Arun Sekhar Banerjee vs Pratima Rakshit (Smt.)

Arun Kumar Dutta, J.—This Appeal is directed against the judgment and decree of dismissal dated December 20, 1991 passed by the learned Additional'' District Judge, 8th Court of 24-Parganas (South) at Alipore, in Title Appeal No. 89 of 1991 before him, reversing the judgment and decree passed by the learned Munsif, 2nd Additional Court at Alipore, on January 5, 1991 in Title Suit No. 106 of 1988 before him.

The Plaintiff-landlord owner of the suit premises (hereinafter referred to as Plaintiff) had filed the relevant suit for recovery of possession of the suit premises, described and detailed in the Schedule to the plaint, after evicting the Defendant-tenant-Respondent (hereinafter referred to as Defendant) there from on the grounds made out therein. It is contended by the Plaintiff that the Defendant was a tenant under him in respect of the suit room at a monthly rental of Rs. 80.00 only, payable according to English Calendar month. The Defendant had defaulted in payment of rents in respect thereof since the month of May, 1982. The Plaintiff further contends that he reasonably requires the suit premises, the room in suit, for his own use and occupation and for use and occupation by the members of his family in view of the composition of his family, his requirements, and the accommodation he is presently having in the building-in question. It is also alleged that the Defendant had caused nuisance and annoyance to him. He had, accordingly, determined the tenancy of the Defendant calling upon her to vacate the suit premises in terms of the eviction notice served upon her. The Defendant having failed and neglected to vacate the suit premises in terms thereof, he has been constrained to file the suit for her eviction there from on the aforesaid grounds in terms of the pleas taken in the plaint.

The Defendant had contested the suit denying the allegations made in the plaint and contending, inter alia, that her tenancy presently consists not only of the room-in-suit but also a space in the back portion of the premises at a monthly rent of Rs. 100.00 only. The Plaintiff''s case of default in payment of rent by her, his reasonable requirement, and nuisance and annoyance had also been denied by the Defendant.

The learned Munsif, on trial, had decreed the suit only on the ground of default on the part of the Defendant in paying rents in respect of the suit premises, discarding the Plaintiff''s case of reasonable requirement. On appeal and cross-appeal filed! by both the parties there against, the Lower Appellate Court, by passing the impugned judgment and order, had allowed the appeal filed by the Defendant-tenant and had dismissed the cross-appeal filed by the Plaintiff-landlord against the finding of the trial Court on his plea regarding reasonable requirement, for the reasons recorded therein. The lower Appellate Court, while holding that the learned Munsif was not justified in decreeing the suit on the ground of default, had also decided the question of extent of tenancy and the rate of rent in respect thereof raised by the Defendant, not decided by the learned Munsif, for the reasons recorded by it in the impugned judgment and order. The Court below had held that the tenancy in question comprises the room-in-suit only at a monthly rental of Rs. 80.00 only, as contended by the Plaintiff.

