Smt. Gayatri Dutta & Ors vs Smt. Manika Ghosh
2022 Latest Caselaw 1665 Cal

Form No. J (1)

                 IN THE HIGH COURT AT CALCUTTA

                    CIVIL APPELLATE JURISDICTION



Present:

The Hon'ble Justice Biswajit Basu.

                               SA No. 601 of 2007
                            (IA No: CAN 09 of 2022)

                         SMT. GAYATRI DUTTA & ORS.
                                    VS.
                            SMT. MANIKA GHOSH.

For the appellants/petitioners:            Mr. Sumanta Biswas,
                                           Mr. Bikash Shaw.


For the respondent:                        Mr.   Rupak Ghosh,
                                           Mr.   Abhijit Sarkar,
                                           Mr.   Shantanu Mishra,
                                           Mr.   Abhik Chitta Kundu,
                                           Mr.   Bidish Ghosh.


Heard on            : 16.03.2022

Judgment on         : 30.03.2022



Biswajit Basu, J.

1. The present second appeal is at the instance of the tenants/defendants

in a suit for Ejectment and is directed against the judgment and decree dated

January 05, 2007 passed by the VIth Bench, City Civil Court at Calcutta in Title Appeal No. 11 of 2006 thereby affirming the judgment and decree dated

November 18, 2005 passed by the learned Judge, IVth Bench, Presidency Small

Causes Court Calcutta in Ejectment Suit No. 2458 of 2000.

2. The appellants were the tenants in respect of one shop room at the

ground floor of premises no. 172 Bidhan Sarani, Kolkata- 700006, under the

respondent. The respondent filed the said ejectment suit for eviction of the

appellants from the suit shop room on the ground that the respondent requires

the suit shop room for her own use and occupation as well as for the use and

occupation of her family members and she has no other reasonably suitable

accommodation elsewhere. The other ground on which the respondent sought

eviction of the appellants from the suit shop room is that the appellants had

defaulted in payment of rent.

3. The present second appeal was admitted under Order XLI Rule 11 of the

Code of Civil Procedure on December 18, 2007 to answer the following

substantial questions of law:-

i. Whether the learned Court of Appeal below committed substantial error of law in passing a decree for eviction on the ground of reasonable requirement by totally overlooking the admission of the plaintiff that the suit property cannot be used as Garage?

ii. Whether the Learned Court of Appeal below committed substantial error of law in passing a decree for eviction on the ground of reasonable requirement by not considering the fact that the

plaintiff is already in possession of seven rooms in the suit property and apart from those rooms, has separate chamber and at the same time he had no intention of using the suit property as his chamber without getting accommodation of shop rooms situated in the ground floor for which he had already filed suits?

iii. Whether the Learned Court of Appeal below committed substantial error of law in passing a decree for eviction on the assumption that the plaintiff would succeed in the other suits filed against the other shop-owners and after taking into possession of those shop-rooms, he will utilize the said shop room either as his chamber or his garage?

4. The plaintiff in the suit has pleaded her requirement for the suit shop

room to use it either as the chamber of her husband, who was a doctor or as

the garage to park her car. The defendants contested the suit, in the written

statement they stated inter alia that plaintiff after purchase of the suit

property, got vacant possession of one big room with covered verandah at the

ground floor of the suit premises from one tenant which the plaintiff initially

kept under lock and key but recently her son has started business in the said

room for the purpose of the said suit. It is the further case of the defendants

that the plaintiff used to collect rent for six months at a time but never issued

rent receipts, when the plaintiff refused to accept rent, the defendants started

depositing the same with the Rent Controller from July, 1999. The defendants

in their written statement further alleged that the husband of the plaintiff since

has a chamber at Premises No. 10A, Madan Chatterjee Lane, Kolkata- 700007,

he does not require the suit shop room.

5. In view of the nature of requirement, both the learned Courts below

rightly did not consider the occupation of the plaintiff in the first floor and

second floor of the suit premises. The only relevant consideration in this case is

the extent of occupation of the plaintiff in the ground floor of the suit premises.

The learned Trial Judge from the materials-on-record held that it is an

admitted position that besides the suit room, there are two other road side

shop rooms at the ground floor of the suit premises occupied by the tenants

and suits for eviction are pending against the said tenants. The plaintiff is in

occupation of one room at the said ground floor in which the son of the plaintiff

is running a business under the name and style of "Saswata Infotech".

6. The defendants challenged the bona fide of the requirement of the

plaintiff for the suit shop room on the ground that the size of the suit shop

room is too small to be used as a garage without remodeling and/or

renovation. The learned Trial Judge relying on the decision of the Hon'ble

Supreme Court in the case of S.R. BABU vs. T.K. VASUDEVAN AND OTHERS

reported in (2001) 8 SCC 110 overruled the said challenge holding that the

plaintiff is entitled to use the suit room according to her convenience, either as

it is or after necessary repairs, addition or alteration and accordingly decreed

the suit. The defendants in appeal, were unsuccessful in reversing the said

findings of the learned Trial Judge.

