M.K. Bhimani vs Keshab Chandra Basu

C.N. Laik, J.—Shri Keshab Chandra Basu, the Plaintiff No. 1 and Respondent No. 1 in these appeals (hereinafter stated as "Shri Basu" or Plaintiff No. 1 for the sake of brevity); is, as the record goes, a B.Sc. B.L. of the University of Calcutta, a practising Solicitor of this Court by profession and a sitting Councillor of the Corporation of Calcutta. Formerly, he was a Mayor of the City of Calcutta. He is at present the Speaker of the West Bengal Legislative Assembly. He is "very rich", say the Defendants. He is a man of "social status", says the learned trial Judge.

Shri Basu''s uncle, Shri Sudhindra Nath Basu (hereinafter stated as "Plaintiff No. 2" for brevity''s sake) is Plaintiff No. 2 and Respondent No. 2 in these appeals. As the record goes, he is a retired lawyer and was of no occupation.

After the Ezras, the Sasoons were stated to be the owners of the disputed property. After a trust was created by the Sasoons, Shri Basu and his uncle purchased, in the month of April, 1957, from the trustees of the said trust estate, the disputed premises, viz., No. 7, Loudon Street, in the city of Calcutta, containing an area of about 2 bighas of land "with a two-storeyed building together with several out-houses and a lawn".

On May 21, 1957, a notice to quit was issued and served on the tenant Shri Ellias, the Defendant No. 1, who is the Appellant in F.A. No. 102 of 1961 (hereinafter stated to be "the tenant" for the sake of brevity), directing him to vacate the premises, which he is occupying from 1937, on the expiry of June 30, 1957.

On July 24, 1957, the instant suit was filed by the Plaintiffs in the Court of Small Causes, Calcutta, for ejectment of the tenant on the ground of reasonable requirement of the Plaintiffs'' own use and occupation.

The tenant, besides denying the reasonableness of the Plaintiffs'' requirement for their own use and occupation, inter alia, denied the validity, legality and the sufficiency of the notice to quit. He further stated in his defence that he was occupying the first floor of the disputed premises but one Shri Bhimani was occupying its ground floor for about 20 years as his tenant.

On January 9, 1958, an application was filed by the Plaintiffs to the effect that Shri Bhimani should be added in the suit, only for its proper adjudication. The learned trial Judge allowed the body of the plaint to be amended as such. The original prayer, however, viz., for recovery of khas possession against the tenant only, remained unamended. Shri Bhimani was added as Defendant No. 2 (hereinafter stated to be "the sub-tenant" for the sake of brevity). The defence of the sub-tenant was also in the same line with the tenant. But he prayed for a declaration of a direct tenancy under the Plaintiffs.

Shri Basu was so long residing at his ancestral house being premises No. 30/6/2A, Madan Mitra Lane, Calcutta, (hereinafter stated to be "the ancestral house" for the sake of brevity). Within six months of the institution of the suit, he shifted to the premises No. 29/1, Ballygunge Circular Road. In the plaint, the office address of Shri Basu, being No. 8/2, Hastings Street, Calcutta, was given. The address of the Plaintiff No. 2 in the plaint is 20A, Sankaritolla Street, Calcutta, which is supported by his answer to the interrogatories that "he has no fixed residence in Calcutta or elsewhere and he is putting up at No. 20A, Sankaritolla Street, Calcutta", the inspection of which was disallowed by the learned trial Judge on the ground that the said premises belongs to the Plaintiff No. 2''s son-in-law.

Though Shri Basu did not state anything in the plaint about his being the owner of any other house in Calcutta, it came out, during the progress of the suit, that besides being a co-owner in the ancestral house, which is a "south facing, well-built, well-kept three-storeyed building" according to the Commissioner, (who inspected it after being appointed for local investigation in the suit), he is also the owner of three premises viz., (a) No. 13, San Yet Sen Street, (b) No. 4/1/1A and (c) No. 4/1/IB, Hem Kar Lane, Calcutta--both the last two premises being three storeyed and adjoining. The Commissioner recorded in his report that another house viz., 33/6/1, Madan Mitra Lane, adjacent to the ancestral house, was at first stated to be the joint property of Plaintiff No. 1 and his brothers, but afterwards his brother stated that "he was not definite about the same". When deposing, the attention of the tenant was drawn, on behalf of the Plaintiffs to the fact that the premises No. 77, Hazra Road, does not belong to Shri Basu but to Dr. Amar Nath Mukherjee, formerly a Deputy Mayor of the City of Calcutta. The Plaintiffs'' ownership of the vacant land, adjoining the premises at Hem Kar Lane was also denied.

