Jayanti Mali & Ors vs Jaganath Proshad Singh & Ors
2023 Latest Caselaw 1594 Cal

                IN THE HIGH COURT AT CALCUTTA
                    Civil Appellate Jurisdiction
                           Appellate Side

Present :-     Hon'ble Mr. Justice I. P. Mukerji
               Hon'ble Mr. Justice Biswaroop Chowdhury

                            SAT 39 of 2019
                 CAN 1 of 2019 (Old CAN 2479 of 2019)
                          Jayanti Mali & Ors.
                                      Vs.
                     Jaganath Proshad Singh & Ors.

   For the Appellants            :-    Mr. Gautam Chakraborty, Adv.
                                       Mr. Kartik Kumar Roy, Adv.

   For the Respondents           :-    Mr. Dhiraj Trivedi, Sr. Adv.

Ms. Swapna Jha. Adv.

   Judgment On                   :-    09.03.2023


   I. P. MUKERJI, J.:-

This second appeal under Section 100 of the Code of Civil Procedure

came up before us for admission. A second appeal can only be admitted

by the High Court only if a substantial question of law is involved in the

impugned judgment and decree.

To convince us that the intended appeal was worthy of admission, Mr.

Gautam Chakraborty learned advocate for the appellant, with great

vigour, took us through the facts of the case. He tried to impress upon us

that the dealing of the issues involved by both the learned courts below

was such that their judgments and decree could be termed as perverse.

Furthermore, the application of law by them was so erroneous that a

substantial question of law could be said to have arisen from the

impugned judgment and decree.

The suit is of 1999. It is between landlord and tenant. The ground of

reasonable requirement was added to the plaint by amendment. The

main question in the suit and before the first appellate court was

whether the landlord reasonably required the premises let out to the

tenant for residence or business. If the answer to this question was in the affirmative, the other question whether he had any reasonable and

suitable alternative accommodation was to be considered.

Now, I turn to the facts of this case in some detail.

One Jagannath Prasad Singh, the plaintiff owned premises No. 10/12,

Gobinda Khatick Road, Ps - Tangra, Kolkata - 700046. I will hereinafter

refer to it as "the premises". The original defendant was a monthly tenant

under him. It was in relation to a portion of the premises comprising of

one room with a tile shed having an area of 80 sq ft. I will refer to it as

"the suit premises". In 1999 the present suit was instituted by the

plaintiff [Title suit No.168 of 1999 in the court of learned Civil Judge,

(Junior Division) 2nd Court at Sealdah] after the tenancy was determined

under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 for

eviction of the original defendant on various grounds.

Subsequently, the plaint was amended to include the ground of

reasonable requirement of the landlord.

It was averred in the plaint that in need of accommodation the plaintiff

lived in a rented accommodation at premises 52, Creek Row, Kolkata -

700046 and his sons separately in a rented accommodation at premises

No.5 Falgun Das lane, P.S- Muchipara, Kolkata - 700012. It was alleged

by him that his family consisted of nine members which comprised of his

wife, sons, two daughters-in-law and himself. He needed at least eight

rooms for residential purpose and two rooms for his office. He was in

possession of only four rooms in the premises. In the premises there

were six rooms, four rooms were in the possession of the plaintiff, one in

the possession of Tulsi Shaw and the sixth room let out to the original

defendant.

The learned trial court by a judgment and decree dated 29th March, 2016

decreed the suit holding that indeed the plaintiff reasonably required the

suit premises for his residence.

By then the original defendant had died and his heirs, the appellants

were substituted as defendants.

They preferred a first appeal before the Additional District and Sessions

Judge, Fast Track Court - II, Sealdah, South 24 Paraganas. The learned

Judge of the first appellate court recorded in his judgment and decree

dated 7th December, 2018 that at the time of pronouncement thereof the

appellants were in possession of five rooms in the premises, having

reclaimed the room in the possession of Tulsi Shaw. The requirement of

the plaintiff would not be met by those five rooms. They were clearly

insufficient. The plaintiff was in need of the suit premises. The sons of

the plaintiff were residing outside the premises. The plaintiff was well

within his right to claim another room in the suit premises for the

purpose of his business. He was entitled to six rooms. The appeal was

dismissed.

This appeal turns on one sub-section of the West Bengal Premises

Tenancy Act, 1956. It is Section 13(ff) which is set out hereinbelow:

"13. Protection of tenant against eviction. _ 1) Notwithstanding

anything to the contrary in any other law, no order or decree for the

recovery of possession of any premises shall be made by any court

in favour of the landlord against a tenant except on one or more of

the following grounds, namely:-

(ff) subject to the provision of sub-section (3A), where the premises

are reasonably required by the landlord for own occupation if he is

the owner or for the occupation of any person for whose benefit the

premises are held and the landlord or such person is not in

possession of any reasonably suitable accommodation;"

Before we look into the facts, the law on the subject needs to be

appreciated.