7. In the present second appeal, the appellants have taken out an

application under Order XLI Rule 27 of the Code of Civil Procedure being CAN

09 of 2022. In the said application, the appellants have stated, inter alia, that

the husband of the respondent has expired during the pendency of the present

second appeal, as such the suit shop room is no longer required for the

chamber of the husband of the respondent. It has further been alleged in the

said application that the respondent recently has obtained possession of one

room at the ground floor and two rooms at the second floor of the suit

premises, and the respondent has converted the said ground floor room into a

garage, therefore, the requirement of the respondent for the suit shop room has

been fully satisfied. The appellants by the said application have prayed for

appointment of a special officer to inspect the suit premises to ascertain the

extent of occupation of the respondent in the suit premises and whether the

respondent has also modified and/or altered her occupied portions in the suit

premises to meet the requirement.

8. The respondent has filed affidavit-in-opposition to the said application to

which the appellants have filed reply. In the said affidavit-in-opposition the

respondent has stated that although she has obtained possession of one

ground floor shop room of the suit premises but her son is using the said room

as the garage to park his car and she is still parking her car on road on

payment of night parking charges to the Kolkata Municipal Corporation,

photocopy of the receipts of such payments have been annexed with the said

affidavit-in-opposition.

9. The learned advocate for the appellants submits that in an eviction

proceeding on the ground of reasonable requirement, even second Appellate

Court can take into account any subsequent events and in support of his such

submissions, he places reliance on the decision of the learned Single Judges of

this Court in the case of SHYAM PYARI DEVI vs. OM PRAKASH SHAW

reported in (2000) 3 ICC 383 and the case of NETAI CHANDRA PAUL & ANR.

vs. DILIP KUMAR SAHA reported in (2005) 4 CHN 819. He further submits

that the husband of the respondent as witness in the suit has admitted that

the suit shop room without addition or alteration cannot be used as garage but

both the learned Courts below without considering the said admission, have

decreed the suit and thereby have committed substantial error of law. He

placing reliance on the decision of the Hon'ble Supreme Court reported in

(2001) 8 SCC 110 (supra) contends that the learned Courts below should have

considered the hardship of the tenants/appellants before decreeing the suit.

10. Learned counsel for the respondent on the other hand submits that the

subsequent events sought to be brought in the records of the present second

appeal do not affect the decisions of the Courts below inasmuch as the said

subsequent events do not alter the requirement of the respondent for the suit

shop room. He submits that the plaintiff requires the suit shop room either to

use it as the chamber of her husband or to use it as a garage to park her car,

no doubt after the death of her husband, requirement of the respondent for

such chamber has been extinguished, but her requirement for a garage to

park her car remains.

11. The said learned advocate further submits that even after obtaining

possession of one ground floor shop room, the requirement of the respondent

has not been fully satisfied since the son of respondent is using the said shop

room as his garage and the respondent is still parking her car on road on

payment of parking charges to the Kolkata Municipal Corporation. He next

contends that the suit was filed way back in the year 2000, the appellants

successfully have kept the lis pending for more than twenty years and now they

are trying to take advantage of the said delay as the husband of the respondent

has died in the meantime. He emphatically submits that the crucial date for

deciding the bona fides of the requirement of the landlord is the date of

application for eviction, the landlord should not be penalized for the tardiness

of the legal system, in support of his such submission he refers to the decisions

of the Hon'ble Supreme Court in the case of KAMLESWAR PRASAD vs.

PRADUMANJU AGARWAL (DEAD) BY LRS. reported in (1997) 4 SCC 413 and

the case of GAYA PRASAD vs. PRADEEP SRIVASTAVA reported in (2001) 2

SCC 604.

He concludes his argument by submitting that the substantial questions

of law formulated in the present second appeal are essentially questions of fact,

as such, cannot be gone into in a second appeal and on the scope of Section

100 of the Code, he refers to the decisions of the Hon'ble Supreme Court in the

case PARAS NATH THAKUR vs. SMT. MOHANI DASI (DECEASE) AND

OTHERS. reported in AIR 1959 (SUPREME COURT) 1204, the case of

RAMACHANDRA AYYAR AND ANOTHER vs. RAMALINGAM CHETTIAR AND

ANOTHER reported in AIR 1963 (SUPREME COURT) 302 and the case of

MADAMANCHI RAMAPPA AND ANOTHER vs. MUTHALURU BOJJAPPA

reported in AIR 1963 (SUPREME COURT) 1633.

