Radha Gobinda Chandra vs Nritya Gopal Karmakar

S.K. Bhattacharyya, J.—This appeal by the Plaintiff is directed against the judgment and decree passed by Judge, Tenth Bench, City Civil Court, Calcutta, dismissing the Plaintiff''s suit for ejectment of the Defendant-Respondent from the disputed premises. The suit out of which this appeal arises, was for eviction of a monthly tenant at will upon service of notice to quit on the ground of reasonable requirement of the Plaintiff and his family members as also for his printing press business carried on in the ground floor of the premises in suit. Facts leading up to the present suit may briefly be stated.

The Defendant was a monthly tenant in respect of two bedrooms, one kitchen, bath and privy and water tap in the ground floor of premises No. 76-B Nimu Gossain Lane, Cakutta-5, from the time of the Plaintiff''s predecessor at a rental of Rs. 30 payable according to Bengali calendar month. By a registered deed of conveyance dated February 8. 1962, the Plaintiff purchased the premises in suit from the previous landlords and got vacant possession in respect of a portion on the ground-floor as also of the first floor. The Defendant, who attorned to the Plaintiff after his purchase, paid rent in respect of his tenancy upto Ashar 1371 B.S. As the Plaintiff required the premises in dispute for his own use and occupation, he caused a notice to quit to be issued to the Defendant on April 5, 1966, requiring him to quit and vacate the disputed premises with the expiry of the month of Baisakh 1373 B.S. but the Defendant in spite of the service of notice upon him, failed and neglected to comply and the Plaintiff accordingly instituted this suit on June 3, 1966.

The Defendant entered appearance in the said suit and filed a written statement disputing the requirement of the Plaintiff and contended that the Plaintiff had more than sufficient accommodation to live comfortably in the disputed premises as also in his ancestral premises at 54-B Nimu Gossain Lane that was just across the disputed premises beyond a narrow common passage. The Defendant also disputed the requirement of the Plaintiff on account of his printing press.

The learned Judge on a consideration of evidence adduced in this case found that the Plaintiff had failed to make out a case of reasonable requirement either on account of his printing press business or for the accommodation of the members of his family and accordingly, dismissed the suit. Hence, this appeal by the Plaintiff.

Mr. Bankim Chandra Dutt, the learned Advocate, assisted by Mr. Gopinath Nandi, the learned Advocate appearing for the Appellant, has assailed the finding of the learned Judge on both the Courts. He has contended that the learned Judge was entirely wrong in rejecting the Plaintiff''s case of reasonable requirement for the purpose of accommodation of his printing press and his finding that the requirement of the Plaintiff''s brothers could not be regarded as the requirement of the Plaintiff in the sense that they could not be treated as members of the Plaintiff''s family, was also erroneous and incorrect.

Mr. Sudhis Dasgupta, the learned Advocate assisted by Mr. Tapash Mukherjee, the learned Advocate appearing for the Respondent, has contended before us that upon the evidence adduced in this case it could hot be said that the press alleged to be owned by the Plaintiff was a running press for which extra accommodation would be necessary and in the second place. Mr. Dasgupta contended that the Plaintiff was already in possession of reasonably suitable accommodation and the requirement for his brothers, who had independent income and who were co-sharers in the ancestral dwelling house, could not be regarded as the requirement of the Plaintiff and as such, the requirement was not reasonable.

