Bibhuti Bhusan De vs Kshettra Gopal Datta

Bose, J.—This is a suit for ejectment. The Plaintiff is the owner of premises No. 40, Baghbazar Street, Calcutta. The Defendant held a portion of premises No. 40, Baghbazar Street consisting of 5 bed-rooms, on the first floor and one kitchen on the ground floor of the premises as a monthly tenant at a rent of Rs. 37 per month. The Plaintiff served a notice to quit, dated January 31, 1949, on the Defendant calling upon the Defendant to vacate the portion in his occupation at the expiry of the month of February, 1949. The Defendant did not vacate the premises and is still in occupation of the same. The Plaintiff has set out in the plaint alternative grounds on which he relied for obtaining decree for possession against the Defendant, who claims the benefit of West Bengal Premises Rent Control Act, 1948, but at the hearing the learned Counsel for the Plaintiff stated that he relied only on the ground that his client bona fide requires the premises in suit for his own occupation.

Accordingly the only issue raised in this case is--

Does the Plaintiff bona fide require the portion of the premises in suit in occupation of the Defendant for his own use and occupation?

In the plaint as originally filed the words "bona fide" was not there and on objection being raised by the learned Counsel for the Defendant as to this defect in the pleading the learned Counsel for the Plaintiff asked for amendment of the plaint by inserting the words "bona fide" before the word "require" in paragraph 2 of the plaint.

I allowed the amendment on condition that the Plaintiff will pay Rs. 150 to the Defendant as a condition for this amendment being allowed. The attorney for the Plaintiff has given an undertaking to make the necessary amendment in the body of the plaint.

The Plaintiff has given evidence. He states that he had his dwelling house consisting of twenty rooms at No. 50, Earn Kanta Basu Street, Calcutta. This house was acquired by the Calcutta Improvement Trust and he was paid compensation for such acquisition. With the compensation money he purchased premises No. 40, Baghbazar Street. When the Plaintiff purchased the premises, the Defendant along with other tenants was in occupation of the premises. The Plaintiff further states that his object in purchasing this premises was to have a house which would accommodate him and the members of his family for the purpose of their residence and would also provide him with suitable accommodation for carrying on his business as a sweetmeat dealer. At the present moment he is residing with his family, which includes a number of dependants, at 31, Nivedita Lane, Calcutta, but his sweetmeat business is being carried on at 181 and 182, Upper Chitpore Road, which is a rented house. It appears that this premises No. 31, Nivedita Lane, belongs to and stands in the name of the Plaintiff''s wife, Shailabala Dasi. It has got ten bed-rooms, a dining hall and stores combined and a kitchen. The Plaintiff with his family members has been living in this house for the last two years or so. But the Plaintiff states that this house cannot accommodate comfortably all the persons who live and mess with him or who want to live and mess with him. He has five employees in the sweetmeat business who have to work in the shop till late at night and it is necessary to provide them with sleeping accommodation at night. At present they are being accommodated in the sweetmeat shop which is rented and also in another rented room. It is not difficult to appreciate, having regard to the condition of labour in the present day, that to provide accommodation to servants employed in a business is a necessity. It is true that the Plaintiff had been carrying on his business at 181 and. 182, Upper Chitpore Road for the last twenty-six years, but there is no reason why he should stick to that place throughout his life. He has purchased a house where, with necessary structural alterations being made, he can conveniently accommodate his business, the employees of his business and also all the members of his family and those who live and mess with him. There is no reason why he should be forced to continue his business in a rented house at the mercy of a landlord when he can carry on the business in his own house without apprehension of any interference by a landlord and without having to pay rent to anybody.

It has been argued that, in the long correspondence that passed between the Plaintiff and the Defendant prior to the notice to quit, dated January 31, 1949, it was not suggested that the Plaintiff required the premises for his own occupation. It is, however, clear that the Plaintiff was repeatedly asking his tenants to vacate the premises. The Plaintiff''s evidence is that he was not sure till about the time that he served the notice to quit whether he would get materials and the sanction of the-Corporation to make necessary alterations to premises No. 40, Baghbazar Street, in order to make it suitable for the purpose of residence of all the members of his family and also for the purpose of his business and so he could not definitely assert that he required the premises for his own occupation. But, as soon as he was sure of his grounds, he communicated his intention or object definitely to the Defendant. It is in evidence that the Corporation has sanctioned his plan of the proposed alterations and the Plaintiff has paid Rs. 1,539-8 as encroachment-fees to the Corporation. The Plaintiff states that he has procured twenty-five bags of cement and has also procured wooden posts. It is in evidence that the Defendant is causing obstruction to the Plaintiff in his attempt to make preparations or arrangements for starting the work of the proposed alteration and improvement.

