Anil Chandra Dutta vs Niranjan Sarkar

P.N. Mookehjee, J.—In this Second Appeal which arises out of a suit for ejectment, the only point that requiree consideration is whether the Plaintiff-landlord''s plea of reasonable requirement of the suit premises for his own use and occupation has been made out u/s 12(1)(h) of the Rent Control Act of 1950. Both the courts below have accepted the Plaintiff''s case and granted him a decree for ejectment. The propriety of this decision is challenged by the tenant-Appellant in the present appeal.

The Plaintiff is a lawyer and he has his wife, one son (reading in the Sibpore Engineering College and residing in the College Hostel) and three daughters, one of whom is married, and a widowed sister. He has also a cook and a servant. The Defendant is a bachelor and, about the size of his family, the only evidence is that it consists of seven members and a servant. The Defendant serves under the Eastern Railway.

There was some dispute between the parties as to whether, in assessing the Plaintiff''s requirement, his son, married daughter and widowed sister should be counted as members of his family. But, on the materials before me, I am convinced that the son and the widowed sister should be taken as such members while the married daughter may be left out of consideration for this purpose. The widowed sister appears to live with the Plaintiff as a member of his family and the son, although he is a resident student in the B.E. College, comes over to his parents during the week-end. I cannot, therefore, leave them out in judging the Plaintiff''s need of accomodation. I am also prepared, on the evidence before me, although that is not very satisfactory, to accept the Defendant''s statement that his family consists of seven members and a servant.

The disputed premises (No. 36/1, Kankulia Road) now in the Defendant''s occupation, contain sufficient accommodation for one or other of the two families, the Plaintiff''s or the Defendant''s, but it cannot accommodate both. The accommodation at the Plaintiff''s disposal at his ancestral house at No. 5/2. Kankulia Road (where he is now residing) under trie final partition decree which has been made in the suit between the different co-sharers is admittedly insufficient for his needs and it is also extremely inconvenient for his legitimate purpose. It consists of two rooms-and one of these again is just a C.I. shed,-in the ground floor, not quite habitable, and one room in the first floor and this portion in his allotment is in the interior or back portion of the house and approachable only by a narrow and rather long passage.

Mr. Banerjee, appearing for the Defendant-Appellant, does not seriously dispute the Plaintiff''s need for further accommodation or a convenient ''chamber'' for his professional work. But he contends that this additional accommodation and/or the ''chamber'' may be provided to him out of the disputed premises (No. 36/1, Kankulia Road) and the Defendant is willing to make some sacrifice by giving up the necessary portion from the said premises in his occupation, and this, he says, will meet the requirements of both the parties and is quite feasible and practicable as the disputed premises (36/1, Kankulia Road) and the Plaintiff''s ancestral house (5/2, Kankulia Road) are just a little distance apart. He has, in this connection, drawn my particular attention to the proviso to Section 12(1)(h) of the Act and he has submitted that this is a fit case for taking action under the said proviso. He has argued further that the best of comparative advantage and disadvantage, which is imperative under the -Explanation to the section, will not justify the eviction of the Defendant-Appellant.

I may point out at the outset that, except under the proviso, no question of partial eviction arises under the Act. If the Plaintiff fails under the test of comparative advantages and disadvantages, as laid down in the Explanation to the section, his suit would fail as a whole; if he succeeds his suit would succeed as a whole,-subject, of course, to the proviso,-no matter that his actual requirement may not extend to the whole of the disputed premises. Of course, the extent of his requirement of accommodation or additional accommodation will be a relevant factor for consideration in applying the test of comparative advantages or disadvantages, but, if it is sufficient for that purpose, and, if, in spite of its falling short of the entire disputed premises, the answer to that test be in his favour, the Plaintiff is entitled to get a decree for possession of the entire premises unless the proviso stands in his way. Mr. Banerjee''s submission for partial eviction would, therefore, properly come under the proviso although, in applying the test of comparative advantages and disadvantages, the extent of the Plaintiff''s requirement of additional accommodation as indicated by him will also be borne in mind.