To claim back a demised premises from the tenant a landlord has to

show that it is "reasonably" required for his own occupation. He is also

required to prove that he is not in possession of any "reasonably"

"suitable" accommodation. The landlord is the best judge of his

requirement as held in Prativa Devi (Smt) vs. T. V. Krishnan reported

in (1996) 5 SCC 353, Deep Chandra Judeja Vs. Lajwanti Kathuria

(Smt) (Dead) reported in (2008) 8 SCC 497 and Abid-ul-Islam vs. Inder

Sain Dua reported in (2022) 6 SCC 30.

In my opinion, a landlord can only declare his requirement, according to

the above authorities. A fanciful or absurd requirement of the landlord

would not do. The requirement must be adjudged to be reasonable by the

court. The standards by which a common man might consider that the

premises is required by the landlord for his own occupation is a good test

for the court to apply. Now, if the result of the first test is in favour of the

landlord, then the second test as provided in the sub-section has to be

applied. He has to prove that he is not in possession of any

accommodation. If he does possess an accommodation he has to show

that it is not suitable for him. His opinion of its suitability would not

suffice. Once again, the notion of a common man as to whether the

alternative accommodation is suitable for the landlord or not should be

the test for adjudging a "reasonably suitable accommodation", in my

opinion.

The learned first appellate court (the court) had held that in the absence

of denial by the appellants, the assertion of the respondent/plaintiff that

his family consisted of nine members stood established. The court went

on to hold that his requirement of a study room and a guest room was

justified. So, was the requirement of a room each for his wife and

himself, their elder son and his wife, and younger son and his wife,

together with a kitchen, worship room and another room for the two sons

of the elder son. The court found the demand for eight rooms to be

reasonable. The requirement of two rooms for business purpose was also

held to be reasonable. The premises consisted of six rooms, out of which

the respondent/plaintiff was in possession of four rooms, one was the

demised premises and the other in the possession of Tulsi Shaw. Hence,

he could claim the demised premises as reasonably required.

On the question whether the respondent/plaintiff had any alternative

suitable accommodation, the appellants alleged that he had alternative

residence accommodation in premises no. 52, Creek Row, 46, Loknath

Bose Garden Road and Gatakpukur, Kolkata Leather complexand

commercial accomodation. The court found that these accommodations

or some of them were owned by the sons of the plaintiff and hence, could

not be considered as accommodation belonging to him but it also went

on to hold that since the sons lived in the above accommodations owned

by them, the plaintiff could not claim extra accommodation in the said

premises on their account. Those were to be deleted from the area

claimed by the plaintiff as reasonably required. The court also found that

those alleged alternative accommodations belonging to the sons of the

respondent was far from suitable.

Now, Mr. Chakraborty sought to contend that during pendency of the

proceedings, one room which was in occupation of Tulsi Shaw had been

reclaimed by the plaintiff. Hence, he ceased to have any requirement of

the demised premises. The appellants were entitled to produce evidence

of this, even at the stage of admission of the second appeal. He also tried

to contend that during pendency of this appeal, the plaintiff died and this

further reduced the requirement of the substituted respondents. This

also, the court was obliged to take into account, even at the second

appellate stage in considering the question of reasonable requirement.

In Hasmat Rai & Anr. Vs. Raghunath Prasad reported in (1981) 3 SCC

103 the Supreme Court in one part of the judgment opined that the

landlord's requirement must be shown to continue to exist even at the

appellate stage.

The appellate court was required to "examine, evaluate and adjudicate"

the issue. Requirement "must continue to exist on the date when the

proceeding is finally disposed of either in the appeal or in the revision by

the relevant authority."

The court said:

"If the tenant is in a position to show that the need or requirement no

more exists because of subsequent events, it would be open to him

to point out such events and the Court including the appellate court

has to examine, evaluate and adjudicate the same. Otherwise the

landlord would derive an unfair advantage...................requirement

must continue to exist on the date when the proceeding is finally

disposed of either in appeal or revision, by the relevant authority."

However, in Gaya Prasad Vs. Pradeep Srivastava reported in (2001) 2

SCC 604 the same court ruled that a bonafide requirement must be

shown on the date of the application for eviction. It clarified the previous

dictum of the Supreme Court by saying that the change in the

requirement factor must be of "such a dimension that the need

propounded by the petitioning party should have been completely

eclipsed by such subsequent events." The court ruled:

"We have no doubt that the crucial date for deciding as to the bona fides of

the requirement of the landlord is the date of his application for eviction.

The antecedent days may perhaps have utility for him to reach the said

crucial date of consideration...................In our opinion, the subsequent

events to overshadow the genuineness of the need must be of such nature

and of such a dimension that the need propounded by the petitioning party

should have been completely eclipsed by such subsequent events."

Quoting from Hasmat Rai & Anr. Vs. Raghunath Prasad, (1981) 3 SCC

103 the bench observed that if subsequent events showed that the

landlord's requirement was wholly satisfied "his action must fail".

