Golam Karim. vs Sarifan Bibi and Others

Prasenjit Mandal, J.:

This second appeal is directed against thejudgment and decree dated December 15, 2005 passed by the learnedAdditional District Judge, 6th Court, Alipore in Title AppealNo.171 of 2003 thereby affirming the judgment and decree datedJuly 31, 2003 passed by the learned Civil Judge (Junior Division),3rd Additional Court, Alipore in Title Suit No. 2 of 1997.The original plaintiff instituted a suit being Title Suit No. 2 of 1997 for ejectment contending, inter alia, that the original plaintiff, Sk. Soleman was the owner of the premises in suit as described in the schedule of the plaint and the defendant was a monthly tenant under him in respect of that suit premises at a rental of Rs. 16/- per month payable according to English Calendar Month. The plaintiff sought for recovery of possession on the ground of default in payment of rent, guilty of causing nuisance and annoyance to the suit premises and causing damage to the suit premises. The plaintiff also required the suit premises for their own use and occupation and also for their family members. A notice of quit was served upon the defendant and he was asked to vacate the suit premises. The present plaintiffs / respondents herein are the heirs of the original plaintiff. The defendant contested the said suit by filing a written statement denying all the material allegations made against him by the plaintiff. He prayed for dismissal of the suit. The learned Trial Judge decreed the suit on contest without costs against the defendant. Being aggrieved, the defendant preferred an appeal and the said appeal was also dismissed on contest without cost. The judgment and decree under appeal was affirmed. Being aggrieved, this second appeal has been preferred

Upon hearing both the sides, the following substantial questions of law have been framed for decision in the second appeal:-

i) Whether the learned Courts below committedsubstantial error in law for not calling theoriginal challans which were admittedly in thecustody of the learned court below and Nazirkhanaas well in order to decide the genuineness of thexerox copies of the challans produced by thedefendant as proof of payment of rents in respectof the suit premises.

ii) Whether the learned Courts below committedsubstantial error in law in deciding the reasonablerequirements of the suit premises by the plaintiffson the basis of the evidence on record.

Thus, in the second appeal, the grounds of default and reasonable requirement are under consideration. So far as the ground of default is concerned, I find that the tenant / appellant filed xerox copies of certain challans contending, inter alia, that the original challans had been lost. The Courts below did not accept such contention and held that the tenant was required to show that they had paid or deposited rents properly in respect of the suit premises.

Mr. Debasish Roy appearing on behalf of the appellant has submitted that in fact, the tenant has filed an application under Order 41 Rule 27 of the C.P.C. for calling for the original challans which are lying in the custody of the Court and for directing the Nazirkhana to produce those challans for verification of the genuineness of the xerox copies of the challans produced by the appellant and as such, the necessary orders may be passed in this respect.

Mr. Debasish Roy has also contended that under the above circumstances, the suit should be remanded back to the trial court after setting aside the judgments and decrees of the Courts below. This is not a case of tendering new evidence nor is the situation that the tenant was beyond his control to produce the original challans in his possession at the time of trial. This application has been drafted in such a fashion and it has been made at the appellate stage only, I am of the opinion, with the sole aim to drag the matter for an unending period, at least, to a considerable period to defeat the claim of the plaintiffs. It will be a herculean job to produce those challans from the bundles of the respective months as prayed for and the reason for nonproduction of the original challans under the possession of the defendant / tenant being not satisfactory, I am of the view that the application under Order 41 Rule 27 of the C.P.C. as made out, cannot be allowed.

On the other hand, Mr. Sabyasachi Bhattacharya appearing for the respondents has submitted that it is the duty of the tenant to produce the original challans and if not produced, sufficient explanation should be given for non-production of the challans. The defendant has contended that those challans had been lost from the custody of the conducting lawyer. This is not enough explanation. He has also contended that it is the duty of the defendant to prove that he paid all the rents to get the benefits of Section 17(4) of the West Bengal Premises Tenancy Act, 1956. Mr. Sabyasachi Bhattacharya has referred to the decision of R.C. Tamrakar and Another Vs. Nidi Lekha, and thus, he submitted that the burden of prove lies upon the defendant that he has complied with the provisions of Sections 17(1) & 17(2) of the 1956 Act. Even if deposits are made, it will not be enough. But, it must be shown by the defendant that all deposits have been made in compliance with the requirement of Sections 17(1) & 17(2) of the 1956 Act. If it is not done, the tenant shall be treated as defaulter and liable to be evicted. Upon hearing the learned Advocates of both the sides on this matter, I find that it is within the specific knowledge of the defendant that he had deposited rents with the Court properly. Unless there is sufficient evidence in this regard, the secondary evidence could not be accepted.