12. Heard learned advocate for the parties, perused the materials-on-record.

The plaintiff in the suit has pleaded her requirement for the suit shop room to

use it either as the chamber of her doctor husband or as a garage to park her

car. It is noteworthy to mention here that the plaintiff in paragraph 6(a) of the

plaint has pleaded her requirement for two garages on the road side of the suit

premises for keeping two cars of her family. The evidence-in-chief of P.W.1, the

husband of the plaintiff on this point is "our family have two cars of which one

Maruti Car No. WNW-8525 and another car No. WB-02-G-6037, but due to

shortage of accommodation, we sold car No. 8525. But, we require two garages

for our car parking. ........" Record reveals that the said witness during cross-

examination was not even put to any contrary suggestion.

13. Suitability of the suit shop room for use of it either as doctor's chamber

or as a garage is not in dispute since it is situated on the roadside. The

respondent does not require a chamber for her husband as he has expired in

the meantime but her requirement for the suit shop room to use it as her

garage still exists as she owns a car and is keeping it on the road on payment

of night parking fees to the Kolkata Municipal Corporation. Once it is decided

that the plaintiff requires the suit shop room to use it as her garage, the

question as to whether it can be used for the said purpose without any addition

or alteration is of no consequence inasmuch as it is for the respondent to

decide the manner of addition and or alteration in it, the tenant cannot defeat

the bona fide requirement of the landlord on the said plea. The Hon'ble

Supreme Court in the case reported in (2001) 8 SCC 110 (supra) has held that

once it is found that the landlord requires the additional accommodation for

his personal use, the landlord becomes entitled to use it to best suit his

requirement he can use it as it is or after necessary repair, addition or

alteration, the tenant has no say in such matter. Therefore, non-consideration

of the said alleged admission of the P.W.1 by the appeal court below does not

give rise to any substantial question of law.

14. The plaintiff claims that suit shop room is required for her own use and

occupation and for the use and occupation of her family members. The plaintiff

during the pendency of the present second appeal has obtained possession of

one shop room at the ground floor of the suit premises. One of the sons of the

plaintiff is using the said shop room as garage to park his car. The said son is a

family member of the plaintiff, as such, his requirement for a garage comes

within the zone of bona fide requirement of the plaintiff. Moreover, the

requirement of the plaintiff is for two garages therefore even after getting

possession of said one shop room, requirement of the plaintiff for the suit shop

room still subsists.

15. There is no dispute with regard to the proposition of law that in a suit for

eviction on the ground of reasonable requirement the court even at the second

appellate stage can take note of subsequent events but subject to the condition

that the said subsequent events are such which is affecting the decision of the

court, that has been laid down in the decision of the learned Single Judges of

this Court cited by the learned advocate for the appellants reported in (2000) 3

ICC 383(supra) and (2005) 4 CHN 819(supra). The Hon'ble Supreme Court in

the case reported in (2001) 2 SCC 604 (supra) cited by the learned advocate

for the respondent clarified that subsequent events may in some situations be

considered to have overshadowed the genuineness of landlord's need but only if

they are of such nature and dimension as to completely eclipse such need and

make it lose significance altogether. The subsequent events sought to be

brought in the records of the present second appeal by the application under

Order XLI Rule 27 of the Code neither affects or overshadows the decisions of

the courts below nor by the said subsequent events the requirement of the

plaintiff for the suit shop room has totally been eclipsed.

16. A second appeal under section 100 of the Code can be entertained by the

High Court only when the High Court is satisfied that the case involves a

substantial question of law. The decisions of the Hon'ble Supreme Court

reported in AIR 1959 (SUPREME COURT) 1204(supra), reported in AIR 1963

(SUPREME COURT) 302(supra) and reported in AIR 1963 (SUPREME

COURT) 1633(supra) cited by the learned advocate for the respondent are

apposite to the said proposition of law. The substantial questions of law framed

in the present second appeal fails to qualify the said requirement of Section

100 of the Code as the said questions are essentially questions of fact.

17. The decision of the Hon'ble Supreme Court reported in (2001) 8 SCC

110 (supra) relied on by the learned advocate for the appellants is misplaced in

the facts and circumstances of the present case inasmuch as the said case was

under Kerala Buildings (Lease and Rent Control) Act, 1965, the proviso

appended to Section 11 thereof stipulates consideration of the hardship of the

tenant at the time of enforcing a decree of eviction under the said Act but there

is no such provision in the West Bengal Premises Tenancy Act, 1956 under

which the parties of the present second appeal are litigating.

Summing up the discussion made above, this Court is of the opinion that

no such substantial questions of law are involved in the present second appeal

as framed under Order XLI Rule 11 of the Code on December 18, 2007.

S.A. 601 of 2007 and the application thereto under Order XLI Rule 27 of

the Code being CAN 09 of 2022 are dismissed.

The judgment and decree dated January 05, 2007 passed by the VIth

Bench, City Civil Court at Calcutta in Title Appeal No. 11 of 2006 affirming the

judgment and decree dated November 18, 2005 passed by the learned Judge,

IVth Bench, Presidency Small Causes Court Calcutta in Ejectment Suit No.

2458 of 2000 is hereby affirmed. There shall be no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(BISWAJIT BASU, J.)