Sajanendra Nath Tagore vs Barindra Kumar Dutta Gupta

A.M. Bhattacharjee, J.—The suit that has wended up to this Court in this second appeal was filed by the landlord-respondent against the tenant-appellant for eviction of the latter from the tenanted premises on the ground of landlord''s reasonable requirement for own occupation and has been decreed by both the courts below. A landlord''s claim for the recovery of possession of a tenanted premises on the ground of reasonable requirement for his own occupation has a qualitative as well as a quantitative aspect. The landlord must face and answer two questions, namely, (1) why does he require and (2) how much does he require. He must, firstly, satisfy the Court that the quality of his requirement, that is, the purpose for which he requires the premises, is reasonable. And he must then satisfy that the quantity, that is, the extent of his requirement for such purpose, is also reasonable. The first question as to the quality or purpose of his requirement may very often give rise to a question of law which would require the Court to consider as to whether the avowed purpose can in law be regarded to be a reasonable requirement. But once the purpose is found to be qualitatively reasonable, the finding as to the quantity or the extent of his requirement would, by and large, be a question of fact and not a question of law, and far less a substantial question of law within the meaning of Section 100 of the Code of Civil Procedure, as it now stands amended in 1976.

In Mattulal Vs. Radhe Lal, , a two-Judge Bench of the Supreme Court has ruled that in view of an earlier four-Judge Bench decision in Sarvate T.B. v. Nemi Chand ( 1966 MP LJ 26), and also even otherwise on principle, a finding as to the reasonable requirement of a suit-premises by the landlord in a suit for ejectment against the tenant is to be regarded as a finding of fact. Referring to the three-Judge Bench decision of the Supreme Court in Kamla Soni v. Rup Lal Mehra (1970 RCR 34) holding that such a finding would be a finding on a mixed question of law and fact, the Supreme Court in Muttulal (supra) has pointed out that the said decision in Kamal Soni (supra) was per incuriam having been rendered without any advertence to the larger Bench decision in Sarvate T.B. (supra) and can not be taken to have laid down good law either on authority or in principle. The position that has emerged in view of Sarvate T.B. (supra) as explained and amplified in Muttulal (supra), is that the finding as to the reasonable requirement being a finding of fact is unassailable in second appeal, unless it can be shown that such a finding was arrived at on an erroneous application of law or was based on no evidence at all or was such as could not be arrived at by any reasonable person.

It must, however, be noted that Muttulal (supra) was decided when second appeals were being governed by Section 100 of the Code of Civil procedure, as it stood before its amendment by the Amendment Act, the jurisdiction in second appeals has been sought to be considerably circumscribed and a second appeal would now lie only on a "substantial question of law". In A.K. Mukherjee v. Pradip Sarbadhikary (1987-2 Calcutta High Court Notes 365), a Division Bench of this Court, speaking through one of us, has expressed grave doubts as to whether there can be a "substantial question of law" meriting a second appeal u/s 100 of the Code of Civil Procedure, as it is now stands, simply because the decision has been arrived at on no evidence or without proper advertence to some material evidence or is such that could not be arrived at by any reasonable person on the facts on record. The Division Bench has noted that the tests for determining as to whether there is a "substantial question of law" have been laid down by the Supreme Court in the five-Judge Bench decision in Chunilal V. Mehta v. Century Spinning & Manufacturing Co. (AIR 1962 SC 1214 at 1318), while construing the very same expression in Article 133(1) of the Constitution, as it stoc(sic) then, which provided that where the judgment, decree or final order appealed from affirmed the decision of the Court immediately belo(sic) (in any case other than a case covered by sub-clause (c) thereof), a appeal could lie to the Supreme Court if the High Court certified the appeal involved some "substantial question of law" and the Supreme Court has observed thus (at paragraphs 5 and 6) : -

The proper test for determining whether a question o(sic) law raised in the case is substantial would, in our opinion(sic) be whether it is of general public importance or whether i(sic) directly and substantially affects the rights of the parties an(sic) if so whether it is either an open question in the sense tha(sic) it is not finally settled by this Court or by the Privy Counci(sic) or by the Federal Court or is not free from difficulty or call(sic) for discussion of alternative views. If the question is settlec(sic) 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(sic) raised is palpably absurd, the question would not be a substantial question of law.

Though the Division Bench in A.K. Mukherjee (supra) has not decided the question finally, it has expressed its inclination to hold that the same tests, as laid down by the Supreme Court in Chunlil V. Mehta (supra), would apply in determining the question as to whether there is a "substantial question of law" within the meaning of Section 100 of the Code of Civil Procedure, as it now stands. The Division Bench, how ever, has not noted that a three-Judge Bench of the Supreme Court in Mahindra & Mahindra v. Union of India (AIR 1979 SC 789 at 812) has already adverted to this question and has applied the tests laid down in Chunilal V. Mehta (supra) in construing the expression "substantial question of law" in Section 100 of the Code of Civil Procedure, as it now stands after the 1976-Amendment.