As to the ground of default in payment of rent by the Defendant it is contended by the Plaintiff that she (former) had defaulted in payment of rents from the month of May, 1982. The Defendant, per contra, sought to contend that she had been depositing rent with the Rent Controller at Calcutta from the month of May, 1982 and that she is not a defaulter in payment of rents, as alleged by the Plaintiff. It appears from the record that the learned Munsif, while disposing of the Defendant''s relevant application u/s 17(2), read with Section 17(2A) of the West Bengal Premises Tenancy Act, by his order dated January 18, 1989 had held, on perusal and consideration of the Deposit Challans, that the Defendant�s not a defaulter in payment of rent. But while deciding the issue No. 4 on trial and disposing of the suit by his judgment and order dated January 5, 1991 the learned Munsif had held that there is no challan on record showing deposit of current rent, apart from the arrear rents, and he had accordingly answered the said issue against the Defendant and had decreed the suit on the ground of default in payment of rent by the Defendant. The Lower Appellate Court, on appeal there against has, on the other hand, held that it appears from the challans filed by the Defendant that she had all along paid current rent under the provisions of Section 17(1) of the aforesaid Act within the statutory period of limitation. The learned Judge has, accordingly, set aside the finding of the trial Court on the issue No. 4 and has held that the learned Munsif was not justified in decreeing the suit on the ground of default in payment of rent by the Defendant. On my scrutiny of the challans on record, I, however, find that the Defendant had deposited rents in Court at the rate of Rs. 100.00 per month upto the month of September, 1990. There is no challan on record showing deposit of rent thereafter for the months of October, November and December, 1990. The record being, what it is, the learned Munsif clearly, therefore, appears to have been justified in holding that there is no challan showing deposit of current rent by the Defendant. He clearly, therefore, appeals to have rightly answered the issue No. 4 against the Defendant. With things as they are on record, the lower Appellate Court clearly appears to have gone wrong in holding that it appears from the challans filed by the Defendant that she had all along paid current rent under the provisions of Section 17(1) of the said Act within the statutory period of limitation, even though there is no challan on record to show deposit of rents by the Defendant for the months of October, November and December, 1990, indicated above. That apart, it would oddly appear from the Xerox copy of the information slip issued by the lower Appellate Court, produced by the learned Advocate for the Appellant during the hearing of the instant appeal, that there is no challan on record showing deposit of rents by the Defendant from the month of May, 1982 till ''the month of January, 1984. That being so, the learned Munsif was perfectly justified in decreeing the suit on the ground of default in payment of rent by the Defendant, and the lower Appellate Court had gone grievously wrong in setting aside the said finding of the trial Court on issue No. 4, the way it did.

As regards the Plaintiff''s case of reasonable requirement, negatived by the trial Court, the lower Appellate Court, while considering the cross-appeal filed by him, has held that he (Plaintiff) has failed to prove his case of reasonable requirement by cogent and reliable evidence, further holding that the other spaces in his occupation in the building in question can be profitably used by his (Plaintiff) in order to increase accommodation further in the suit house, if necessary.

Aggrieved by the aforesaid findings of the lower Appellate Court, the Plaintiff has preferred the present appeal on the grounds made out in the memo, of Appeal.

The point for determination here before this Court is how far the Court below was justified in passing the impugned judgment and order, the way it did.

The Plaintiff''s family, undeniably, consists of himself, his wife, three grown-up daughters and a son, all of whom are stated to be students. The Plaintiff has further contended that his widowed-mother-in-law, who generally lives at Bilaspur in the State of Madhya Pradesh, often visits Calcutta for her treatment for the various ailments she is suffering for a long time, and stays with the Plaintiff, whom he is required to accommodate. He has thus contended in the plaint that he requires one bed room for himself and his wife, one bed room for his son, two bed rooms for his three grownup daughters, one reading room, one dining room-cum-store room, one drawing room, one guest room, one Thakur ghar, apart from a kitchen, two-bed rooms and one privy.

It appears from the record that a Commissioner for local inspection was taken out at the instance of the Plaintiff who, on local inspection, had found the Plaintiff (vide his Report, being Exhibit-9) to be in occupation of one room, one small space, one bath and privy and a small open terrace in the third floor; two rooms, a kitchen and a verandah on the second floor ; and one room, a small space and a bath-cum-privy in the first floor of the premises in question. Another commission for local inspection had also been taken out at the instance of the Defendant, who, on local inspection, had also found the Plaintiff to be in occupation of a small meter room in the ground floor of the suit house, which previously used to be occupied by a tenant ; held by the Court below to be a habitable room. In view of the aforesaid two Reports of the learned Advocate Commissioners the Court below has held that ''besides sufficient other spaces as well as bath, privies and kitchen, the Plaintiff is in possession of 5 rooms in the suit house''. The Court below went on to add that even if the Plaintiff''s case that all his children are students is accepted, one room can be provided for the Plaintiff and his wife, one room for his son, two rooms for his three grown up daughters, if not one, another room as sitting room for the members of the family, and the ''other spaces can be profitably used by the Plaintiff in order to increase accommodation further in the suit house, if necessary''. The Court below had further held that the requirement for the Plaintiff''s widowed-mother-in-law had been rightly rejected by the learned Munsif. Curiously, however, the Court below even after accepting the Plaintiff''s case that all his four children are students did not consider it fit and proper to provide any study room for any of them, either jointly or singly. The Court below did neither consider it fit and proper to provide any dining-cum-store room for use by the Plaintiff and the members of his family. The Court below seems to be of the view that four bed rooms and one sitting room only would serve the entire residential purpose of the Plaintiff and his family members, who would not be required to dine and the four children of the Plaintiff''s family though accepted to be students, would not be required to study, which could hardly be sustained for the reasons I shall presently discuss.