Before we discuss the merits of the respective contentions of Mr. Dutt or Mr. Dasgupta, it is necessary to advert to two affidavits affirmed by the Defendant on August 5 and 7, 1975 and position thereto filed by the Plaintiff on August 8, 1975, as also affidavit-in-reply affirmed by the Defendant on the same date. These affidavits disclosed events that are said to have taken place after the disposal of the suit. Broadly speaking, one set of affidavits seek to make out that the requirements of the Plaintiff have diminished as a result of her unmarried sister being married during the pendency of the appeal and moreover, further accommodation has become available to the Plaintiff and his family at their ancestral premises at 74-B Nimu Gossain Lane on account of the death of the Plaintiff''s paternal aunt Siba Sunday Dassi who used to live in the ancestral premises with her son Kedernath Sen. It was admitted that the Plaintiff''s unmarried sister had since been married and his paternal aunt had died and her son Kedernath Sen had also shifted to another house. But the Plaintiff seeks to make out that his uncle Muran Mohan Chandra, having since died, his two sons and six daughters have shitted to the ancestral premises in which they are also co-sharers and as such, the requirement of the Plaintiff instead of having diminished has become more acute. It is also affirmed that since the disposal of the suit one of the brothers of the Plaintiff Get Govinda had married and is living with his wife in one of the two rooms on the first floor in premises No. 76-B Nimu Gossain Lane. In the other set of affidavits the Defendant Respondent has affirmed that the Plaintiff has, since the disposal of the suit, been accepting rent from him which was sent to him by money order and as a result thereof the notice dated April 5, 1966, must be taken to have been waived, a fact which of course was admitted by the Plaintiff in his affidavit-in-opposition, but the Plaintiff disputed; that the notice in question was waived as a result of acceptance of the rent after disposal of the suit. We shall have occasion to refer to these circumstances at appropriate time.

The case made out by the Plaintiff in para. 8 of the plaint was that he required the entire premises No. 76-B Nimu Gossain Lane for the use and occupation of himself and his family members and dependents comprising of his two brothers, an unmarried sister and widowed mother and also for the printing press business belonging to his family members. The Plaintiff thereafter described the accommodation that was available to him and his family members both in the disputed premises as also in his ancestral premises No. 54-B Nimu Gossain Lane, Calcutta, which was situated just across a narrow passage of about 3ft. wide. The accommodation available at both the premises were then set out and it was alleged that the existing accommodation that was available to the Plaintiff was quite insufficient and the Plaintiff reasonably required at least four bedrooms for accommodation of the Plaintiff and his two brothers, one unmarried sister and widowed mother and three rooms were reasonably required for the printing press. The accommodation available at premises No. 76-B Nimu Gossain Lane was then set out. The Defendant in paras 2 and 7 of the written statement disputed the requirement of the Plaintiff and contended that the Plaintiff had sufficient accommodation to live comfortably in the rooms at his disposal, it being contended that his two other brothers were independent youngmen having income of their own and they were not as such dependents on him. The Defendant also disputed the requirement of the Plaintiff for the printing press. During the pendency of this appeal, the West Bengal Premises Tenancy Act, 1950, (to be hereinafter referred to as the Act) came to be amended by the West Bengal Premises Tenancy (Second Amendment) Act, XXXIV of 1969 and Clause (f) of Section 13(1) was substituted by Clauses (i) and (ff) as also a new sub-section being Sub-section (3A) was introduced whereby an omnibus inhibition against recovery of possession was introduced. It further appears that the suit was instituted after expiry of three years from the date of acquisition of the interest in the property by the Plaintiff and as such, prohibition of Sub-section (3A) which was retrospective in operation, would not affect the Plaintiff''s case here. As for Clause (ff) the Plaintiff, it would seem, had foreseen the subsequent enactment saddling her with new conditions and the suit in question sought for eviction on the ground mentioned in Clause (ft; and Uie deten dant also disputed the conditions subsequently imposed and con tested the suit on that ground. In that view of the matter, it was not necessary for us to proceed in this appeal in terms of requirements laid down by the Supreme Court in the case of B. Banerjee Vs. Smt. Anita Pan, . As both the parties had adduced evidence on the question of reasonable requirement as also on the ground of suitability of the accommodation available to the Plaintiff and the reasonableness thereof, no fresh evidence was called for in the instant appeal in accordance with the decision of the Supreme Court refer red to above.

