requirements of the suit property. He further argued that

the notice of eviction is not having any ground for eviction as provided under

Section (1) of Section 6 of the West Bengal Tenancy Act, 1997.

Mr. Ghosal also contended that the First Appellate Court failed to

appreciate the evidence adduced by the parties during the trial and the Ld.

First Appellate Court did not consider the Issue nos. 4 and 5 (supra) in true

perspective.

The Ld. Counsel further submitted that the substituted plaintiff did not

file any application for appointment of Commissioner to ascertain whether

any alternative suitable accommodation of the plaintiff is available or not.

Mr. Ghosal further contended that the Ld. First Appellate Court ought

to have construed that the opposite party/ plaintiff have more than sufficient

accommodation so far their requirements are concerned and the Ld. First

Appellate Court has erroneously passed the impugned Judgment and Decree

without any justifiable ground.

Ld. Counsel for the appellant prays for admission of the second appeal.

This Court has considered the submissions made by the Learned Counsel

for the appellant and the grounds taken in the instant appeal, the judgment

passed by the Ld. Trial Court and the Judgment passed by the Ld. First

Appellate Court.

The Ld. Trial Court, out of the 12 issues, has specifically framed Issue

nos. 4, 5, 6, and 7 which reads as follows:

4. Does the plaintiff reasonable require the suit premises for the use and occupation?

5. Does she have any other alternative, suitable accommodation to meet up said requirement?

6. Is she is owner of the suit premises or does she have any title, interest on it?

7. Is the notice to quit dt. 07.02.2010 legal, valid and sufficient? If so, is it duly served upon the defendant side?

This Court considered the evidence of PW-1 Shri Chandra Nath

Banerjee and during his evidence; the said witness has categorically described

the premises in question as well as their personal requirements which are as

follows:

"The premises is a very small one and also a very old building. The ground floor consists of one medium sized room and small rooms, (as will appear from Ld. Commissioner's report) two small rooms, the first floor consist of the suit premises being a compact flat as mentioned above and the second floor consists of one bedroom with kitchen space and bathroom only. The roof on the second floor of the building is very old and is damaged and water percolates and or seepage of water is an incident annexed with the second floor room in the rainy season. The roof on the second floor requires total replacement and at places of ceiling plasters are falling down.

I further say that, our daughter namely Chandomita Banerjee holds a post graduate degree. I further mention that within short period of time, I am scheduled to retire from service. I say that the plaintiff and ourselves requires the following rooms for our won use and occupation and for the use of our family members of their vocation, teaching and for other purposes and for the purpose of earning livelihood and also to enhance income and to cope with present market situation.

I say that I and my wife require one bedroom and one kitchen for ourselves.

I require another bed room for our daughter namely Chandomita Banerjee for using as bed room for herself. She requires also one room

for her study room in as such as she is a very studious student and keeps herself engaged in enhancing knowledge and in research matters as a student of this generation. She also requires a computer with internet connection or otherwise to be installed or kept in the study room along with her books and other study materials. I also say that our daughter namely Chandomita Banerjee wants to open a coaching centre on the ground floor to coach students herself and with the assistance of different tutors on various subjects on the ground floor and to keep computer, chairs, tables and benches required therefore, for starting of the coaching centre along with a small rest room with toilet facilities. She requires at present the entire ground floor rooms.

I say that the first floor compact flat is required as bedroom for myself and my wife and the other room on the first floor of the suit premises is required as drawing cum sitting room for the purpose of visit of relatives, colleagues, friends including the guestroom.

I say that one permanent lady has been accommodated to assist us in domestic affairs to the present plaintiff and my daughter and she resides on the other damaged room on the second floor wherein the roof is damaged and the water percolates as mentioned above.

I say that the second floor room is required by us for the purpose as mentioned above and we require the assistance of service of the lady and of the priest for all purposes of puja and assistance. We also require some space for our Thakur Ghar (Puja purposes) and for keeping idols."

The P.W.2 Chandranath Banerjee during her examination has

categorically stated that:

"I say that I require one bed room for myself, a study room with computer on the 1st floor at the suit building and two rooms on the ground floor (with bath privy) for giving tuition/coaching the students for myself. I want to start coaching classes for different subjects by engaging other teachers and one office room also for the said purpose on the ground floor.

I say that we have no other reasonable suitable accommodation except the said building of which my mother is owner and there is no other place where I can live with parents and start coaching classes/tuitions for my employment earning in these hard days in our

own house.

I and my family members reasonably require the suit premises for our residence and for starting the Coaching classes for myself as I am now under employed."

During the cross-examination of the said two witnesses, the appellant/

defendant has not brought anything adverse against the opposite party/

plaintiff to say that the evidence (supra) led by the said two witnesses are false

and opposite party/ plaintiff is having an alternative premises and without

the suit premises they can be accommodated properly.

The appellant has examined himself as DW-1 and during his

examination he has admitted that he is a tenant under the plaintiff with

respect to two rooms, privy and kitchen first floor at the premises no. 23,

Jorapukur Lane, Kolkata at a monthly rent of Rs. 800/- per month.

During his cross-examination the appellant/ defendant has admitted

that the opposite party/ plaintiff is the owner of the property in question. He

has further admitted that, "it is true that he has purchased the flat after

taking loan from the bank and he has purchased the flat in the year 2010."

He has further admitted in his cross-examination that "it is true that our flat

at North Karapara has three (3) bed rooms."

From the evidence of the appellant it has been proved by the opposite

party/ plaintiff that the appellant is a tenant under the opposite party and

opposite party is the owner of the premises and the appellant is having

alternative accommodation with a three bed room flat.

