Jamal Aktar vs Rahiman Bibi

Joytosh Banerjee, J.—This appeal from the appellate decree is directed against the judgment of Sri S.K. Nandi, 1st Additional District Judge, Howrah dated November 27, 1996 passed in T.A. No. 63/95 whereby he dismissed the appeal and confirmed the judgment dated January 31, 1995 passed by Munsif, 2nd Court, Howrah in T.S. No. 5/88 of his court excepting the decision relating to issue No. 4 touching the question whether the Defendant/Appellant was a defaulter in payment of rent. The learned trial court in its judgment disposed of the issue by giving a decision in the line and order dated July 1.6, 1992 passed by the trial court in connection with a proceeding u/s 17(2) and (2A) of the West Bengal Premises Tenancy Act by holding that Defendant was a defaulter in payment of rent for January, 1988 and the Defendant was entitled to get the benefit u/s 17(4) of the West Bengal Premises Tenancy Act since it was a case of first default. That particular finding was set aside by the learned appellate court answered the issue in connection with alleged default in negative.

In short, the facts leading to the filing of the instant appeal are as follows:

The wife and children of Sk. Mohammad Hossain filed the suit against the Defendant/tenant praying for his eviction from the tenanted portion comprising three rooms in premises No. 24/1, Danesh Molla Lane alleging, inter alia, that the Defendant/Appellant was a tenant under them in respect of the suit premises at a monthly rental of Rs. 150.00 payable according to English calendar month and the Defendant defaulted in payment of rent since January, 1974. It was also alleged that the Defendant caused damage to the tenanted premises by certain acts contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and contrary to the purpose for which premises was let out the Defendant was running a business in such premises. It was also alleged that the Plaintiffs required the suit premises for their own use and occupation and also for addition and alteration as the same was old dilapidated condition. For all these reasons, the Plaintiffs/Respondents issued notice calling upon the Defendant/Appellant to vacate the suit premises on the expiry of July 1:987. Inspite of receipt of such notice, the Defendant/Appellant failed to vacate the suit premises on the expiry of such period. The Defendant/Respondent contested the suit by filing a written statement denying that he was a defaulter since January, 1974 and also denied that he committed any act contrary to the previsions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. It was alleged by the Defendant/ Appellant that the suit premises was taken on rent both for residential as well as for business purpose. He also denied that the Plaintiffs had any requirement for the suit premises and alleged that the accommodation available to the members of the Plaintiffs family was sufficient for them. The learned trial court decreed the suit holding, inter alia, that Defendant was guilty of using part of the suit premises for business purpose without the consent of the landlord and also that the Plaintiffs required the suit premises for their own use and occupation. The learned trial court at the same time held that the Plaintiff failed to prove the case for requirement of the suit premises for building and rebuilding. In appeal besides setting aside the finding on the issue of default as noted above, the learned appellate court below held that the Plaintiffs were the owners of the suit premises and they successfully proved the case of reasonable requirement for the suit premises, that while D.W.-1 in his evidence clearly admitted that he had been running a business in a portion of the suit premises since 1967, from the attending circumstances there was nothing on record to hold that the suit premises was let out for business purpose and also for residential purpose. With this findings, the learned appellate court below dismissed the appeal.

At the time of hearing of the appeal, the following question has been formulated as the substantial questions of law involved in the present appeal:

Whether in the instant appeal, the subsequent events, as pointed out through the Appellants application, overshadows the genuineness of the need of the Respondent in the facts and circumstances brought forward by such application.'' The aforesaid point along with an application for appropriate note of subsequent events during the pendency of the appeal before this Court have been taken up for hearing and I propose to dispose of the application along with the aforesaid appeal.

It is already seen that both the courts below reached at a concurrent finding regarding the reasonable requirement of the Plaintiff of the suit for the suit premises and both the courts below have arrived at a common conclusion that the Plaintiff is entitled to get a decree for eviction on the same ground as contemplated u/s 13(1)(ff) of the West Bengal Premises Tenancy Act. It is well settled that in exercise of the powers u/s 100 of the Code of Civil Procedure, the concurrent findings of the facts, howsoever, erroneous, cannot be interfered with. In the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, the Apex Court made the following observation, which clearly lays down the power of the High Court in connection with a second appeal and the relevant observation in Para. 4 of the reported judgment is as follows:

It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of fact howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section,.

Speaking about distinction between substantial question of law and the substantial question of fact/the Apex Court in that reported decision quoted an earlier decision of the said Court in Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., the following observation:

The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

The question here that is to say whether the Plaintiffs/ Respondent have got bona fide requirement for the suit premises cannot be reopened in view of the aforesaid decision of the Apex Court, but at the same time it should be pointed out that in a case of bona fide requirement of the landlord for the suit premises subsequent relevant events must be taken into consideration for the purpose of finally deciding the question of reasonable requirement. In other words, if the tenant can show even at the appellate stage any subsequent event which has the effect of disentitling the landlord from getting the decree for eviction, the appellate court has to consider the requirement of the landlord along With such subsequent event proved by the tenant at that appellate stage. But the question is how far that subsequent event should be considered at the time of hearing of the second appeal. This is more important when it is found that the suit for eviction was instituted in 1988 and the second appeal has been heard and is going to be disposed of in the year, 2002, meanwhile 14 years have passed. The Hon''ble Supreme Court considered the question in the case of Gaya Prasad Vs. Sh. Pradeep Srivastava, the observation of such court in Para. 10 is very relevant for this purpose and it runs as follows:

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. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our limitative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.

in the same judgment in Para. 13, the Hon''ble Court made the following relevant observation on the question of subsequent event:

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.