Let us now examine if the Plaintiff has been able to make out a case of reasonable requirement for himself and as also for the members of his family and the printing press business and if so, whether the Plaintiff was in possession of any reasonably suitable accommodation already.

Coming to the printing press business of the Plaintiff, it is to be pointed out that the learned Judge has accepted the position that the Plaintiff''s father owned and possessed a printing press carried on under the name and style of ''Chandra Printing Works'' at 71/2/1, Cornwallis Street, Calcutta, but as the said premises was acquired by the Land Acquisition Collector, the printing press had to be removed first to 319 Upper Chitpur Road and subsequently to the ground-floor portion of the disputed premises that became available to the Plaintiff after his purchase. The Defendant did not dispute that there existed some parts of machineries of the press in one of the rooms in the disputed premises, but he contended that the press was not in working order and it remained closed. The Plaintiff did not produce any papers in support of his case that the printing press was a running business that needed some extra accommodation for its proper functioning. On the Plaintiff''s own evidence there was no licence for the press and they executed only small jobs, such as, printing of invitation cards, bills etc. (viz. P.W. 2). On this evidence, the learned Judge thought that there was no evidence to show that the printing press was a flourishing business that required extra accommodation. According to the Plaintiff, the press was functioning in two rooms on the ground floor of the disputed premises, which according to the Defendant the machineries have been stored in one room of this premises. On the materials made available to the Court, we do not see any sufficient reason to differ from the assessment made by the learned trial Judge that no reasonable requirement for the extra accommodation of the printing press had been made out. Mr. Dutt appearing for the Appellant relied on the case of Carrara Marble and Terrazo Co. Ltd. Vs. Charu Chandra Guha, for the purpose of showing that a bona fide requirement of the premises for the own use of the Plaintiff for running a printing press was prima facie reasonable unless the contrary was shown. Mr. Dasgupta for the Respondent did not seriously assail this contention but contended that the requirement of the Plaintiff for his printing press, on the Plaintiff''s own evidence, had not been made out and on a careful consideration of the materials on the record, we agree with the learned Judge that the Plaintiff has failed to prove his requirement in connection with the extra accommodation for his printing press in the disputed premises.

Coming now to the question of reasonable requirement of the Plaintiff for his own use and for the occupation of his family members, Mr. Dutt appearing for the Appellant has seriously assailed the finding of the learned trial Judge and contended that the learned trial Judge was in error in not treating the Plaintiff''s brothers as members of his family within the meaning of Clause (ff). The learned Judge seems to think that the Plaintiff was not duty-bound to provide for increased accommodation for his other brothers, who had independent income of their own, besides being co-sharers in the ancestral dwelling house wherein the Plaintiff was already in occupation of one room. The learned Judge further thought that although the Plaintiff had a duty to provide for the accommodation of his mother and unmarried sister they were comfortably lodged in the ancestral house at 54B Nimu Gossain Lane which was situated across a narrow passage from the disputed premises. Mr. Dutt admits that the Plaintiff and his other brothers were co-sharers in the ancestral family dwelling house, but the accommodation available to die Plaintiff''s branch was only one room in the said premises wherein the Plaintiff''s mother and the unmarried sister used to put up as no accommodation was available to them in the disputed premises. This besides having the effect of splitting up of the family, they are also inconvenienced in various other ways, the evidence adduced in the case showed that the Plaintiff purchased this premises for the purpose of his residence, as also for carrying on his printing picas business and his case was that the family with the mother at the apex was still joint. Mr. Dutt, accordingly, contended that me Plaintiff''s brothers, even though they had some independent income and were otherwise entitled to a share in the family dwelling house, must be regarded as members of the Plaintiff''s family, living under his care and the requirement for the brothers as also for the mother and unmarried sister, as it then existed, would be regarded as reason able within the meaning of Clause (ff) of Section 13(1) of the Act.