The opposite party/ plaintiff during their evidence has proved that the

suit premises is required for their bonafide requirement, i.e. for the purpose of

the use of their family members and also for the purpose of earning livelihood

and to start a Coaching centre by daughter of the plaintiff.

From the cross-examination of the appellant/DW-1, it is admitted that

the appellant has purchased a flat in the year 2010 and the flat is situated at

North Karapara having three (3) bedrooms which clearly reveals that the

appellant/defendant is having his alternative premises at Kolkata.

In view of the above evidence this Court holds that the First Appellate

Court has rightly decided the issues no. 4, 5 and 6 in favour of the opposite

party/ plaintiff.

As regards the contention raised by the appellant/defendant with regard

to the notice issued by the opposite party/ plaintiff to the appellant as the

same is not in accordance with Sub Section (1) of Section 6 of West Bengal

Premises Tenancy Act, 1997 as there is no ground is available in the said

notice, Sub-Section (1) of Section 6 of the West Bengal Premises Tenancy Act

1997, reads as follows:

"6. Protection of tenant against eviction.- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made [by the Civil Judge having jurisdiction] in favour of the landlord against the tenant, [except on a suit being instituted by such landlord] on one or more of the following grounds:-

(a) Where the tenant has sublet, assigned or otherwise parted with the possession of whole or any part of the premises without obtaining the consent to writing of the landlord or the tenant has used the premises for a purpose other than that for which it was let out without obtaining the consent in writing of the landlord;

(b) Where the tenant has made default in payment of rent for three months within a period of twelve months, or for three rental periods within a period of three years where the rent is not payable monthly;

© Where he premises is required by the landlord for the purposes of building or rebuilding or for making substantial addition or alteration thereto and such building or rebuilding or substantial addition or alteration cannot be carried out without the premises being vacated;

(d) Where the landlord or any person, for whose benefit the premises is held, reasonably requires the premises for his own occupation and the landlord or such person is not in possession of any suitable accommodation within the same Municipal Corporation or Municipality or in any other area within ten kilometers from such premises where this Act extends;]

(e) Where the tenant has given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice;

[(f) Where the tenant or any person residing in the premises let out to the tenant has done any act contrary to the provisions of clause

(m), clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882 ( 4 of 1882);]

(g) Where the tenant has been using the premises or any part thereof or allowing the premises or any part thereof to be used for immoral or illegal purpose;

(h) Where the tenant is guilty of any act of waste or of any negligence or default resulting in material deterioration of the condition of the premises;

(i) Where the tenant or any person residing in the premises let out to the tenant has guilty of conduct which is nuisance or causes annoyance to the neighbors including the landlord;

(j) Where the tenant has acquired or constructed, or has been allotted, a house or flat, provided a moratorium for one year is allowed for vacating the premises;

[Explanation.- This clause shall not apply to premises let out for non-residential purpose and used for commercial purpose;]

(k) Where the landlord is a member of the armed Forces of the Union of India and requires it for occupation of his family and produces a certificate of the prescribed authority referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925 (4 of 1925), that he is serving under special conditions within the meaning of section 3 of that Act or is posted in a non-family area;

(l) Where the tenant, or his spouse, or daughter, or parent, or the widow of his predeceased son, who is dependent on him, does not reside in the premises [ten months] and keeps the premises under lock and key."

Section 6 of the said Act provided protection of tenant against eviction

except on the aforementioned grounds. Sub-Section (1) (d) of Section 6

wherein it has been mentioned that where the landlord or any person, for

whose benefit, the premises is held, reasonably requires the premises for his

own occupation and the landlord or such person is not in possession of any

suitable accommodation within the Municipal Corporation or Municipality

area or in any other area within 10 kilometers from such premises where this

Act extends. It is the specific case of the opposite party/ plaintiff that the

appellant is a defaulter of payment of rent, personal requirement of the

premises and harassment by the appellant to the original plaintiff during her

life time. In the instant case, the plaintiffs by way of evidence of PW-1 and

PW-2 have proved that the premises is required for their reasonable

requirement but the defendant has not proved that the opposite party/

plaintiff is having a suitable accommodation in any other area within the 10

km from such premises. On the other hand the appellant/defendant during

his cross-examination has admitted that he is having an alternative

accommodation of three bed rooms flat which he has purchased in the year

2010 and hence the First Appellate Court has not committed any error by

setting aside the judgment and decree passed by the Ld. Trial Court.

As regard to the notice of eviction, the notice sent by the opposite

party/ plaintiff to the defendant was duly Exhibited as Exhibit-1 and the

postal receipts and AD Card as Exhibit 1 (a) and 1 (b) and during the cross-

examination of the appellant/defendant, the defendant being DW-1 has

admitted all the notices and which are marked as Exhibits 10, 11, 12 and 13

and as such the contention raised by the appellant that notice is not in

accordance with law is not sustainable.

After considering the above facts and circumstances this Court is of the

view, that there is no substantial question of law involved in the instant case

to admit the Second Appeal filed by the appellant.

SAT No. 20 of 2019 with CAN No. 1 of 2019 (Old CAN No. 766/2019)

stand accordingly dismissed.

The Judgment and Decree passed by the First Appellate Court in Title

Appeal No. 21 of 2015 dt. 20.09.2018 is affirmed.

The order of stay passed by this Court is hereby vacated.

Parties shall be entitled to act on the basis of a server copy of the

Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

I agree.

(Subrata Talukdar, J.)                                      (KrishnaRao, J.)