It is also in evidence that the house No. 31, Nivedita Lane, is under an agreement for sale and Rs. 2,001 has been paid by the purchaser by way of earnest money. The draft conveyance-has been prepared by the purchaser''s solicitor and approved by the vendor''s solicitor. The purchaser has to be put in vacant-possession. It is thus clear that besides this premises in suit, being No. 40, Baghbazar Street, Calcutta, there will be no other house available to the Plaintiff for the purpose of his residence and for carrying on his business. It has been contended by the learned Counsel for the Defendant that the expression "for his "own occupation" u/s 11(2), prov., Clause (f) of the West Bengal Premises Kent Control Act should be interpreted to mean-personal occupation by the landlord or at the most occupation by his immediate relations such as wife, son, daughter-in-law and grand-children and if that interpretation is accepted by the Court, then there is ample accommodation available in the premises in suit for the purpose of the residence of such members of the Plaintiff''s family without disturbing or interfering in any way with the possession of the Defendant in the portion in his occupation. To my mind, to limit the extent of a family to these immediate relations, will be putting a very narrow construction on the word "family" as the term is understood in Hindu conception. In Hindu society, a person has to maintain and live with a large number of dependants, who are regarded as part and parcel of his family. The Plaintiff''s evidence is that his family including the dependants consist of his wife, his son, son''s wife, children of his son, his sister, his nephews, his neices, the widow of his elder brother and the widow of his younger brother and so on. He states that, if the five employees of his business and three domestic servants who have also to be provided with accommodation, are taken into consideration then the total number of persons who will have to be accommodated in the house would be twenty-seven heads at least if not more. These dependants have lived with him and messed with him for years past. The Plaintiff cannot throw, them out and himself come and stay in the premises in the suit with only his wife, son, daughter-in-law and grand-children. Moreover, in my view, the words "own occupation" should be interpreted to include all persons who are dependants upon the landlord as has been done in construing Section 11 of the Bombay Rent Restriction Act: see Institute of Radio Technology v. Pandurang Baburao ILR (1945) Bom. 1038. Further, in my view, occupation of the portion of the premises in the suit for the purpose of the business of the Plaintiff must be deemed to be Plaintiff''s own occupation within the meaning of Clause (f) of the prov. to Section 11 of West Bengal Premises Rent Control Act, 1948. In Balmakund Khatry Vs. Hari Narain and Others, it was held that occupation for the purpose of running a cinema house, although the landlords were not actually residing in the premises, was to be deemed as occupation by the landlords themselves within the meaning of Sub-section (3) of Section 11 of Bihar Building (Lease, Rent and Eviction) Control Act of 1947.

It is also pointed out by the learned Counsel for the Defendant that the agreement for sale of premises No. 31, Nivedita Lane is dated May 14, 1949 and the learned Counsel contends that the fact that the agreement for sale was entered into after serving the notice to quit shows want of bona fides on the part of the Plaintiff in requiring the premises for his occupation. But the Plaintiff, in his evidence, explains this fact as due to disputes pending in the High Court relating to the title to this premises. It was after the dispute was decided and the cloud on the title was removed that the agreement for sale was entered into.

The premises No. 40, Baghbazar Street, in its present condition, is, according to the Plaintiff, unsuitable for the accommodation of all the persons whom he has to provide with accommodation. There are at present twenty-two rooms in premises No. 40, Baghbazar Street, including the bath-rooms and the kitchens, of which eight rooms are in the possession of the Defendant and another tenant, Ram Kanta Biswas and four rooms are uninhabitable at the present moment.

No doubt the Plaintiff has in his evidence contradicted himself on certain points, but I see no reason to discard his testimony. I accept his evidence.

The learned Counsel for the Defendant has drawn my attention to certain observations of His lordship the Chief Justice (Harries C.J.) in the case of Bhutan Singh v. Ganendra Kumar Roy Chowdhury (1949) 84 C.L.J. 157, but each case must be decided on its particular facts and I am satisfied upon the facts and circumstances of the case before me that the Plaintiff bona fide requires the portion of premises No. 40, Baghbazar Street which is in the occupation of the Defendant for his own occupation.

There will, therefore, be a decree for possession of the portion of the premises No. 40, Baghbazar Street, Calcutta, in the occupation of the Defendant for mesne profits at the rate of Rs. 37 per month from March 1, 1949, till possession is delivered and for costs on scale No. 2. This decree is not to be executed for two months.