In Deep Chandra Judeja Vs. Lajwanti Kathuria (Smt) (Dead) reported

in (2008) 8 SCC 497 another bench of the Supreme Court ruled that

requirement was a question of fact. Concurrent findings of facts by two

courts, one of the first instance and one appellate that the premises was

reasonably required by the landlord was to be given weight by the court.

Once again the court reiterated that the need of the landlord was to be

assessed on the date of institution of the proceeding, relying on Gaya

Prasad Vs. Pradeep Srivastava reported in (2001) 2 SCC 604.

Therefore, the legal principle to be deduced from these decisions is that

ordinarily the date for ascertaining the reasonableness of the

requirement of the landlord is the date of institution of the suit. There is

much logic in this view. Both the parties are required, while getting the

suit ready for hearing to exchange pleadings to discover documents and

to produce the relevant evidence to prove the case. In a case where the

premises is claimed by the landlord on the basis of reasonable

requirement, during progress of the suit or the appeal from the decree,

the factors for determining the reasonable requirement like the

requirement itself, reasonableness of the requirement, the availability of

alternative accommodation suitable to the landlord may change from

time to time. It would cause the greatest inconvenience to the plaintiff if

on every such small change, he had to amend the pleadings, introduce

new documents and lead fresh evidence. The same is also true for the

defendant. It would cause great hardship to the plaintiff and delay the

appeal indefinitely. Therefore, ordinarily the date for determining

reasonable requirement and availability of reasonably suitable

accommodation should be the date of institution of the suit. In a rare

case where the change in requirement or in the availability of suitable

accommodation is so great in its impact on the nature of the suit, so as

to negate the case of the landlord, the court for the ends of justice will

allow additional evidence to be produced.

Even if the plaintiff had reclaimed one room from Tulsi Shaw and had

later died, in my opinion, it would not in any significant manner change

the reasonable requirement of the demised premises as held by the

learned courts below.

The High Court on second appeal will not ordinarily interfere with the

findings of fact arrived at up to the first appellate stage. Those findings of

fact will be treated as final, especially so when there are concurrent

findings by the first court and the first appellate court. Even if the

reappraisal of the facts and evidence would result in a different finding,

the High Court would not embark on that exercise. (See Pakeerappa Rai

vs. Seethamma Hengsu and Ors. reported in (2001) 9 SCC 521. See

Prativa Devi (Smt) vs. T. V. Krishnan reported in (1996) 5 SCC 353.)

However, if any finding of fact is based on no evidence or in gross

disregard of evidence or is so unreasonable, irrational or absurd that no

reasonable person could have come to that decision, the decision itself

would be termed as perverse, thereby giving rise to a substantial

question of law.

On consideration of the reasons given by the court, I am of the opinion

that a very proper analysis has been made by both the learned courts

below of the evidence before it. Very rightly, they have come to the

conclusion that the demised premises is reasonably required by the

respondents. There is no iota of perversity in either of the two judgments

and decree.

This appeal is deemed to have been admitted by us on the above

question of reasonable requirement. The department is directed to

register the appeal accordingly. It is also heard out on the above question

dispensing with all formalities.

For the reasons given above, we dismiss the appeal. However, taking into

account the forceful submissions made by Mr. Gautam Chakraborty for

the appellants, we grant the appellants time upto 29th February, 2024 to

vacate the premises. Upto 29th February, 2024 the respondents shall not

proceed with execution of the impugned decree. If the appellants do not

vacate the premises by 29th February, 2024, the respondents shall be

free to proceed with execution of the impugned decree as well as take

steps against them in the contempt jurisdiction of our court. Their claim

for occupation charges or mesne profits during the period prior to

vacation of the premises by the appellants is kept open.

Certified photocopy of this order, if applied for, be supplied to the parties

upon compliance with all requisite formalities. Pending application being

CAN 1 of 2019 (Old CAN 2479 of 2019) is also disposed of.

I agree.

(BISWAROOP CHOWDHURY, J.)                              (I. P. MUKERJI, J.)





               IN THE HIGH COURT AT CALCUTTA
                  Civil Appellate Jurisdiction
                         Appellate Side

Present :-    Hon'ble Mr. Justice I. P. Mukerji
              Hon'ble Mr. Justice Biswaroop Chowdhury

                              SAT 39 of 2019

                          Jayanti Mali & Ors.
                                      Vs.
                   Jaganath Proshad Singh & Ors.



   Later (09.03.2023)

Although the Bar has passed a resolution not to attend the Court,

today, we have delivered the judgment. This is for the reason that

there is no scope for the appellants to ask for stay of operation of

our judgment and decree as we have given them time to vacate the

premises by February, 2024. Within such time they are at liberty to

approach a higher forum.

I agree.

  (BISWAROOP CHOWDHURY, J.)                        (I. P. MUKERJI, J.)