I have already given the indication that at the time of hearing of the appeal, the Appellant filed one application through C.A.N, No. 7136 of 2001 bringing some relevant subsequent events to the notice of the court for the purpose of consideration and that application is to be disposed of along with the appeal. Therefore, I am to look into the allegation raised in such petition. It has been alleged in Para. 4 of the application that during the pendency of the appeal before this Court, the Plaintiff/ Respondents constructed 4 more rooms in addition to their existing accommodation in the premises, which fully satisfied the need of the Plaintiff/Respondents. In their affidavit-in-opposition, the Respondents pointed out that during the long pendency of the litigation, the requirement of the Plaintiff/Respondents increased considerably and also alleged that the sons and daughter of Respondent No. 2 became teenagers. They require separate rooms. That apart Respondent No. 4 got married and the Respondent No. 5, marriage has been settled. Both Respondents 4 and 5 started two separate business in the suit house and for that purpose they require two office rooms. At the same time, the Respondent denied that there was any further construction as alleged by the Defendant/Appellant. It has been specifically stated that there is no scope for new construction in the suit holding because there is no vacant land available and for further construction prior approval or sanction from the Howrah Municipal Corporation is a must. In the affidavit-in-reply, the Defendant/Appellant tried to re-open the question of reasonable requirement of the Plaintiff/Respondents for the suit premises by pointing out that out of 6 sons and daughter as shown in the affidavit-in-opposition none attained majority and they were not of the age as stated in such affidavit and they do not require 5 rooms. The Defendant/Appellant also denied that Respondents No. 4 and 5 started two separate business and require two separate office rooms. The Defendant/Appellant merely denied the assertion that his allegation regarding the construction of 4 more rooms in addition to existing 9 rooms are false.

In this way, it transpires that through the petition, the Defendant/Appellant has wanted to allege that -through construction the Plaintiff/Respondents added 4 rooms which can satisfy their present need. The Plaintiff/Respondents on the other hand, has denied that allegation by pointing out that there was no space for further construction and further construction requires permission from the Howrah Municipal Corporation which was not taken. On consideration of all these affidavits filed by the parties I find that the Defendant/Appellant did not state the specific time when actually the 4 rooms have been, constructed. It has, only been alleged that those rooms were constructed by the Plaintiff/Respondents and through such added accommodation the Plaintiffs'' bona fide requirement would be satisfied through such addition. But I have got no reason to accept such allegation considering the specific assertion made by the Plaintiff/Respondents in their affidavit-in-opposition wherein they specifically stated why such an allegation would be improbable as there was no space and added that the further construction would require permission from the concerned Municipal Corporation. Regarding Defendant/Appellants further assertion as to the requirement I must say following the decision of the Apex Court in the case of Gay a Prasad v. Pradeep Shrivastava that the crucial date for deciding as to the bona fides of the requirement of the Plaintiff/ Respondents was the date when the suit for eviction was filed in the trial court and there is no subsequent event to overshadow the genuineness of the need which can completely eclipse the need of the Plaintiff/ Respondents. Therefore, I do not find any reason to interfere with the concurrent finding of both the courts below on this point.

It further transpires that by an order dated October 5, 2001 I took up the following question also as substantial question of law, ''Whether the Plaintiffs case is made out u/s 13(1)(h) is barred by limitation:'' In the instant case, we have already seen that on this point there is a concurrent finding of both the courts below that although the suit premises was let out for the residential purpose, the Defendant/Appellant used the same also for business purpose, In view of this concurrent finding it can be said without hesitation that this Court cannot enter into the said question once again to come to any other finding, re-assessing the evidence on record. Since the question formulated touches the point of limitation, it should be pointed out that nowhere there any limitation has been prescribed specifically for filing the suit on the ground mentioned in Section 13 of the West Bengal Premises Tenancy Act. No doubt, Section 29 of the West Bengal Premises Tenancy Act prescribes limitation by providing in d. 2 that an appeal from a final order of the controller shall be filed within 30 days of the date of order of the controller, but that provision clearly was not applicable in the case of filing of the suit for eviction. Nowhere it was argued on behalf of the Appellant/Defendant that the suit was barred by limits) Separation for any reason. Here also there is no cogent-reason to come to a finding that a particular ground for eviction taken by the Plaintiff/Respondents should be held barred by limitation. Therefore, this particular point is also answered in negative.

In the result, in view of my observations above, the appeal must fail. Appeal is dismissed. But having regard to the facts and circumstances I make no order as to cost.