The expression ''family'' has nowhere been defined in the Act but the term is one of great flexibility and is capable of many different meanings according to the connection in which it has been used. In its ordinary and primary sense, the term family'' signifies the collective body of persons living in one house, or under one head or manager, the relationship between such persons being of a permanent or domestic character. In its restricted sense, the term would include only the parents and their children. Indeed, the word ''family'' does not occur anywhere in Clause (ft) of Section 13(1) of the Act, but this word came to be interpreted in the context of the expression ''his own occupation'' occurring in Clause (ff) in several cases.

In the case of Makhan Lall Bose and Others Vs. Sm. Sushama Rani Basu and Others, a Division Bench of this Court in interpreting the words ''member of such family'' in Section 4 of the Partition Act held that the family appearing in Section 4 should be given a liberal interpretation and it should be held to include not merely a body of persons, who originate from a common ancestor, but also a group of persons related by blood and living in one house or under one hand of management. In the case of Bibhuti Bhusan De v. Kshettra Gopal Dutta ILR (1951) Cal. 375 a Single Bench of this Court in interpreting the expression bona fide requirement for his own occupation occurring in Section 11(f) of the West Bengal Rent Control (Temporary Provisions) Act, 1948, construed the expression ''own occupation'' in the context of the Plaintiff''s family and it was held that to limit the extent of family to immediate relations of the Plaintiff will be putting a very narrow Construction on the word ''family'' as the term was understood in the Hindu conception. In the case of Sukumar Guha Vs. Naresh Chandra Ghosh and Another, another Single Judge of this Court in interpreting the expression "reasonably required by the landlord...for his occupation" as occurring in the unamended Clause (f) in Section 13(1) of the Act held that the extent of the boundaries of the family dependent on particular facts of each case and the structure and outlook of each family and on the facts of that case even the cousins of the landlord, their wives and children, paternal cousin of the aunt''s son were reckoned as member of the landlord''s family for the purposes of Section 13(1)(f) of the Act. In the case of Pushpalata v. Dinesh 85 C.L.J. 74 the words ''his own'' in Clause (f) in Section 13(1) came to be interpreted and this Court held that the expression ''his own'' did not necessarily mean of the particular individual alone but must be interpreted to include his family and dependants and such person or persons who may be essential and necessary for the purpose of such occupation. In the context, it was pointed out that it was not only permissible but proper and desirable for the Court to bear in mind the context of social order, the habits and ideas of living and the religious and socio-religious customs of the community to which the individual concerned belonged and then come to a conclusion on the facts of each case. Pushalata''s case 85 C.L.J. 74 was followed in several decisions of different High Courts and was quoted with approval. In the case of Mrs. B.M. Davidson v. A. Khatoon 70 C.W.N. 967 husband''s brothers and mother of the Plaintiff were considered as members of the Plaintiff''s family as they were then living together with the Plaintiff and it was held that the Plaintiff''s requirement would include their requirement as well. Mr. Dasgupta appearing for the Respondent sought to contend that a strict view of the term ''family'' should be taken in interpreting the words his own occupation'' in Clause (ff) of Section 13(1) and relied on the decision of the Supreme Court in the case of D.N. Senghavi and Sons v. A.T. Das (8) where the expression ''for his own occupation'' occurring in Section 39 of Madhya Pradesh Accommodation Control Act, 1961, came to be interpreted by the Supreme Court. That section dealt with residential as well as non-residential accommodation and the Supreme Court also considered Clause (e) and (f) of Section 12(1) of the said Act and compared them with the first proviso to Section 39(2) which enable the landlord to obtain possession of a vacant accommodation for his own occupation by way of residence or business. The word ''own'' in the phrase ''his own occupation'' in Section 39(2), according to the Supreme Court, has been deliberately used to add emphasis to the possessive force of the pronoun ''his'' and in connotation the idea that accommodation was needed directly and substantially for his occupation. The Act, of course, is not in pari materia with the provisions of the Act now under examination and the decision on a statute enacted for a purpose which for its objects includes both residential or nonresidential accommodation could not be a safeguard for the purposes of interpreting a statute that dealt with the regulation of certain incidents of tenancy of premises in the State of West Bengal. The suit before the Supreme Court was a suit for ejectment on the ground of need for continuing the Plaintiff''s business and it was expressly held that it was necessary for the landlord to prove that accommodation was needed directly and substantially for his occupation for the purpose of continuing or starting his business. This decision cannot, therefore, apply to the facts of the instant case.