Moreover, so far as calling for the challans from the concerned Nazirkhana, I am of the view that in order to bring those challans, there is a hazardous procedure for collection of the respective challans inasmuch as the challans are kept in separate bundles for each month in respect of different payments of different suits and those are kept in bundles month by month. So, it would be a hazardous job for the Court concern to produce those challans unless the dates of making payment by challans are specifically stated. Anyway, though the job is hazardous, it cannot be stated that it is impossible to produce the duplicate copy of the challans lying with the Court. Anyway, as per Section 101 read with 106 of the Indian Evidence Act, the defendant is required to take appropriate steps before the learned Trial Judge for production of the same. But, I do not find that such a recourse had been adopted for the purpose. The burden of proof of proper deposits of rent lies on the person desiring to give judgment as to any legal right. So, the burden of proof is on the defendant / appellant. But I find that he has failed to discharge such burden of proof. The step under Order 41 Rule 27 of the C.P.C. was taken at the appellate stage. I am of the view that it cannot be stated that the Courts below have committed substantial error of law in the matter. However, the suit was also for recovery of possession on the ground of reasonable requirement.

Since, I am deciding the ground of reasonable requirement in favour of the landlords for the reasons discussed below, the question of deciding the fact whether by production of the duplicate challans by calling for from the Office of the Nazirkhana of the Court, though hazardous, looses its importance for the time being. Anyway, it is held that the defendant has failed to discharge his burden of proof in this respect. So, the findings of the Lower Appellate Court as to deposit of rent are hereby supported. The substantial question of law on Point No. 1 is, thus, answered.

So far as the ground for reasonable requirement is concerned, I find from the evidence on record that after the death of the original plaintiff, his heirs have been substituted. The materials on record clearly show that the plaintiffs are the owners of the suit premises. Both the Courts below have held the concurrent findings in this regard. So, there is no dispute about this fact.

At present, there are nine plaintiffs. Both the Courts below have come to the concurrent findings that the plaintiffs are in possession of five rooms only. The report of the Commissioner lays down the sizes of the said five rooms and from such a report, I find that almost all the rooms are small in size, such as, to the extent of 10''10" x 12''3", 11 ft. x 9 ft., 10 ft. x 10 ft., 5''3" x 5''3" and 5''5" x 5''5". Thus, I find that the last two rooms are very small in size and they cannot be described or used as bedrooms. Anyway, one of such small room is being used as kitchen. So, in fact, the plaintiffs are in possession of three bedrooms whose descriptions are given above and these three bedrooms are not enough for reasonable requirement of the plaintiffs for the reasons discussed below. The other small room could at best be used as for storing household articles therein. Mr. Sabyasachi Bhattacharya, learned Advocate for the respondent has referred to the decision of Shakuntala Bal & ors. v. Narayan Das & ors. reported in AIR 2004 SCC 3484 and thus, he submits that the bona fide need of the landlords has to be examined on the date of institution of the proceedings and subsequent event on the death of the landlord is not relevant. He has also submitted that the concurrent findings arrived at by the Courts below based on evidence should not be disturbed and the plaintiffs / landlords have been able to prove that they are in bona fide need of the suit premises.

Mr. Bhattacharya has also referred to the decision of Ragavendra Kumar v. Prem Machinary & Co. reported in AIR 2000 SC 534 and thus, he submits that the landlord is the best judge to consider his requirement of the suit premises. This is now a settled law as to the suitability of the suit premises by the landlord.

The plaintiff No. 1 is the wife of the original plaintiff. She requires one room for herself. The plaintiff, Osman is married and he has one son and one daughter. At the time of recording evidence, the children were minor. By the lapse of time, they have become major. So, it is not possible for Osman to reside in one room along with his wife and the two grown up son and daughter. So, Osman requires at least three rooms for accommodation of the members of his family. Another son of the original plaintiff, namely, Sk. Mannan also requires one room for himself. Out of the six daughters of the original plaintiff, four daughters are married. The plaintiffs, Jaheda and Asma are still unmarried. So, they may be accommodated in one room. Sakina Bibi, another plaintiff though married, has been divorced by her husband and she has been residing with the other plaintiffs. So, she requires one room. The married daughters are likely to visit the father''s house and so, one room must be preserved for the rest three married daughters who are residing in their respective inlaws'' house. So, the plaintiffs require minimum eight bedrooms and a kitchen. I have stated earlier that the plaintiffs have five rooms in their possession in all but they have no kitchen as per Commissioner''s report.

This being the position, the plaintiffs require at least eight bedrooms of standard size and they also require one room for kitchen. But, as noted above, out of the five rooms, one room is very small and so, the present accommodation of the plaintiffs are not sufficient for the accommodation of all the plaintiffs. There is no material to show that the plaintiffs have any otheraccommodation elsewhere.

In view of the situation, I am of the opinion that both theCourts below have rightly observed that the plaintiffs reasonablyrequire the suit premises for their own use and occupation. So,there is no scope of interference with the findings on reasonablerequirement. The substantial questions of law on Point No. 2 is,thus, answered.In that view of the matter, I am of the opinion that thesecond appeal is bereft of merits and there is no scope ofinterference with the impugned judgment and decree. Accordingly,the second appeal fails to succeed.So, the second appeal is dismissed.Considering the circumstances, there will be no order as tocosts.

Urgent xerox certified copy of this order, if applied for, besupplied to the learned Advocates for the parties on their usualundertaking.

Later:

After delivering the judgment, the learned Advocate for the respondents submits that the lower Court records may be sent down at once through a special messenger at their cost.

The prayer stands allowed.

The respondents are directed to deposit the requisite costsin course of this day.(Prasenjit Mandal, J.)