Chiranjilal Agarwalla vs Bandhuram Panwalla

P.N. Mookerjee, J.—This appeal is by the Plaintiff and it arises out of a suit for ejectment. On the plaint, as it stands, the suit appears to have been brought under the West Bengal Premises Tenancy Act, 1956, and, originally, the plaint contained only one ground of ejectment under that Act, namely, reasonable requirement for the Plaintiff''s occupation, including occupation for his business.

In the course of the proceedings in the trial Court, however the plaint was amended by adding also a ground of default.

The suit was contested by the Defendant, who denied the Plaintiff''s material allegations, namely, of Plaintiff''s reasonable requirement of the disputed premises and, also, of default. It was also part of the defence case that defaults, if any, had been waived by withdrawal of the amounts in question from the Rent Controller. There was also a plea that the notice of ejectment was not served upon the Defendant.

The learned trial Judge decreed the Plaintiff''s suit, overruling the defences and accepting, in substance, the Plaintiff''s case.

On appeal, the learned Subordinate Judge has come to the contrary conclusion, so far as the question of reasonable requirement is concerned and also the point of default, and has dismissed the Plaintiff''s suit.

Admittedly, there was no default in the payment of rent after the 1956-Act had come into operation. The defaults, sought to be made out in evidence, are all defaults prior to the 1956-Act. A question, therefore, naturally arose whether those defaults could be taken into account in the present suit, which, as I have already said, was, on the plaint, a suit under the 1956-Act. The learned Munsif held that pre-Act defaults were also relevant and, upon that view, the Plaintiff was found entitled to a decree for eviction on the ground of default also. The learned Subordinate Judge has come to a different conclusion. In his view, pre-Act defaults would not be relevant for purposes of the 1956-Act. There is a direct decision of this Court, reported in Rani Bala Devi v. Kamal Krishna Nath (1964) 69 C.W.N. 511, which supports the said view on the above point, taken by the Court of appeal below. True, there is an earlier decision, broadly to the contrary, of Chatterjee, J., in the case of Satyabrata-Roy v. Santosh Kumar Bose (1960) 65 C.W.N. 592. That, however, appears to be based, solely, or, at least, primarily, on a consideration of Section 17 of the 1956-Act. There are also other observations in the said judgment, which, prima facie, at least, may be open to comment.

Indeed, if I may say so with respect, there are considerable difficulties in treating pre-Act defaults as defaults under the new or 1956-Act and an acceptance of that position, that is, of the view of Chatterjee J., would lead to serious anomalies and may, to some extent, go against, or be in conflict with, the purpose of the new Section 40(2)(b) of the said 1956-Act, brought in by amendment. Be that as it may, in the instant case, the question of default has really no importance as, admittedly, the monies for the periods concerned were deposited with the Rent Controller by the tenant and were withdrawn by the Plaintiff landlord with the inevitable consequence that defaults, if any, were waived u/s 23 of the 1956-Act. If the pre-Act defaults are treated as defaults under this Act, they must also be subject to the rule or provision for waiver in respect of the same under the said Section 23 of the Act. In this view, I hold that the Plaintiff was not entitled to any decree for ejectment on the ground of default in the instant suit and the Court of appeal below was right in its conclusion on the point.

On the other question, namely, of reasonable requirement, the materials on record clearly point to the fact that the Plaintiff has only six permanent members in his family, that is, himself, his wife, mother, two sons and a daughter, and both Courts have, practically, found that, for those members, the two bed-rooms, available to the Plaintiff, would be sufficient. The learned Munsif, however, held that, as the Plaintiff had a sister, who was a regular visitor to the Plaintiff''s family on about four occasions in a year with her husband and children, she should also be considered in the matter of the Plaintiff''s reasonable requirement of accommodation and the learned Munsif, having found that the Defendant had other accommodation for his business, which he carried on in the disputed premises, held that, on principles of comparative advantage and disadvantage, the Plaintiff''s case of reasonable requirement should be accepted.

Apart from the question whether this line of approach would be permissible under the 1956-Act, it is difficult to hold that the sister, under the above circumstances, mayor should be regarded either as a member of the Plaintiff''s family or as a dependent on the Plaintiff or as a person, for whom the Plaintiff may be said to require an accommodation. If, then, the question of requirement of accommodation with regard to the sister does not arise, the question of reasonable requirement for the same purpose must be answered in the negative, that is, against the Plaintiff. The Plaintiff''s case of reasonable requirement also extends to requirement for his business. The evidence on the point, however, is extremely meagre and the learned Subordinate Judge has held that on the evidence such requirement has not been made out.

On the materials before me, I am unable to say that the said finding is, in any way, perverse or suffers from any infirmity, which will make it challengeable in second appeal.

In the above view, I hold that the Plaintiff has failed to make out a case of reasonable requirement of the Defendant''s premises for his occupation and, accordingly, his case on the point should be rejected.

In the premises, this appeal fails and it will be dismissed.

There will, however, be no order for costs, either in this Court or in any of the Courts below.

I must make it clear, further, that nothing in this judgment will prejudice the Plaintiff''s claim, if any, under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, read with Section 40(2)(b) of the West Bengal Premises Tenancy Act, 1956.