Section 12(1)(h) really consists of three parts, which, though they cannot be kept in water-tight compartments, are capable of and deserve separate consideration. The ultimate conclusion no doubt must be based on the cumulative effect of all of them. But that does not in any way affect the position that they may have to be, and, indeed, they ought to be,-separately considered in the first instance. That is the practical view which I take of this rather delicate, difficult and intriguing section. The Court has first to see whether, apart from the Explanation, the Plaintiff has made out a case of reasonable requirement. If here the Plaintiff fails, he will not be entitled to a decree u/s 12(1)(b) and no question of the Explanation or of the proviso will arise. If. however, the Plaintiff succeeds in making out a case of reasonable requirement apart from the Explanation, the court will have to consider the test of comparative advantages and disadvantages as laid down in the said Explanation. If here the Plaintiff fails, he will be refused a decree for ejectment u/s 12(1)(h). In case the Plaintiff succeeds in this test, the proviso may have to be taken into consideration and, there the question of partial eviction will arise provided, of course, the tenant agrees to it and the Plaintiff''s reasonable requirement can be met thereby. I am also inclined to think, as held by me in Sardar Singh v. Bimal Krishna Basu and Ors. (1954) 59 C.W.N. 430, that this proviso will have to be considered by the Court (be it the original or the appellate court) once it finds that the Plaintiff''s requirement will be satisfied by partial eviction and the Defendant agrees to it provided only that such consideration has not become barred by reason of the Defendant''s conduct or otherwise as indicated in my said judgment.

In the light of what I have said above, I shall now examine the position of the parties before me. There can be no doubt that the Plaintiff in the present case has made out a case of reasonable requirement apart from the Explanation, and, indeed, there is not much dispute in this point. I am also unable to accept Mr. Banerjee''s submission that the Plaintiff must fail under the Explanation. In the circumstances of this case, the Plaintiff''s disadvantages, if he is unable to get additional accommodation, will, in my opinion, far outweigh the disadvantages of the Defendant if he is evicted from the disputed premises provided, of course, he is given sufficient time for finding out an alternative accommodation. This time element is a relevant factor under the Explanation and I have often found it useful in solving problems arising thereund (sic) Defendant is a service-holder and, generally speaking (sic) particular need of any articular locality. The pla(sic) other hand, is a lawyer and a professional man an (sic) driven to seek accommodation, particularly his chamber, which will also in the present case serve as his drawing room, in other localities. This context, although it may not be overriding, cannot be properly forgotten in this case. I would, therefore, hold, in agreement with the two courts below, that the Plaintiff had made out a case of reasonable requirement u/s 12(1)(h) read with its Explanation, and only the question under the proviso now remains to be considered.

On this question of the proviso, the suggestion of Mr. Banerjee to allot some portion of the disputed premises to the Plaintiff to meet his requirement for additional accommodation does not appeal to me in the circumstances of this case. This additional accommodation will obviously include the Plaintiff''s chamber which, as I have already said, will also be his drawing room. I do not think that, having regard to the location of the two properties, (No. 5/2 and No. 36/1 Kankulia Road), even though they may not be quite far from each other, and the nature of the Plaintiff''s requirement, it will be proper or practicable to accept Mr. Banerjee''s suggestion. Admittedly also, the two families of the Plaintiff and the Defendant cannot be accommodated in the disputed premises. The proviso, therefore, cannot assist the Appellant.

I would only add that, before the two courts below, many irrelevant matters, touching amongst others, previous litigations between the parties and strained relations between them were introduced, but I have purposely refrained from referring to those irrelevant matters. Mr. Banerjee with his usual fairness conceded that those "historical episodes" should be left out of consideration and he, as a matter of fact did not purport to rely upon them, and, indeed, one of his main submissions, has been that the lower appellate court paid too much attention to these irrelevant matters and devoted a considerable part of its judgment to a discussion of the same.

In the result, this appeal must fail and the decree for eviction, passed by the two courts below should be affirmed subject to some reasonable time being given to the Defendant to vacate the suit premises and find out an alternative accommodation. In the facts and circumstances of this case, and in view of the prayer, eventually made by the Appellant through his le(sic) advocate, I am inclined to grant the Defendant (sic) one year''s time for the purpose and I think that (sic) sufficient, and, accordingly, the Appellant is given (sic) end of June, 1956, to vacate the suit premises, as (sic) his learned advocate, on condition that he goes on depositing in the trial court to the credit of the Plaintiff-Respondent mesne profits at the rate of Rs. 75 per month, month by month regularly within the 15th of the next succeeding month according to the English calendar, the first of such deposits to be made for the month of June, 1955, by the 15th of July next. In default of any of these deposits, this decree for ejectment will become executable at once.

Subject to the above provision for time, the appeal is dismissed. There will be no order for costs.

Leave to appeal under Clause 15 of the Letters Petent is asked for and. it is refused.