Sourendra Nath Rudra vs Ashim Kumar Bhattacharjee and Ors

Amitabha Dutta, J

This is an appeal by the defendant from a decree of affirmance in a suit for ejectment en the ground of reasonable requirement of the suit premises at 1 A, Abhoy Sarkar Lane, P.S. Bhowanipur, Calcutta for the plaintiffs'' own use and occupation and for mesne profits. The plaintiffs, who are three brothers, and their mother purchased the suit premises by a registered kobala dated 7. 8. 68 and served a notice on the defendant who had been occupying the same at a rent of Rs. 65/- per month according to English Calendar month to attorn to the plaintiffs. The plaintiffs brought a suit for eviction In 1969 and it was dismissed as it was premature. The plaintiffs instituted the present suit on 23.12.71 after service of a notice of ejectment dated 16.10.71 on the defendant asking him to vacate the suit premises on the expiry of November, 1971 on the ground, inter alia, that the plaintiffs reasonably require the suit premises for their own occupation as they have got no property in Calcutta for their residence except the suit premises and that they along with the father and sister of the plaintiffs Nos. 1 to 3 have been living in a rented flat comprising one room, attached kitchen and common bath and privy in Premises No. 17, Bijoy Bose Road, P. S. Bhowanipur with great inconvenience for dearth of accommodation.

The defendant has contested the suit denying in his written statement that the plaintiffs have got no property in Calcutta for their residence except the suit premises and alleging that the plaintiffs have been living very comfortably in Premises No. 17. Bijoy Bose Road which belongs to their close relation and is a very big house for more than 20 years and so their plea of requirement of the suit premises Is a myth.

The trial court had dismissed the suit holding that the notice of ejectment was invalid. In appeal the first appellate court found that the notice was valid and duly served on the defendant. So it remanded the suit for trial on other issues. Thereafter the trial court decreed the suit. The appellate court has affirmed the decree holding that the tenancy of the defendant was duly terminated by a notice dated 16.10.71 u/s 13(6) of the Act and that the plaintiffs reasonably required the suit premises for their own occupation and are not in possession of any reasonably suitable accommodation.

The only point raised on behalf of the appellant before this Court is that in the absence of a specific plea in the plaint that the plaintiffs are not in possession of reasonably suitable accommodation and as no issue hat been raised on that point by the trial court the Impugned decree should be eel aside and the suit should be remanded to the trial court with a direction to frame and try that issue after giving opportunity to the plaintiffs to amend the plaint. In this connection, the learned advocate for the appellant has referred to the second part of Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956, the issues framed by the trial court and the points for determination formulated by the first appellate court. He has also referred to the Bench decision in the case of Provash Chatterjee v Chand Mohan Basak 81 CWN 814 where it has been held that to succeed on the ground mentioned in Section 13(1)(ff) of the Act the plaintiff is required to prove besides reasonable requirement of the suit premises that he Is not in possession of reasonably suitable accommodation elsewhere and in the absence of proof of that fact the suit was remanded to the trial court

5 On the other hand the learned advocate for the respondents has referred to the pleadings in paragraph 4 of the plaint and paragraph 9 of the written statement and the evidence led by the parties on the question whether the plaintiffs have any other property in Calcutta for their residence and also the finding of the appellate court that the plaintiffs are in dearth of accommodation and are not in possession of reasonably suitable accommodation. The learned advocate for the respondents has also relied on the Bench decision in the case of K Basudevan Rao -vs- Jadu Nandan AIR 1977 Calcutta 142 in which it has been held that where the parties have adduced evidence and findings have been given by the trial court and the first appellate court by application of mind to the point whether the plaintiff is in possession of reasonably suitable accommodation, no injustice or prejudice has been caused and the question of amendment of the plaint does not arise

I find that although the plaintiffs have not in the plaint used the exact words of the second part of Section 13(1) (ff) of the Act that the plaintiffs are not in possession of reasonably suitable accommodation they have in effect and substantially taken the same plea in paragraph 4 of the plaint by stating that they have got no property In Calcutta for their residence except the property in suit. This plea has been denied by the defendant in paragraph 9 of the written statement, in evidence P. W. 2 the plaintiff No 2 has deposed that the plaintiffs have no other residential accommodation in Calcutta. In his crass examination a suggestion has been given to him on behalf of the defendant that the plaintiffs have four rooms In their occupation at 17, Bijoy Bose Road and P. W. 2 has denied that suggestion D. W. 2 the defendant has deposed that the plaintiffs reside at 17, Bijoy Bose Road as relation of the owner of that house and have three of the four rooms in their occupation. This testimony of the defendant has been challenged in cross-examination The owner of the house at 17, Bijoy Base Road has been examined as P. W. 1 Rent receipts Ext 1 series showing the extent of accommodation of the plaintiffs as ''''south side ground floor one room with kitchen'''' have been produced. There was also local inspection of the plaintiffs'' rented accommodation by a Pleader Commissioner. No doubt, no specific issue has been framed by the trial court on the question whether the plaintiffs are in possession of reasonably suitable accommodation But considering the relevant and admissible evidence oral and documentary the appellate court has came to the finding that the plaintiffs are not in possession of reasonably suitable accommodation.

7 It has been contended on behalf of the appellant that there is no plea or proof that the plaintiffs have no accommodation outside Calcutta. But having regard to the evidence that the plaintiff No 2 carries en business as a contractor in Calcutta, the plaintiff No. 3 is a service holder in Calcutta and their sister was Higher Secondary Examinee from a Calcutta School in 1975, the fact of the plaintiffs having the accommodation, if at all outside Calcutta is net material for deciding the suit as such accommodation even if they have any cannot be reasonably suitable.

In may view omission to frame an issue on the point whether the plaintiffs are in possession of reasonably suitable accommodation has not caused any prejudice to the parties or miscarriage of justice in the suit It has been held by the Supreme Court in Kameswaramma vs. Subba Rao AIR 1963 SC 834 that when the parties went to trial fully knowing the rival case and led all the evidence not only In support of the contentions but in refutation of those of the other side it cannot be said that the absence of an issue was fatal to the case or that there was miss-trial which vitiates the proceedings Similar is the view taken by the Supreme Court in the case of Kunju Kesavan Vs. M.M. Philip I.C.S. and Others, These cases have been followed In Abdul Razak Vs. Abdul Rahman, I therefore, held that the only point raised on behalf of the appellant to assail the decree cannot succeed

I may also mention that in view of the unchallenged finding of the appellate court regarding the extent of accommodation reasonably required by the plaintiffs their genuine need covers the entire suit premises comprising six rooms leaving no scope for formation of any opinion as to partial eviction to meet substantially the requirement of the plaintiffs u/s 13(4) of the Act. ( Swarnalata Bagchi and Others Vs. Kanta Bala Dass, ). In the result, I find that there is no merit in this appeal which is therefore dismissed. No order is made as to costs. The defendant is allowed time till 31st July. 1982 to vacate the suit premises.