Sushil Kumar Paul vs Sri Bijoy Kumar Thakur

Prasenjit Mandal, J.—This second appeal is at the instance of the plaintiff/appellant and is directed against the judgment and decree of affirmation dated September 13, 2000 passed by the learned Civil Judge (Senior Division), 3rd Court, Alipore in Title Appeal No. 171 of 1995 thereby affirming the judgment and decree dated March 31, 1995 passed by the learned Munsif, 5th Court, Alipore in Title Suit No. 468 of 1987 for eviction. The plaintiff/appellant herein instituted the aforesaid suit for ejectment on the ground, inter alia, default, reasonable requirement, etc. in respect of the suit premises as described in the schedule to the plaint against the defendant/respondent herein. The defendant/respondent herein is contesting the said suit by filing a written statement denying the material allegations raised in the plaint.

Upon analysis of evidence on record, the learned Trial Judge dismissed the suit. The plaintiff/appellant herein preferred an appeal being Title Appeal No. 171 of 1995, which was also dismissed on contests. Being aggrieved by such judgment and decree, the plaintiff/appellant herein has preferred this second appeal.

At the time of admission of the appeal it was decided that this second appeal should be heard on the two following substantial questions of law:-

(I) For that even assuming though not admitting that any accommodation is available in the suit premises in the hands of the plaintiff appellant for starting a business for his son still then the learned Court below ought to have held that the said accommodation is not reasonably suitable for starting and/or carrying on any business as none of the rooms available to the plaintiff/appellant on the ground floor is situated on the side of the main road.

(II) For that non-availability of any accommodation is not sufficient to refuse to pass a decree for eviction on the ground of reasonable requirement in as much as the court while refusing to pass such a decree in required to find out as to whether the accommodation available is reasonably suitable or not for the purpose of which the landlord is seeking eviction.

Upon hearing the learned Counsel for the parties and on going through the materials on record, I find the substantial questions of law as framed are with the matter to be determined whether the Courts below have committed substantial error of law in not granting any decree of eviction on the ground of reasonable requirement by holding that the plaintiff has enough accommodation. On this matter the report of the learned Commissioner gets much importance.

It is pertinent to mention that at the appellate stage a Commissioner was appointed for holding local inspection and the learned Commissioner had submitted his report. He was also examined in the Court at the appellate stage and the plaintiff was also examined in support of his plaint case at that stage.

From the evidence of the plaintiff and the report of the Commissioner, it is not in dispute that the plaintiff possesses six rooms, three on the ground floor and three on the first floor. Beside the above six rooms, the plaintiff has two covered varandas/dalans and also an open courtyard. Out of the three rooms in the ground floor under the possession of the plaintiff, two rooms are being used as bedrooms and one room is being used as kitchen. Out of the three rooms on the first floor, one room is being used as bedroom, another room as thakur ghar and third room as storeroom by keeping the broken household articles. The plaintiff has wanted the shop room in question for starting a business of his son meaning thereby, the business has not yet been started.

As per materials on record, the son of the plaintiff got a training from the Bengal Chambers of Commerce for starting the business and as such, he wants a room for starting a business in plastic materials. It is also the contention of the plaintiff that he has no room to provide for starting of the business. The contention of the plaintiff is also that the rooms under his possession are not suitable for starting the business for his son.

While disposing of the appeal, the learned 1st Appellate Court has made a clear observation that the son of the plaintiff can start his business at the available room and he does not find the necessity to evict the defendant from his shop room for starting the business of the son of the plaintiff. The learned 1st Appellate Court has commented if the defendant is evicted from the room in question, his livelihood would be in jeopardy.

Anyway, the Court is to consider whether sufficient accommodation is available to the plaintiff or not. In this respect both the Courts below have held the concurrent views that the room available to the plaintiff is enough for starting a business or the son of the plaintiff and as such, both the Courts below have come to the conclusion that the plaintiff does not require the suit premises reasonably for own use and occupation. Such findings of the Courts below are based on evidence and so, they cannot be described as perverse at all. So far as, the reasonableness of the accommodation for starting the business is concerned, in my view, though the suit was filed in the year 1987 and the plaintiff adduced evidence also at the appellate state, I do not find any materials that the plaintiff''s son has started his business as yet.