The Commissioner inspected the two premises at Hem Kar Lane and it was recorded that the second floor of the same (being two portions, of the same building) was vacant. The ancestral house was also inspected and a report was submitted on December 17, 1958 (Ex. A), giving measurements. He observed that the measurement of all the rooms in the ancestral house could not be done, according to the writ of commission, as the "Plaintiffs expressed their inability to arrange for inspection of the same".

Regarding the two ex-premises at Hem Kar Lane, his report inter alia was that, in the said three-storeyed old buildings, additions and alterations, besides extensive repairs as also rebuilding works (specially on the second floor), had been and were being effected. Both the premises were reported to be tenanted.

The report regarding premises No. 4/1/1A, Hem Kar Lane, is, inter alia, as follows:

Out of the four rooms in the ground floor, the Commissioner could give measurement of three only. He could not measure the fourth room being locked up. On the first floor, there are 4 rooms. It is stated that the second floor contained two rooms with attached dalan and verandah measuring 39''-2" � 2''-11" covering the entire length of the adjoining premises No. 4/1/1B, as well, there being no demarcation between these two premises on the floor. The measurement of the two rooms together with the two privies and the covered spate of the dalan is recorded.

Regarding accomodation in the premises No. 4/1/1B, Hem Kar Lane (which is also similarly three-storied), it appears that, in the ground floor, there are two rooms besides the covered passage, bathing space, latrine and two blocks of open space. On the first floor, one room, one kitchen, a covered passage and a privy were recorded. On the second floor, the rebuilt room with a covered verandah has been noted.

Regarding the accommodation in the ancestral house it is recorded that in the ground floor there is a room measuring 23''-4" � 8''-11" with mosaic and patent-stone floor, which was being used "as a sitting-room-cum-study, with 2 secretariat tables, 5 chairs and a telephone". There are 2 other rooms, besides the servants'' room and a covered passage and the space under the staircase. There is also a kitchen, a "coal room", a pump room and the inside courtyard. Another room was closed, the inside measurement of which could not be taken. In the second floor, besides the three rooms, there are open terraces consisting of different portions besides the bath rooms and the verandah, adjoining the northernmost room. In the first floor, out of the eight rooms with attached verandahs three rooms could not be measured, "the Plaintiffs expressing their inability to arrange with the occupants (co-sharers) for the inspection of these three rooms".

The tenant gave the following evidence as to the accommodation in the suit premises:

Upper floor : one hall, one dining-room, three bed-rooms, one library-room, one dressing-room, one box room, three bathrooms, one pantry, one kitchen and one staircase with landing.

Ground floor : one hall, one dining-room, three bed-rooms, three bath-rooms, one pantry, one small room called visitors'' room, one electric meter room and one dressing-room.

Objections were filed by the Defendants, challenging the Commissioner''s Report including the accuracy of the measurement in all the premises. It is also objected that the full measurement of the premises, required to be done under the writ, could not be taken by the Commissioner, as many of the rooms were being kept under lock and key by the Plaintiffs. It was also stated that the Commissioner did not take into account any portion of the premises owned or possessed by the Plaintiff No. 2; and that he did not also take into account and measure the premises at Sun Yet Sen Street. Therefore, it was prayed that the Commissioner''s report should not be accepted being incomplete and not comprehensive. On this, the learned trial Judge passed an order on January 13, 1959, that the said objections would be considered at the time of the hearing of the suit.

The case was opened on April 24, 1959 and oral evidence was adduced and the only witness on behalf of the Plaintiffs was Plaintiff No. 1. He filed two rent receipts (Exs. 2 and 2A) on that very day, purporting to prove that Sm. Lilabati Dutt is the owner of the premises No. 29/1, Ballygunge Circular Road and that he is her tenant on payment of Rs. 400 as monthly rent.

Sri Basu also deposed that Plaintiff No. 2 has no fixed residence at Calcutta; he lives mostly at his house at Hazaribagh and when he comes to Calcutta, he resides with him and other relatives. He further states "I shifted to my house at Ballygunge Circular Road." (Paper Book in F.A. 102 of 1961 p. 42 1. 2). The ancestral house belonged to him and 7 other brothers and he purported to leave the same for want of accommodation and also because he was not on good terms with his brothers and their family members. He admitted that both the premises at Hem Kar Lane and San Yet Sen Street belonged to him but all of them were tenanted.

According to him, the accommodation on the first floor of the disputed house is three bed-rooms, one hall, one covered place used as a dining room and three small rooms. Accommodation is the same in the ground floor. There is also an out-house for servants. It is slightly discrepant with the tenant''s evidence.

