Haraprosad Biswas vs Bamdeb Roy

G.N. Ray, J.—This appeal is directed against the judgment and decree passed by the learned judge, Ninth Bench of the City Civil Court, Calcutta, in Ejectment Suit No. 1027 of 1971. The Plaintiff Dr. Haraprosad Biswas, who is Appellant in this appeal filed a suit against the Defendant-Respondent Bamdeb Roy for eviction and recovery of khas possession of a room on the ground floor of premises No. 2B, Beadon Street, Calcutta, after determining the tenancy by a notice to quit and vacate. The ground for eviction pleaded in the plaint is reasonable requirement of the suit premises for use and occupation by the Plaintiff. The case of the Plaintiff Appellant was that he was a medical practitioner and he purchased the premises No. 2B Beadon Street, Calcutta, for his own use and occupation for the purpose of his residence, nursing home, dispensary and garage etc. The Plaintiff stated that he got a plan sanctioned from the Corporation of Calcutta for making substantial addition and alteration to the said building and before the purchase the Plaintiff had been living in a rented house at 23 Jadupandit Road, Calcutta, with the members of his family. The Plaintiff had his dispensary and a medical shop at 44/1 Nilmony Mitter Street, Calcutta and a garage at No. 39 Gouri Sankar Lane, Calcutta. The Plaintiff, further, alleged in the plaint that he had shifted to a portion, of the premises No. 2B Beadon Street, Calcutta, with some members of his family and had been residing in the second floor of the said premises. The Plaintiff for the purpose of his garage and dispensary required the room in occupation of the Defendant.

The Defendant contested the said suit by filing written statement, inter alia, denying the allegations made in the plaint. It was contended on behalf of the Defendant that the Plaintiff had enough accommodation in the premises No. 2B Beadon Street, Calcutta and the entire second and third floor of the said building and five rooms in the ground floor were in possession of the Plaintiff. It was also stated by the Defendant that the Plaintiff had enough accommodation at his premises No. 2B Beadon Street, 23 Jadupandit Road and 44/1 Nilmony Mitter Street, Calcutta and no more accommodation was required by the Plaintiff.

The learned Judge, Ninth Bench of the City Civil Court, Calcutta, dismissed the said suit on contest with costs, inter alia, on the finding that according to the pleading made in para, 5 of the plaint the Plaintiff required the room in question for converting the said room into a garage and the Plaintiff did not plead in the plaint that he intended to use the room in possession of the Defendant as dispensary. The learned Judge further found as the Plaintiff had already constructed a garage out of the room left vacant by one Kanailal Pramanik and the requirement of the Plaintiff for a garage had already been satisfied and the case admitted to be made by the Plaintiff at the time of trial that the Plaintiff required the room in the Defendant''s occupation for the purpose of using the same as dispensary could not be entertained as such case had not been pleaded in the plaint. The trial Court, further, found that the month of the Defendant''s tenancy was computed according to English calendar month and as the notice was given by the Plaintiff treating the month of tenancy of the Defendant as of Bengali calendar, the said notice was invalid, illegal and insufficient.

At the hearing of the appeal, Mr. Bagchi, the learned Advocate appearing for the Appellant, contended that the trial Court completely misconstrued the case of the Plaintiff as pleaded in the plaint and as proved at the trial by cogent evidence adduced by him. Mr. Bagchi contended that the Plaintiff wanted the room in occupation of the Defendant for his own use and occupation and he reasonably required the said room for the purpose of converting a portion thereof into the proposed garage and the other portion for his dispensary. Mr. Bagchi in this connection draws our attention to the pleading made in para. 5 of the plaint which is set out hereinbefore:

After the purchase of promises No. 2B, Beadon Street, Calcutta, the Plaintiff has shifted a portion of his family to the premises on the second floor of the premises and has got his nursing home on the first floor thereof. In the ground floor in the inside of the building he has one room which he uses as his chamber-cum-parlour-cum-office. Another room on the roadside is in possession of the Plaintiff which along with the portion of the room in occupation of the Defendant is to be converted into a garage according to the sanctioned plan. Some of the members of the Plaintiff''s family are still living at 23 Jadupandit Road, Calcutta and the Plaintiff is unable to shift his dispensary for want of accommodation. As such, the Plaintiff reasonably (requires the room in occupation of the Defendant for his own use and occupation.