It, however, appears that in an earlier three-Judge Bench decision of the Supreme Court in Hooghly Jute Mills Vs. Their Employees, a somewhat different note was struck and much more liberal tests were applied. There the Supreme Court was considering the provisions of Section 7 of the Industrial Disputes (Appellate Tribunal) Act 1950, (now repealed), whereunder an appeal could lie to the Appellate Tribunal only on a "substantial question of law" and the Supreme Court appears to have observed that even though the appeal was to lie only on a "substantial question of law", yet the Appellate Tribunal could set aside the findings of fact reached by the Industrial Tribunal if_ there was no evidence at all on which such a finding could (sic) based or the finding reached by the Industrial Tribunal was perverse (sic) such as no reasonable body of men could have arrived at. As pointed (sic)t by the Division Bench of this Court in A.K. Mukherjee (supra), for (sic) proper disposal of second appeals instituted after the amendment (sic)nd substitution of Section 100 of the Code by the Amendment Art of (sic)976, it has become very much necessary for this Court to determine (sic)nce for all (and sooner the better), the true scope of Section 100, as (sic)t now stands and to decide as to whether there can at all be a "subs-(sic)tial question of law" to warrant a second appeal merely on the ground that the impugned decision has been arrived at on no evidence or in disregard of relevant evidence or is such that, on the facts of the case no reasonable person could arrive at it. For if the answer be finally in the negative, but we delay in returning that answer, unmerited second appeals would continue to have illegitimate entry in this Court and the very purpose os amending the Section 100 of the Code in 1976 would stand eroded. It may be that sitting in second appeal, we may feel that justice has not been done and that there has been failure of justice in a particular case in determining issues of facts, but, as pointed our by the Privy Council almost a century ago in Durga Chowdhrain v. Jawahar Singh (17 Indian Appeals 122), there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross or inexusable the error may be. However, laudable the anxiety of our Courts to do justice may be, the second appellate Court must hold its hands if the case does not involve a "substantial question of law" and if there is none, then, as pointed out by the Supreme Court in Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, , consideration of justice and fair play and equity, however important they may be must yield to the clear and express provisions of Section 100of the Code. But as at present advised, we do not propose to determine the exact scope of Section 100 of the Code of Civil Procedure, as it now stands alter the 1976-Amendment, as, in our view, this second appeal would fail even according to the more liberal tests prescribed therefor u/s 100, as it stood before and a formulated by the Supreme Court in Mattulal (supra). As already noted Matullal (supra) has laid down that a finding as to the reasonable requirement of the premises by the landlord is unassailable in second appeal, unless there has been any wrong application of the relevant law or the finding is based on no evidence at all or in disregard of material evidence or is such as could not be arrived at by any reasonable person.

The trial court in this case, while upholding the landlord''s claim for reasonable requirement for further accommodation, has, however, held that the whole of the entire premises is not required. To be precise, the trial Judge has found in favour of the plaintiff-land lord in respect of his requirement for 6 inside rooms and 3 outer small rooms of the tenanted premises but has held that the plaintiff''s requirement for the remaining 2 inside rooms and 1 outer room has not been satisfactorily established. But the trial Judge nevertheless decreed eviction in respect of the entire premises as he was of the view that the tenant not having pleaded or urged for partial eviction, he was not required to go into that question. The First Appellate Court has reconsidered the entire evidence in considerable details and after taking into account the number of the members of the landlord''s family and their requirement and considering the accommodation available in the tenanted premises on a room to room basis, has concluded that the entire accommodation available in the tenanted premises, including all the rooms and other spaces available, are reasonably required by the landlord. The trial Judge having decreed the suit, though with a finding that a portion of the premises is not reasonably required, the Appellate Court, in an appeal against that decree by the tenant was, in view of Order 41 Rule 33, competent to hold that the entire premises,'' without excluding any portion, were reasonably required by the landlord, even though the landlord did not file any cross-appeal or cross-objection against the finding that a portion of the premises was not required by him. The landlord was also, while supporting the decree for ejectment granted by the trial court, entitled to urge, in view of Oder 41 Rule 22, that the finding against him that he did not require a portion of the premises, was wrong and that the decree for ejectment ought to have been based on the finding that he reasonably required the entire premises. The finding of the First Appellate Court that in view of the number of members of the landlord''s family, their status, occupation and social and financial position and their requirements, the entire tenanted premises, without excluding any portion therefrom, were reasonably required by the landlord, was obviously a finding of fact based on due consideration of the evidence on records. We do not find any misapplication of law, nor do we find the finding to be based on no evidence or to be such as could not be arrived at by any reasonable person. Therefore, even by the tests as applied to Section 100, as it stood before the 1976-Amendment, and as formulated by the Supreme Court in Mattulal (supra), this finding is unassailable in second appeal. It is true that in arriving at its finding, the First Appellate Court has taken into consideration the status and the social and financial position of the landlord and of the members of his family. But such a course has the imprimature of this Court as would appear from the Division Bench decision in Krishna Das Nandy Vs. Bidhan Chandra Roy, .