As to his family members, Plaintiff No. 1 deposes that the same consists of himself, his wife, 3 unmarried daughters and one son, besides a married daughter. He also states that his eldest brother''s childless widow lives with him. He did not say specifically that she was "dependant" on him but he states that the youngest widowed sister, who is also childless, lives with him as dependant. The son and daughter of his deceased second brother are also stated to be his dependants, who live with him. He had two Darwans, one Mali, three servants, two maid-servants, one cook and one driver.

As to the family members of the Plaintiff No. 2, he has only one married daughter.

About his requirement for accommodation, Plaintiff No. 1 states that, as he is a Solicitor by profession, he requires one office room, one sitting room, one library room and at least, seven bedrooms and two kitchens, two pantries, one drawing room for the ladies, one dining room and servant''s quarters. Two rooms were stated to be required for the study of his daughters and son, they all being students. He also requires a Thakur-Ghar. In his ancestral house, which had 16 rooms, he was in occupation of two bed-rooms, one covered verandah, two common parlours and therefore, he felt much difficulty for want of accommodation there. As to the accommodation in the Ballygunge Circular Road house, in which he is residing at present, he states that he has two bed-rooms, one hall, one covered verandah, one big lawn, one pantry, two kitchens and servants'' quarters. He felt the necessity of shifting elsewhere from his ancestral house about 4 and 5 years before (i.e., 1954-1955). He also stated that he could not shift to the Ballygunge Circular Road house earlier for various reasons.

He admitted that his widowed sister-in-law (stated to be a dependant) has share in the ancestral house. His nephew and niece (stated to be dependants) have also shares in the ancestral house. Three of his brothers are dead. He admitted that his sister Sm. Chhabirani Dutta purchased a house which was then under repairs, but he denied that she was either a Benamdar or related to Sm. Lilabati Dutta. He further admitted that his wife is the owner of a house at Chandra Chatterjee Street, Calcutta, but the same was tenanted. He admitted that the two rooms on the second floor of the premises No. 4/1/1A, Hem Kar Lane, were then under repairs.

The tenant (Defendant No. 1) deposed on commission. The sub-tenant (Defendant No. 2) also deposed. Three other witnesses were examined on their behalf.

On May 11, 1959, three applications were filed by the subtenant. When the cross-examination of Sri Basu was going on, a prayer was made for allowing him to put certain questions and to have the same evidence recorded. The learned trial Judge rejected the two applications on the ground that they were not relevant to the suit. As the answers of the questions contained in the third petition had already been recorded in evidence, the same was directed to be kept on the record.

On May 26, 1959, an application was filed by the Defendant No. 2, in which it has been stated that Sri Basu was elected as a Councillor from the constituency where his ancestral house at Madan Mitra Lane is situate and he is still a Councillor from the said Constituency. The name of Sri Basu appears in the voter''s list, from which it would be proved that he is still a resident of the said premises. It was also submitted that, on the date of hearing, i.e., long after the institution of the suit, the Plaintiffs filed two rent receipts purported to be granted by the said Sm. Lilabati Dutta who was a Benamdar of Sri Basu. The receipts being stated to be manufactured, the examination of Sm. Lilabati Dutta was necessary. Therefore, it was prayed that (a) the Corporation of Calcutta be directed to produce nomination paper of Plaintiff No. 1 and the voter''s list of the year 1957 of the constituency in which the ancestral or constituency house is situate, (b) to allow the examination of Sm. Lilabati Dutta, the alleged landlady of the present residence of Sri Basu, (c) have the said premises No. 29/1, Ballygunge Circular Road and the constituency house inspected personally by the Court. The learned trial Judge summarily, there and then, rejected the said application on the ground of being a belated one. He also noticed that the Petitioners got sufficient time to confront the Plaintiff No. 1. The learned Judge then observes that he is under an order of transfer and the judgment is almost dictated. The application is, therefore, nothing but frivolous and mala fide and the same could not be entertained.

The learned trial Judge decreed that suit.

On the point of notice to quit it was held to be valid. The service of the same was also found to be proper.

On the point, whether the Plaintiffs reasonably require the suit premises, the learned Judge proceeds to judge the requirement of Plaintiff No. 1 in the background of several factors viz., a practising Solicitor, a sitting Councillor, the Speaker of the Assembly and a former Deputy Mayor. The background of his being a "very rich man" and that he has a status and position in the society, also deeply impressed the learned trial Judge. The background of the reason for the Plaintiff No. 2''s requirement is that he is a retired lawyer and he ordinarily lives in the Hazaribagh House of his nephew.