Mr. Bagchi submits that it is quite clear and evident from the said pleading that the Plaintiff not only required the said room, for his garage but he also wanted to shift his dispensary in the premises and as such, the Plaintiff reasonably required the said room in occupation of the Defendant. Mr. Bagchi contended that the learned trial Court completely misconceived the scope and import of the pleading made in para. 5 of the plaint and erroneously proceeded on the footing that in the pleading the landlord only made out a case for requirement of the said room only for the purpose of garage and not for any other use or, to be more precise, for the use as dispensary. Mr. Bagchi in this connection referred to a decision of the Supreme Court made in the case of Bhagwati Prasad Vs. Shri Chandramaul, . It was held in the said decision that even if a plea was not specifically made but the same was covered by an issue by implication and the party knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleading would not necessarily disentitle a party from relying upon it if it was satisfactorily proved by evidence. It is pointed out in the aforesaid decision that what the Court was required to consider in dealing with an objection about the defect in pleading of a particular issue is to ascertain whether the matter in question was involved in the trial and whether the parties led evidence about it. Relying on this decision Mr. Bagchi submitted that although, as aforesaid, the pleading was quite specific about the requirement of the Plaintiff of the room in occupation of the Defendant both for the purpose of the garage and also for the purpose of shifting the dispensary and the defect, even if any, in the pleading for such requirement of dispensary was of no consequence in view of the fact that the parties knew that the said plea was involved in the trial and they led evidence in respect thereof. Mr. Bagchi drew our attention to the pleading made by the Defendant in his written statement wherein the requirement of the Plaintiff of the suit premises for dispensary and for garage was specifically disputed and the possession of the Plaintiff of reasonable accommodation on account of the dispensary in the other premises was specifically pointed out. So far as the invalidity and insufficiency of the notice for the determination of the tenancy is concerned, Mr. Bagchi pointed out that the Plaintiff''s positive case was that the tenancy was according to Bengali calendar month although the rent was realised according to English calendar. Mr. Bagchi submitted that it was never the case of the Plaintiff that the tenancy was according to Bengali calendar, but the same was subsequently changed according to English calendar month and the Defendant failed to prove that his tenancy, which was initially according to Bengali calendar month was subsequently changed by the Plaintiff into a tenancy according to English calendar. Mr. Bagchi, further, submitted that mere payment of rent according to English calendar did not ipso facto establish that the tenancy was according to English calendar month. Mr. Bagchi, further, contended that even assuming that the tenancy of the Defendant was subsequently changed into English calendar month, the notice in the form in which it was given by the Plaintiff was quite legal and valid. In this connection, it will be relevant to look into the actual language of the notice issued u/s 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act by the Plaintiff to the Defendant. It is stated in the said notice that the Defendant should quit and deliver to the Plaintiff khas possession of the said shop-room in the ground floor on the expiry of the last day of the month of Jaistha 1376 B.S. or alternatively at the end of the month of the said tenancy which will expire next after the end of the month from the date of the service of this notice. It was also stated in the said notice that the Defendant as a matter of convenience and by mutual consent had been paying rents according to English calendar month. To support this contention Mr. Bagchi referred to a Bench decision to this Court made in the case of Jatindra Nath v. Malai Ram AIR 1953 Cal. 353. It was decided in the said case that where a notice u/s 106 demanding possession in the alternative at the end of the tenancy which would expire next after 15 days from receipt of the said notice was given, such was quite legal and valid u/s 106 of the Transfer of Property Act. Accordingly, Mr. Bagchi contended that although as a matter of fact the tenancy was according to Bengali calendar month and it was determined by the aforesaid notice, the said notice was also legal and valid even if the tenancy was held to be according to English calendar month because of the language given in the notice.

Mr. Barun Kumar Roy Chowdhury, the learned Advocate appearing for the Defendant-Respondent, however, contended that the learned Judge was quite justified in holding that the case made out in the pleading of the Plaintiff was that the suit room was required for the purpose of garage and that requirement having been satisfied the new case sought to be made out by the Plaintiff at the trial, viz. the requirement of the suit room for the dispensary was not acceptable in law. Mr. Roy Chowdhury, further, contended that in any event the landlord having suitable alternative accommodation already in his possession for the use of a dispensary, was not entitled to claim any relief against the Defendant in view of the specific provision made in Section 13(1)(f) of the West Bengal Premises Tenancy Act particularly after the amendment of the said Act in 1969. Mr. Roy Chowdhury submitted that it would appear from the evidence adduced in the case that the Plaintiff landlord had in his occupation a very big room which was used by the Plaintiff as his chamber-cum-dispensary and the said chamber-cum-dispensary being quite close to the suit premises the requirement of the said small room for the purpose of dispensary was not permissible. Mr. Roy Chowdhury in this context drew our attention to a decision made in the case of Rajkumari Dutta v. Ashalata Debi and Ors. (1963) 68 C.W.N. 299. In the said case the requirement of the Plaintiff in the suit premises was initially found as the tenancy of the Plaintiff in the rented house had been determined and a decree for eviction was passed against the Plaintiff. But, subsequently, the said eviction decree having been set aside this Court held that in view of the said subsequent development the reasonable requirement of the Plaintiff was no longer in existence. Relying on this case Mr. Roy Chowdhury submitted that the Court must decide as to whether reasonable suitable accommodation was available to the Plaintiff at the time of decision of the case and if such reasonable suitable alternative accommodation is available to the Plaintiff in a rented house he is not entitled to get any decree for eviction against his tenant. Mr. Roy Chowdhury, further, contended that after the amendment of the West Bengal Premises Tenancy Act in 1969, the Court is bound to take into consideration the alternative reasonable suitable accommodation in possession of the landlord even in a rented house for the purpose of deciding the question of reasonable requirement of the landlord in respect of the premises in suit and the fact that the landlord himself is a tenant of a suitable alternative accommodation already in his possession is immaterial.

