Pranabesh Adhikari vs Sukanta Singha, & Anr.

This second appeal is directed against the judgement and decree dated 16th January, 2015 passed by the Learned Judge, 3rd Bench, City Civil Court at Calcutta in Title Appeal No. 1 of 2014 affirming the judgement and decree dated 23rd September, 2013 passed by the Learned Judge, 6th Bench Presidency Small Cause Court in Ejectment Suit No. 77 of 2008, at the instance of the defendant/appellant.

Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.

Here is the case where we find that the plaintiffs filed a suit for eviction against the defendant on the ground of default in payment of rent and also on the ground of reasonable requirement. It is alleged by the plaintiff no.1 that his family consists of nine (9) members viz. the plaintiff no. 1 himself, his wife, his son, his mother, three aunts and two brothers. It is alleged by the plaintiff no.1 that he has three rooms in his possession. One of such rooms is on the ground floor and the other two rooms are on the first floor of the said premises. The defendant is tenant in respect of the two rooms in the suit premises. The other two rooms of the suit premises are in possession of another tenant. The plaintiff no.1 thus, claimed that he reasonably required at least 12 rooms in the said premises to accommodate himself and the members of his family. The plaintiff no.1 also claimed that the defendant is a defaulter in payment of rent since May, 2006.

The defendant appeared in the said suit and contested the same by filing written statement denying the allegation made out in the plaint. It is contended by the defendant that the plaintiffs'' family consists of three members only i.e. the plaintiff no.1 himself, his wife and his son. The defendant stated that the brothers of the plaintiff no.1 are not the members of their family and they do not reside with the plaintiffs. It is also alleged by the defendant that the mother of the plaintiff no.1 is residing in rented premises and the two brothers of the plaintiff no.1 are residing elsewhere. The defendant thus, alleged that the requirement of the mother of the plaintiff no.1 and the brothers of the plaintiff no.1 cannot be considered as the requirement of the plaintiffs in this eviction proceeding.

The defendant however, admitted that he defaulted in payment of rent since May, 2006. The defendant filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 praying for permission to deposit all arrear rent in the suit. The said application was filed beyond the prescribed period of limitation and as such, condonation of delay in filing the said application was prayed for by the defendant.

The defendant''s said application under Section 7(2) of the said Act was allowed by the learned Trial Judge vide order No. 22 dated 4th February, 2011. The learned Trial Judge permitted the defendant to deposit the entire arrear rent together with interest within 15th March, 2011 subject to payment of cost of Rs.1000/- for the delay by 15th February, 2011.

Though the defendant deposited the arrear rent together with interest within the time allowed to him but admittedly the defendant did not deposit the cost amount of Rs.1000/- within 15th February, 2011. The order passed by the learned Trial Judge allowing the defendant to deposit the arrear rent as per the provision contained in Section 7(2) of the West Bengal Premises Tenancy Act, 1997 was a conditional order as the said order permitting the defendant to deposit arrear rent will become effective subject to payment of cost of Rs.1000/-. Since the defendant admittedly did not deposit the cost amount within 15th February, 2011, the defendant cannot claim the benefit of the order passed by the learned Trial Judge on 4th February, 2011 on the defendant''s application under Section 7(2) of the West Bengal Premises Tenancy Act. If the defendant cannot get the benefit of the said order passed by the learned Trial Judge under Section 7(2) of the said Act because of his failure to deposit the cost amount within the time allowed to him, the defendant cannot get the benefit under Section 7(4) of the West Bengal Premises Tenancy Act. As such, he was rightly adjudged his default in payment of rent by both the courts below.

With regard to the reasonable requirement of the plaintiffs, we find that though the defendant disputed the brothers of the plaintiff no.1 being the members of his family but he did not raise any dispute with regard to the plaintiff No.1''s aunts and his mother being members of the family of the plaintiff No.1. Though it is true that the mother of the plaintiff no.1 is staying in a rented accommodation but a suit has been filed against her by her landlord for her eviction from the tenanted premises. As such, her stay in the said premises is in precarious condition. That apart, if the plaintiff No.1 wants to bring his mother in the suit premises for staying together, the tenant cannot resist the plaintiff No.1''s claim for the requirement of the his mother.

Fact remains that one of the aunts of the plaintiff No.1 died during the pendency of the suit. The plaintiff No.1 was unable to prove that his brothers are also part of his family.

As such, we can safely hold that the family of the plaintiff no.1 consists of six members i.e. the plaintiff no.1 himself, his wife, his son, his mother and two aunts. Six adult members of the family cannot be accommodated in three rooms.

When under such circumstances, the learned Trial Court passed a decree for eviction on the ground of default in payment of rent and also on the ground of reasonable requirement of the plaintiffs and the said judgement and decree of the learned Trial Judge having been affirmed by the learned First Appellate Court with the concurrent findings of fact, we sitting in this jurisdiction do not find any justifiable reason to upset such findings of both the courts below.

We do not find involvement of any substantial question of law in this appeal. We thus, find no merit in this appeal.

Accordingly, we decline to admit this appeal.

The appeal is, thus, dismissed.

Re : CAN 7189 of 2016

Considering the fact that the defendant/appellant was in the suit premises for a long time, we on the request of Mr. Raut, learned advocate appearing for the appellant, stay the execution of the decree till 31st October, 2017 subject to compliance of the following conditions:-

The defendant/appellant will have to submit an undertaking within two weeks before the learned Executing Court stating therein that he will vacate the suit premises and deliver vacant and peaceful possession thereof to the plaintiffs/respondents and/or their authorised representative on or before 31st October, 2017 and during the period of his stay, he will not cause any damage to the suit premises and/or will not let out and/or sublet any portion thereof.

During the period of this stay, the defendant/appellant will have to deposit the occupational charges of the suit premises @ Rs.1000/- per month in the Executing Court. First of such deposit for the month of June, 2017 will be made in the Executing Court within 7th of July, 2017 and the for the subsequent months within 7th of each following month with this rider that the rent for the month of October, 2017 will have to be deposited with the learned Executing Court by 15th October, 2017.

In default of compliance of any of the conditions as mentioned above and also in the event the defendant/appellant fails and/or refuses to vacate the suit premises by 31st October, 2017, the interim stay as granted above will stand automatically vacated and in that event the learned Executing Court will grant police help to the decree-holders/respondents for recovering possession of the suit premises from the defendant/appellant without inviting any further application from the respondents/decree-holders.

In case deposits are made by the appellant, the respondents will be at liberty to withdraw the same from the learned Executing Court, without furnishing any security therefor.

The application is thus, disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.