In view of what has been discussed above, the term ''family'' in the context of the expression ''his own occupation'' occurring in Clause (ff) of Section 13(1) of the Act must be given a wider meaning and it should not only include a body of persons, who are not merely connected by blood or affinity, but also lived in one house or under one head judged in that light the Plaintiff''s brothers, even though they undoubtedly had independent sources of income, would be regarded as members of his family within the meaning of the expression ''his own occupation'', more particularly as the mother was still living. The mere fact that the brothers had independent incomes or that they were co-sharers in the ancestral dwelling house would not be sufficient for coming to the conclusion that their requirement could not be included within the Plaintiff''s requirement or that they would not form part of the Plaintiff''s family if and when the Plaintiff opted from the joint family and elected to have an establishment of his own. I have already referred to the accommodation available to the Plaintiff or his brothers in the ancestral dwelling house and this, in any view of the matter, cannot be regarded as sufficient or suitable, besides having the effect of spiting up of the family, so as to force them to occupy different premises even though it was just across a narrow common passage. It has not even been suggested that the brothers of the Plaintiff had income sufficient for running a separate establishment. On the contrary, it appears from the evidence that the two brothers were already living in the disputed premises when one of them, Get Govind, got married during the pendency of this appeal, a fact which is now admitted. That would indicate that as against marriage of the unmarried sister of the Plaintiff during the pendency of the appeal, their requirement instead of being lessened, has become more acute for not only there has been an addition to the family during the pendency of the appeal, but the sister who had got married would also occasionally require some accommodation to live in the premises if and when she was either invited or volunteered to come. It is true that a permanent room cannot be claimed for his sister or her husband, but it is equally preposterous that if the newly married couple would visit the father-in-law''s house they could not be provided with sleeping accommodation even occasionally. One spare room, therefore, seems to us to be absolutely necessary for being used for omnibus purposes besides the requirement of the Plaintiff, his mother and his two other brothers for whom at least four bed-rooms would be necessary. This judged in the context of the ever increasing accommodation of the Plaintiff''s family leads us to conclude that the Plaintiff requires at least five rooms for their use and occupation and one room, if not two rooms, would be necessary for the printing press. It is not disputed that at present two rooms are being used for the printing press and we have already held that further extra accommodation for the printing press cannot be acceded to. It was conceded by Mr. Dasgupta and it further appears from the Commissioner''s report that the two rooms in occupation of the Defendant on the north-western portion of the ground-floor are interlocked rooms and there is only one door for ingress to room No. 1 through room No. 2. That being the position, Mr. Dasgupta conceded that the question of partial eviction did not arise in the instant case and if the Plaintiff is able to satisfy the Court as to his requirement, then there would be no bar of his getting a decree.

Hence, on a careful consideration of all the materials on record we must hold that the Plaintiff reasonably requires the premises in dispute for his own use and occupation and we further hold that the Plaintiff is not at present in occupation of a reasonably suitable accommodation.