It will now be pertinent to consider whether the chamber-cum-dispensary in possession of the landlord at 44/1 Nilmony Mitter Street is a suitable alternative accommodation available to the Plaintiff landlord. We have considered the evidences on record and in our view, the said chamber-cum-dispensary at 44/1 Nilmony Mitter Street cannot be held to be a suitable alternative accommodation in possession of the landlord. The landlord is a medical practitioner and has purchased the premises No. 2B Beadon Street for the purpose of his residence and for starting a nursing home and chamber and dispensary there. The landlord now resides in the said premises and has also established a nursing home there. It is necessary not only for the convenience of the landlord but also for better and efficient management of the nursing home that his dispensary should also be located in the premises No. 2B Beadon Street and the dispensary at 44/1 Nilmony Mitter Street cannot be held to be a suitable alternative accommodation already available to the landlord. We are also of the view that in his pleading the Plaintiff landlord made out a case of reasonable requirement of the suit premises also for his dispensary and the finding of the trial Court that such pleading was not made in the plaint is not correct. We are also of the view that the parties knew that the case of reasonable requirement of the suit premises for dispensary was involved in the suit and they had led evidence in that regard and as such, the defect of specific plea, even if any, was of no consequence and Mr. Bagchi''s contention in this regard is accepted.

In view of our finding that the chamber-cum-dispensary at. 44/1, Nilmony Mitter Street is not at all a suitable alternative accommodation available to the landlord, it may not be necessary'' to go into the question as to whether alternative accommodation available to the landlord in his capacity as a tenant will be a bar to the said landlord in getting a decree on the ground of reasonable requirement in respect of a premises owned by him. But as the said question was argued at length by Mr. Roy Chowdhury we propose to consider the same. Mr. Bagchi in this connection refers to a decision of this Court made in the case of Pratap Brothers v. Dr. Haraprosad Nath 1974 (1) C.H.N. 123. My learned brother P.K. Banerjee J. held in the case that Section 13(1)ff) does not mean that if a landlord is in reasonable suitable accommodation in a tenanted premises, he cannot get a decree in respect of his own house and such interpretation of Section 13(1)(ff) will be unreasonable. It is true that by the West Bengal Premises Tenancy (Second Amendment) Act XXXIV of 1969, some changes were introduced in the original Section 13(1)(f) and the original Section 13(1)(f) was split up in two sections with some modifications, namely, Section 13(1)(f) and (ff). Section 13(1)(ff) deals with the question of reasonable requirement of the landlord for his own use and occupation and the expression "...and such person is not in possession of any reasonably suitable accommodation" has been added at the end of the amended Section 13(1)(ff). We are not oblivious of the fact that the West Bengal Premises Tenancy Act, 1956, was enacted and its amendments from time to time were effected to protect the tenants in various municipal towns of the State and other urban conglomeration notified by the State Government and on socio-economic consideration the Legislature has provided for suitable protection of the tenants in such areas against liberal rights of the landlord to evict their tenants under the general law of tenancy, namely, the Transfer of Property Act. But we do not think that in its anxiety to protect tenants against liberal eviction by their landlords, the Legislature really intends that a landlord will not get eviction against his tenant in a house owned by him although he satisfies that he reasonably requires the premises in occupation of the tenant for his own use, simply because he is in occupation of other premises as a tenant therein having sufficient accommodation in such tenanted premises. Such interpretation will mean that a man owning a house cannot come and reside there by evicting his tenant therefrom although he reasonably requires the same for his own use and occupation and the owner landlord, in that case, will be forced to remain as a tenant despite of his being owner of a suitable premises. It should be borne in mind that a landlord cannot ask for eviction of his tenant on the ground of his reasonable requirement unless he is an owner of the premises in question. In this connection, it will be profitable to refer to the observation of the Supreme Court made in the case of M. Padmanabha Setty Vs. K.P. Papiah Setty, since relied on by Mr. Bagchi. While construing Section 8(3)(a)(ii) of the Mysore House Rent and Accommodation Act, 1951 (Mys. XXX of 1951), the Supreme Court took into consideration the nature of accommodation a man has in a rented premises. The Supreme Court is of the view that a tenant though in occupation of a tenanted premises has no absolute right of possession therein but has only a right to remain in possession till the condition of his eviction under the appropriate Tenancy Act is fulfilled. It appears to us that the possession of a tenant is somewhat vulnerable and the tenant is in potential danger of being evicted from the tenanted premises under certain circumstances occurring then or in future and as such, possession as a tenant cannot be equated with the possession as a landlord. Considered from this aspect, due and proper weight cannot but be given to absolute ownership in deciding the question of suitability of an alternative accommodation available in a tenanted premises. There is no doubt that an accommodation held in absolute ownership has an edge over the accommodation available as a tenant. In this connection reference may also be made to a Bench decision of this Court made in the case of Sm. Tara Sundari Dassi v. Dukha Haran Mukherjee ILR 1976 Cal. 615 : 1975 (1) C.L.J. 316 : 79 C.W.N. 638. In that case, the alternative sufficient accommodation in possession of the landlord seeking eviction of his tenant was available in a house held by such landlord under leave and licence of another person. Although there was no threat of eviction of the said landlord by his licensor, their Lordships held that the said accommodation in possession of the said landlord cannot be held to be a suitable alternative accommodation. In our view, on the question of suitability of an alternative accommodation available to a landlord, the fact of such landlord being a licensee or a tenant in such accommodation hardly makes any difference in principle although there may be difference in degree on the aspect of potential vulnerability of such accommodation. Accordingly, we respectfully agree with the view taken in the case of Dr. Haraprosad Nath Supra. In our view, a landlord''s claim for eviction of his tenant from the house owned by him cannot be ipso facto defeated simply because at the relevant time he had reasonable sufficient accommodation in a tenanted house. Incidentally it may be pointed out that the question of suitability of an alternative accommodation in possession of a landlord may be quite germane where such land lord''s possession though not that of an owner may not be vulnerable or prone to potential danger of eviction by another person.