The trial court, no doubt, committed an error of law inasmuch as though it found that a portion of the premises consisting of 2/3 rooms was not required by the landlord, yet it did not consider the question of partial eviction in the light of the provisions of Section 13(4) of the West Bengal Premises Tenancy Act, 1956, solely on the ground that such a plea was not pleaded or urged by'' the tenant. There the trial Judge was clearly wrong. The reason behind the provisions of Section 13(4) of the West Bengal Premises Tenancy Act is quite obvious. Under the general law, neither a landolord is entitled nor a tenant is liable to partial eviction and eviction is to be decreed either for the whole premises or not at all. As pointed out by the Division Bench of this Court in Amar Prasad Goopta v. Arun Kumar Shaw (84 Calutta Weekly Notes 281 at 284), under the general law a lessor cannot evict the lessee from a portion only of the lease-hold and no court can pass a decree for partial eviction. That is why it was held in Mohindra Nath De v. Man Singh (85 Calcutta Law Journal 339 at 343) that even if it could be shown that the requirement of the landlord could be reasonably satisfied with a portion only of the tenanted premises, eviction was still to be decreed for the entire premises, as the relevant Rent Control Act of 1948, which governed that case, did not provide for partial eviction. Section 13(4) has, therefore, been enacted to remedy this anomaly and to provide that even though the landlord has sued, as he must sue, for the whole premises on the ground of his reasonable requirement, but the court is of opinion that such requirement may be substantially satisfied by evicting the tenant from a part of the premises only and allowing the tenant to continue to occupy the rest of the premises, the court shall decree partial eviction only allowing the tenant to occupy the rest, "if the tenant agrees to such occupation". The very expression "if the tenant agrees", couched in present tense, makes it irresistibly clear that the question of the tenant agreeing to partial eviction can at all arise only after the court is so satisfied on the evidence on record and the tenant can not be required to anticipate such satisfaction and to plead for partial eviction in advance in such anticipation. Even though, as already noted, Section 13(4) been enacted mainly to enable a court to decree partial eviction which it could not do under the general law, it has imposed a statutory obligation on the Court to consider the case in the light of that provision after the evidence is recorded and the Court is not relieved of such obligation simply because the tenant has not taken such a plea, but must discharge that duty irrespective of any plea in the pleadings. The Division Bench decision of this Court in Krishna Das Nandy (supra) is a clear authority for this proposition and the same has been followed by a learned single-Judge in Banka Behari Dutt Vs. Gour Mohan Dutta, which has been referred to by the First Appellate Court in its judgment. The decision of the Supreme Court in Rehman Jeo Wangnoo Vs. Ram Chand and Others, and in State of Punjab Vs. Gurnam Singh, under cognate Statutes operating in other States are also to the same effect.

That being the position in law, if in a case for eviction of the tenant on the ground of landlord''s reasonable requirement, the impugned judgment does not in any way demonstrate the court''s awareness of and advertence to the provisions of Section 13(4), the judgment would be bad in law. Again, if a Court, even though snowing its awareness of the provisions of Section 13(4), does not apply the same on an erroneous view that the same was not to be applied in the absence of a pleading to that effect by the tenant, as was done in this case by the trial court, a pappable error of law would be vitiating the judgment. But in this case, the First Appellate Court has referred to the provisions of Section 13(4) and has considered the question of partial eviction at more places than one and has clearly held that in view of its finding that the landlord reasonably, that is, genuinely requires the entire premises, the each and every room and all the available space, the question of his being substantially satisfied by a portion only of the premises does not arise. In that view of the matter, the Court has committed no error of law, but has only arrived at a finding of fact with due advertence to Section 13(4). Such a finding of fact would be unassailable in second appeal and it would not be permissible for the Second Appellate Court to review the evidence and to find that a portion of the premises would have substantially satisfied the requirement of the landlord.

We would accordingly dismiss the appeal with costs and affirm the judgment and decree passed by the First Appellate Court.

A.M. Bhattacharjee, J.

Shyamal Kumar Sen, J.