1.6. Mr. Dasgupta lastly contended that there had been a waiver of the notice of ejectment dated April 5, 1966, as the Plaintiff-Appellant had accepted rents after the disposal of the suit. The case of the Respondent, as made out in his further affidavit, dated August 7, 1975, is that after disposal of the suit on January 31, 1968, the Defendant sent the rent for the month of Magh 1374 B.S. to the Plaintiff by money order and this was accepted by the Plaintiff on February 22, 1968 and the Plaintiff subsequently filed the present appeal on March 19, 1968. Since the acceptance of the above rent, the Defendant, it was further contended, had been paying rent to the Plaintiff landlord all along, a fact which was admitted by the Plaintiff in his affidavit-in-reply dated August 8, 1974, but it was asserted that this was accepted as mesne profits without prejudice to the Plaintiff''s rights and there was no waiver. Mr. Dutt appearing for the Respondent has contended before us that such acceptance of an amount equivalent to the rate of rent by the Plaintiff after the decree for eviction had been passed, would not restore the Defendant''s tenancy and he could not be regarded as a tenant within the meaning of Clause (h) of Section 2 of the Act which specifically excludes such a person. By the definition, therefore, the Defendant has ceased to be a tenant after the decree of eviction has been passed against him and in the case of Kanailal Dutta Vs. Kanailal Patra, this view was accepted by this Court. In this connection, reference may also be made to Section 23 of the Act, which provides for the withdrawal of rent deposited u/s 21 of the landlord and it specifically recites that such withdrawal shall not operate as a waiver of any notice to quit, given by the landlord to the tenant except a notice on the ground of default referred to in Clause (i) of Sub-section (1) of Section 13. It cannot, therefore, be contended that the notice on the basis of which the Defendants tenancy was terminated had been waived by acceptance of such rent. Mr. Dasgupta, in the next place, contended that such acceptance of rent or an amount equivalent thereof would constitute a new tenancy in favour of the Defendant. Mr. Dutt appearing on behalf of the Respondent cited a long line of cases from Davies v. Bristow (1920) 3 K.B. 428, Morrison v. Jacobs (1945) 1 K.B. 577, Manindra v. Man Singh 85 C.L.J. 339, Kartick v. Ganga Dutt 59 C.W.N. 827 and the appeal to the Supreme Court against the said decision in Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, and lastly the case of Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and Others, . In the last cited case, the Supreme Court observed that mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined either by efflux of time or by notice to suit and who enjoys statutory immunity from eviction except on well-defined grounds as in the Bombay Rates, Hotel and Lodging House Rates (Control) Act, 1947, could not be regarded as evidence of a new agreement of tenancy and if the tenant asserts that the landlord accepted rent not as statutory tenant but only as legal rent indicating his assent to the tenants continuing in possession, it was for the tenant to establish the same. These long line of cases clearly establish that mere acceptance of rent after the notice to quit would not operate as waiver and it is necessary for the tenant to establish that, as a matter of fact, the intention was to create a new tenancy or to treat the lease as subsisting. Mr. Dasgupta relied on the decision of Usharani Debi Vs. Charusila Dasi and Another, where the notice to suit was held to have been waived on the peculiar facts of the case, as the landlord continued to accept rent sent to him through postal money order even after the notice. The facts in the case of Usharani Devi v. Charushila Dasi, in our view, are entirely different. In the instant case, the acceptance was after the decree was passed and by the decree the Appellant had ceased to be a tenant within the meaning of Section 2(h) of the Act and it has not been shown that besides acceptance of rent by the landlord there is any other indication on his part to waive the notice or to constitute a fresh tenancy. On the contrary, the landlord proceeded to contest the appeal filed after the acceptance of the rent and all indications, if any, are to the contrary. In the circumstances, we must hold that the tenant Respondent has failed to establish that there was any waiver of notice or creation of a fresh contract of tenancy in the instant case.

For the reasons discussed above the appeal must succeed and is accordingly allowed. The judgment and decree of the trial Court is hereby set aside and the suit is decreed with costs. The Defendant is hereby ejected from the premises in suit and is allowed time till December 31, 1975, to vacate failing which the landlord will be at liberty to execute the decree. There will be no order for costs in this appeal. The Defendant-Respondent will continue to deposit an amount equivalent to the rate of rent on the trial Court or in the office of the Rent Controller month by month according to the Bengali calendar by the 15th of next succeeding month and in default of any of the instalments the decree will become executable at once.

Janah J.

I agree.