The Courts of Law have consistently held that the use of the expression ''reasonably require connotes ''genuine present need'' and not were desire or wish on the part of the landlord, who is also the owner, to occupy the premises let out by him. But it is unnecessary for the landlord to prove absolute necessity. While determining the issue of reasonableness of the landlord''s requirement, the Courts of Law have always considered whether the landlord has need or necessity for occupying the premises let out by him in the light of the facts and circumstances of each particular case.

Undoubtedly, in deciding the question of reasonableness or otherwise of the landlord''s requirement of a" premises for his own use and occupation, among other things, the Court is bound to decide whether the present accommodation in Plaintiff landlord''s occupation is reasonably suitable. The Courts have always considered whether his existing accommodation is appropriate or proper for him, i.e., whether or not it satisfies the Plaintiff''s requirements. Therefore, even before the old Clause (f) was deleted and new Clause (ff) was inserted in Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act, 1956, the courts of law have taken into consideration the existing accommodation of the landlord in judging the reasonableness or otherwise of the Plaintiff''s requirement for his own use and occupation of a premises Rajkumari Dutta Vs. Ashalata Debi and Others, The new Clause (ff) by expressly mentioning the words ''reasonably suitable accommodation'' in Clause (ff) has really made explicit what was implicit in previous Clause (f) of Section 13(1) of the Premises Tenancy Act. Obviously, when a landlord is already in possession of any reasonably suitable accommodation, his claim of reasonable requirement u/s 13(1) (ff) must fail. The Courts have to consider whether the Plaintiff''s existing accommodation is suitable while determining the Plaintiff''s requirement for his own use and occupation.

As held by a Division Bench of this Court in Sonabati Devi v. Achyutanand Dey 87 C.W.N 278 with which I am incomplete agreement, it would be better not to lay down any a priori proposition with regard to the meaning of the expressions ''reasonably required'' and ''reasonably suitable accommodation'' and it ought to be left to the Courts to consider and weigh the evidence adduced in each case and to decide the question of landlord''s reasonable requirement in accordance with law. Any as right-jacket statement of law on the above points may leed to injustice and might defeat the very object of spacting Section 13(1)(ff) of the West Bengal Premises Tenancy Act. In order to decide the question of ''reasonably suitable alternative accommodation'', the. Court might consider both the extent and the character of the Plaintiff''s existing accommodation, convenience, comfort, desirability etc. (vide moggary on Flent Control 12th Ed''n., Vol. I pages 303-304). It is a settled law that question of reasonable requirement is primarily a question of fact. Each case has to be decided on its own facts. The statute nowhere uses the expression ''family''. The requirement for the purpose of evicting a tenant is, for the landlord''s ''own occupation''. Time and again the'' different High Courts held that the concept of a family must be given a wider meaning. In Anil v, Niranjan59 C.W.N. 989 apart from requirement of a widowed sister, a son who. is a resident student of Shibpur College visiting his parents during weekend, was taken into consideration in judging the landlord''s own requirement. The Supreme Court while deciding a case under the Madras Act (XXV of 1955) in S.N. Sundalaimuthu Chettiar Vs. Palaniyandavan, interpreted the landlord''s own requirement very liberally where it went so far as to hold that a son-in-law could also be regarded as a member of the family. The Gujarat High Court in the case of Mohanlal v. Smt. Punjitan 1976 R.C.J. 326 had followed the Supreme Court decision so as to hold that, a person could also be properly regarded, as being a member of his wife''s family, and not merely of his father''s family. In the decision of Mohammad llliyas v. Syed Ali Nawab AIR 1979 N.O.C. 194 the Lucknow Bench of the Allahabad High Court held that in overall assessment of the landlord''s need, the fact that married daughter stayed with him might also be considered. The Delhi High Court in the case of Ram Parkash Saroj v. Mohinder Singh AIR 1982 N.O.C. 50 (Del) interpreted the expression ''residence for himself and held, inter alia, that it could not mean or imply the residence for the landlord ''living in isolation''. In the said case it was held, inter alia, that the requirement of a daughter-in-law or a married daughter who visits the landlord could be legally taken into consideration since he was to provide accommodation for them.