While agreeing with my learned brother that it is not necessary-'' for us in this Second Appeal to go into controversy as to what is the substantial question of law or whether we should strictly follow amended Section 100 of the CPC and give a restricted scope of Section 100 or will go by the principles or tests as applied to Section 100 as it stood before the 1976 amendment and it is also not necessary for us to determine the exact scope of Section 100 of the CPC as it now stands after the 1976 amendment and that it appears from consideration of the judgment under appeal that this second appeal cannot'' succeed even if the principles which were made applicable under pre-amended Section 100 are applied in this case. I propose to consider this case from the following stand point :

The learned Advocate for the appellant relied upon the judgment and decision in the case of Budhwati v. Gulab Chand Prasad reported in AIR 1987 Supreme Court page 1484. In that case the Supreme Court held that "it is true that in a second appeal the finding on fact, even if erroneous, will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions, then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding". In that case the Supreme Court was of the opinion that comparison of hardships of both the parties is not contemplated by the Bihar Buildings (Lease, Rent and Eviction) Control Act and coming to a finding on the basis of said comparison is not provided in the statute itself and, therefore, the court overstepped its limit and as such it can be corrected in second appeal. Such a position does not appear to us in the facts of the present case inasmuch as we find the first appellate court has considered the provision of 13(4) of the West Bengal Premises Tenancy Act and has not exceeded beyond the limit of the Statute.

The learned advocate for the appellant also relied upon the decision in the case of Nasirul Haque v. Jitendra Nath Dey reported in AIR 1984 Supreme Court 1799 and contended relying upon the said decision that it is the duty of the court to consider if the requirement of the plaintiff-landlord can be substantially satisfied by partial eviction of the tenant from the suit premises and the first appellate court having not considered the case from that aspect, the decision of the said court is vitiated and is liable to be set aside in second appeal. The Supreme Court in that case held that the court is to apply the test whether the requirement of the landlord which the court considers reasonable will be substantially satisfied (not fully satisfied) by ordering partial eviction of the tenant from the suit premises. The question thus has to be determined according to the Supreme Court by giving full effect to the concept of reasonable requirement from the perspective of substantial satisfaction of such requirement as considered to be reasonably objective. It may be noted that the Supreme Court in that case interpreted the proviso of Section 12(i)(c) of the Bihar Building (Lease, Rent and Eviction) Control Act of 1977 and made the aforesaid finding after taking into consideration that the High Court remanded the case to the trial court and called for a finding from the trial court on the question of partial eviction. The trial court while recording its finding was of the view that the question of partial eviction should be considered in the light of the requirement of the landlord as deposed to by him. The Supreme Court held that in doing so the High Court failed to take into account the said proviso of Section 12(i)(c) of the said Act. The Supreme Court held while interpreting the said proviso that "what is necessary to be considered is the reasonable requirement of the landlord and whether it would be ''substantially'' satisfied by evicting the tenant from a part only of the premises". According to the Supreme Court as held in the aforesaid case the court has to do two things - in the first instance to determine the extent of the premises which the landlord reasonably requires. The court has furthermore to apply a test as to whether such requirement as the court considers reasonable will be substantially satisfied (not fully satisfied by ordering partial eviction). In the case of Nasirul Haque v. Jitendra Nath Dey (supra) the High Court had earlier remanded the case to the trial court for a finding on the question of partial eviction. Therefore, it was apparent that there was no finding on partial eviction in that case which the High Court considered should have been gone into. The trial court while recording its finding was of the view that the question of partial eviction should be considered in the light of the requirement of the landlord as deposed to by him. In the aforesaid context the Supreme Court held that what is necessary to be considered is the reasonable requirement of the landlord and whether it would be substantially satisfied by evicting the tenant from a part only of the premises. The court has to determine the question of reasonable requirement on an objective basis and thereafter to apply the test whether such requirement which the court considers reasonable will be substantially satisfied (not fully satisfied) by ordering partial eviction. The Supreme Court made the said finding because this vital aspect has been altogether overlooked by the trial court which the High Court failed to appreciate. In the case before us it appears that both the trial court and the first appellate court considered the question of partial eviction. The first appellate Court specifically considerded Section 13(4) of the West Bengal Premises Tenancy Act particularly if the question of partial eviction of the tenant would substantially meet the reasonable requirement even though the tenant did not take such a plea and came to a finding when the court is satisfied that the partial eviction would meet the reasonable requirement of the landlord then the consent of the tenant is to be sought for. The first appellate court also found that the plaintiff could make'' out his case of reasonable requirement for the entire suit premises and as such the question of defendant''s consent did not arise. It appears that the first appellate court in effect took into consideration the question whether the reasonable requirement of the plaintiff would be substantially satisfied by partial eviction of the tenant while considering the statutory duty u/s 13(4) of the West Bengal Premises Tenancy Act. Accordingly this appeal should be dismissed and I, therefore, agree with the order proposed.