So far as the question of sufficiency and validity of the notice is concerned, Mr. Roy Chowdhury raised the contention that the notice in the alternative form could not cure the inherent defect and make the same valid and sufficient. Mr. Roy Chowdhury, further, contended that it was incumbent on the Plaintiff landlord to precisely state the date when the cause of action arose. In the instant case, the Plaintiff stated in para. 8 of the plaint that

cause of action arose at Calcutta within the jurisdiction of this Court under Bartola P.S. where the property is situated. It arose on the expiry of the month of Jaistha 1376 B.S. and from Ashar 1, 1376 B.S. or such date as may be found by the Court. Mr. Roy Chowdhury takes exception to the expression made in the last part of the paragraph and submits that the Plaintiff was not entitled to leave the date of cause of action to be determined by the Court, but he has to specify the same in the plaint. In this connection, Mr. Roy Chowdhury refers to a decision made in the case of Madras Steam Navigation Company Ltd. v. Shatimar Works Ltd. ILR (1914) Cal. 85. It was held in that case that it was imperative under Order VII, Rule 1(e) of the CPC that a plaint should contain the facts constituting the cause of action and when it arose. We have quoted para. 8 of the plaint and it is quite clear that the Plaintiff has given cause of action and also a specific date for the cause of action proceeding on the footing that the tenancy is according to Bengali calender month. Only in the alternative, it is stated that some other date may also be the cause of action if the Court comes to such a finding. On the materials on record and the evidences adduced in the case we are satisfied that the tenancy is according to Bengali calender month and as such, the notice is quite legal and valid and the cause of action given in the plaint is also in accord once with law. We may, however, add in this connection that even assuming that the tenancy was according to English calendar month, the notice in the alternative form was also quite sufficient and there has not been any violation of Order VII, Rule 1(e) of the CPC in view of para. 8 of the plaint. Accordingly, we are unable to accept the contention of Mr. Roy Chowdhury.

For the reasons aforesaid, the judgment and decree or the trial Court is set aside and the appeal is allowed and the suit is '' decreed. In the facts of the case, there will be no order as to costs. In the special facts of the case, however, we are inclined to grant time to the tenant Defendant to vacate the suit premises and we direct that the operation of the decree shall remain stayed upto May 1978 on condition that the tenant Defendant shall pay to the Plaintiff landlord or deposit in the trial Court at the rate of Rs. 14 per month, month by month, by the 15th of each succeeding month according to English calendar for use and occupation of the suit premises. The first of such deposit for occupation for the month of May 1977 will have to be made by June 15, 1977 and payment on account of occupation for the month of May 1978 will have to be made on or before May 15, 1978. In default of any of such deposit or payment by the Defendant tenant, the decree will be executable at once.

P.K. Banerjee, J.

I agree.