In the background of the aforesaid decisions another Division Bench of this Court in Sm. Parimal Bala Roy and Others Vs. Santosh Kumar Bhattacharya, has held that where it appears that the son-in-law of the landlord lived in a rented house and a married daughter was his only child, it is nothing unnatural or improbable that she might come and stay with her father and mother on different occasions and for that one room would indeed be required.

Similar view has been taken by another Division Bench of this Court in Himangshu Bikas Das v. Ramendra Mohan Dutta 1991 (1) C.L.J. 399 holding that under the West Bengal Premises Tenancy Act, 1956 the landlord can get an order of eviction if he can satisfy the Court that the premises is reasonably required for his own use and occupation and his requirement does not mean requirement only for his personal use, but the requirement of his family members is also to be taken into account. The concept of a family must be given a wider meaning, and where it appears that the son-in-law of the landlord lived in a rented house and the married daughter was his only child, it is nothing unnatural or improbable that she might come and stay with her father and grand-mother on different occasions and for that one room would indeed be required. The term ''family'' must always be liberally and broadly construed so as to include near relations of the head of the family.

In view of the aforesaid decisions the Plaintiff''s widowed mother-in-law, being his near relation, who is the head of the family, should be deemed to be a member of his family, in the facts and circumstances herein.

Having regard to the composition of the Plaintiff''s family and the aforesaid decisions, which cannot be different from, I feel that apart from the four bed rooms allowed by the Court below, one dining-cum-drawing room (not an exclusive ''sitting room'' allowed by the Court below), and one room to be used as study room for the Plaintiff''s children-cum-guest room to accommodate his widowed mother-in-law, who is required to visit Calcutta often for her medical treatment and is required to be accommodated by the Plaintiff, should also have been considered by the Court below to be reasonably required by the Plaintiff for his own use and occupation and for use and occupation by the members of his family. The meter room in the ground floor might be considered to be suitable for the latter purpose. The Court below, to my judgment, has, therefore, gone grievously wrong in discarding the Plaintiff''s case of requirement of a dining-cum-drawing room and a study-cum-guest room, in the aforesaid circumstances. The Plaintiff''s requirement of a Thakur Ghar, a Hindu, as he is, might be met by use of the covered space either on the third floor or on the first floor of the building in question, as appearing from the Exhibit-9. Having regard to the composition of the Plaintiff''s family and the accommodation presently available to him, as discussed above, his case of reasonable requirement of the room-in-suit could not clearly be discarded either.

in view of the discussions above, the lower Appellate Court appears to have gone miserably astray in holding that the Plaintiff has failed to prove his case of reasonable requirement by cogent and reliable evidence and that the ''other spaces can be profitably used by the Plaintiff in order to increase accommodation further in the suit house, if necessary''. It is certainly not for the Court to suggest or advise a landlord as to how to meet his/her requirement and/or effect improvement in the premises-in-suit for the said purpose. The Court has to consider the landlord''s requirement with things and all requisite conditions, as they are. The Court below clearly, therefore, was not justified in dismissing the suit after allowing the Defendant''s appeal and rejecting the Plaintiff''s cross-appeal, the way it did. The impugned judgment and order passed by the Court below could hardly be sustained as such. The suit should thus succeed on both the grounds of default in payment of rent by the Defendant and reasonable requirement of the Plaintiff.

In the premises above, the appeal succeeds and be accordingly allowed. The impugned judgment and decree dated December 20, 1991 passed by the Court below be hereby set aside and those of the trial Court be restored on the additional ground of reasonable requirement. The suit, accordingly, stands decreed. The Plaintiff-Appellant do get a decree for recovery of possession of the suit premises after evicting -the Defendant/Respondent there from The Defendant/Respondent is, however, hereby allowed time till December 31, 1996 to vacate and deliver peaceful possession thereof in favour of the Plaintiff/Appellant. On her (former''s) failure to do so, he (the latter) shall recover possession thereof in execution according to law.

in the facts and circumstances of this matter i make no order as to costs of this hearing.