On the basis of evidence, the learned 1st Appellate Court has observed that the son of the plaintiff can well start business at the available room. It is also the clear observation of the learned Appellate Court that the business can be started at any place and it depends on the experience and techniques of the plaintiff''s son.

At the time of filing of the suit and also at the time of deposition by the plaintiff at the appellate stage, the family of the plaintiff consisted of himself, wife, a son and a daughter. Admittedly, the shop in question faces the roadside, but, the nature of the business to be started by the son of the plaintiff is not clear and as such, it cannot be held that without any shop room by the side of the road, the business cannot be started. If the business to be started does not require regular customer for purchase and buy, there is no question of starting business on the roadside.

During the cross-examination of the plaintiff at the appellate stage, the ownership of the plaintiff in respect of the suit premises has been proved. It has also been proved that the plaintiff has got possession of one shop room which was let out earlier. He had demolished the said room for making ingress to and egress from his premises. He has also adduced evidence that there is a small plot of land lying vacant between the shop and his house and at present, a truck cannot enter through the gate. Not only that, one Mahadeb Das was also inducted in another room as his father was a tenant under him. The plaintiff has stated during the cross-examination that Mahadeb Das and another tenant left the premises. So, from such statement it is clear that had the plaintiff been eager to start a business in front side of the road, he could have started the business in any of the shops vacated by the two tenants.

During argument Mr. P.K. Roy, learned Advocate appearing for the appellant has referred to the decision of Smt. Anna Purna Shaw v. Sri Ananta Roy & Ors. reported in 2008(2) CLJ (Cal) 269 particularly the paragraph no. 10 at page 276 and thus, he has contended that the landlord is the best judge to decide his need and he has a complete freedom in that matter and it is not the concern for the Courts to dictate to the landlord as to how and what manner he should live or to prescribe him a residential standard of his own.

He has also referred to the decision of Prativa Devi Vs. T.V. Krishnan, particularly the paragraph no. 2 and thus, he has contended that the High Court cannot give any gratuitous advice which is uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property and thus, he has submitted that the findings of the learned Courts below as to reasonable requirement cannot be supported.

He has also referred to the decision of Amal Krishna Aditya Vs. Ganesh Chandra Das, particularly the paragraph no. 57 and thus, he has contended that if the requirement of the landlord is fulfilled by eviction of the defendant, the Court would not hesitate in passing a decree on the ground of reasonable requirement in favour of the landlord. Thus, he has contended that the Courts below have committed a substantial question of law in not decreeing the suit by holding that the plaintiff has been able to prove the requirement of the suit premises for own use and occupation.

He has also referred to the decision of Alok Biswas Vs. Amita Bose, and thus, he has contended that the plaintiff is the best judge for requirement and once it is found that he requires accommodation, a decree of eviction must follow.

During the course of argument, Mr. Aniruddha Chatterjee, learned Advocate appearing for the respondent has contended that the plaintiff got possession of two rooms more and he would file an appropriate application to that effect. Since the matter was fixed for further hearing on February 20, 2014 and no application has yet been filed, I hold that such prayer of the defendant/respondent cannot be taken into consideration. Such a prayer was rejected accordingly.

Having due regard to the submission of the learned Advocates of both the sides and on perusal of the materials on record, in my view, the Courts below have not committed any substantial error of law in dismissing the suit by holding that the plaintiff does not require the suit premises for own use and occupation. The concurrent findings arrived at by the Courts below, in my view, being not perverse, should not be disturbed at all. The substantial questions of law framed are thus, answered against the appellant and, in my view, this second appeal is totally devoid of merits.

Accordingly, the second appeal is dismissed.

Considering the circumstances, there will be no order to as costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.