According to the learned trial Judge, Plaintiff No. 1 was compelled to shift to his'' present residence at 29/1, Ballygunge Circular Road, as the accommodation in the ancestral house was quite insufficient which is a strong ground for ejectment. Further, as to his statement that he was not in good terms with the other co-sharers and their family members, the learned Judge observes that the absence of good feeling amongst the co-sharers cannot also be lightly brushed aside. He rejects the argument that the suit is a mala fide one, calculated to create evidence for the purpose of establishing a case of reasonable requirement.

As to the several houses belonging to Sri Basu, the learned trial Judge finds that he owns three other houses, i.e., two at Hem Kar Lane and one at San Yet Sen Street, besides the disputed premises and his ancestral house. In the absence of evidence, contrary to that of Sri Basu, the learned Judge finds that all the three houses are in occupation of the tenants. Sri Basu''s wife, being the owner of a house at Chandra Chatterjee Street, was also noticed by the learned Judge; but according to him, the said house does not come into the picture at all so far as the Plaintiff''s claim of reasonable requirement was concerned.

About the accommodation in his ancestral house, Sri Basu''s 1/8th share in the same and possession of separate portions by the co-sharers was noted. The learned trial Judge also noticed that Sri Basu occupied two bed-rooms, one covered verandah and two parlours which were common to all the joint owners. The learned Judge found that two bed-rooms were wholly insufficient for his accommodation. Instead, it is held that Sri Basu requires one bed-room for himself and his wife, one bed-room for his son and nephew, one bedroom for his three daughters and niece, one bed-room for his widowed sister and widowed sister-in-law, i.e., 4 bed-rooms in all so far as he is concerned, though he deposes that he requires at least seven bedrooms. The learned Judge also found that the Plaintiff No. 2 required one bed-room. Therefore, 5 bed-rooms in total are held to be required for the accommodation of both the Plaintiffs according to the learned trial Judge. Moreover, one study room for the boys and another study room for the girls, one sitting room and one office room besides kitchen, dining room and Thakur-Ghar are held in favour of Sri Basu''s requirement.

The learned Judge after rejecting the defence contention also holds that the widowed sister and the widow of his elder brother and the widowed sister-in-law and nephew and niece are also members of Sri Basu''s family, although it was noticed that they have their separate shares in the ancestral house along with Sri Basu. The view of the learned Judge was that the fact that these persons have interests in the ancestral house does not go to show that they are not his dependants for maintenance, protection, etc. The reasoning of the learned Judge was that it had riot been proved that these persons had separate incomes on which they could live independently without any help from Sri Basu. The learned trial Judge, therefore, concluded that those persons should be taken into consideration for the purpose of ascertaining the extent of Plaintiffs'' accommodation.

As to the accommodation for the widowed sister of Sri Basu, though it was noticed that she had purchased a house, which was under repairs and lying vacant, yet the learned Judge thought that she was also Sri Basu''s dependant because the meaning of the word "dependant" includes "physical protection and also moral guidance". The reasoning of the learned trial Judge is that the fact that she is the owner of a house, only shows that the childless widow has made a provision for her future in case she finds it difficult to continue to live at the house of her brother.

About the accommodation in the disputed premises, which is a two-storeyed building, with out-houses, the learned Judge is of the view that the big halls on the first and on the ground floor cannot be used as rooms, for the reason that all the rooms on the first and the ground floor (wrongly stated to be second) have openings in the halls and are accessible through the halls. The learned trial Judge, therefore, concluded that the entire premises in suit would be required for the Plaintiffs. The learned Judge also held that the sub-tenant (Defendant No. 2) was not entitled to any protection against eviction. The suit was thus decreed against both the Defendants.

Against the said decree, two appeals have been preferred to this Court. F.A. No. 101 is by the sub-tenant (Defendant No. 2). F.A. No. 102 is by the tenant (Defendant No. 1). Both the appeals were heard together by us. One of the points in both the appeals related to the interpretation and construction of the provisions of Section 13(6) of the West Bengal Premises Tenancy Act, 1956, bearing on the question of the nature and content of the notice to quit. On the prayer of the learned advocates, both the appeals were referred to the learned Chief Justice for being heard by a Special Division Bench for determination of the point of law with regard to the sufficiency of the notice.

On June 19, 1963, the Special Bench consisting of the learned Chief Justice Hon''ble H.K. Bose, Bachawat J. (as his Lordship then was), Sinha J., my learned brother and G.K. Mitter J. disposed of the Reference along with another Reference in the case of Abdul Samad Bepari Vs. Manasha Charan Bakshi, .

The learned Chief Justice held that, in accordance with the opinion of the majority, the answer to the question in the Reference, arising out of the present two appeals, will be the answer given in his judgment in the said reference of Suraya Properties.

The answer to the question No. 2, which is relevant for our present purpose, is as follows:

A notice as contemplated u/s 13(6) is essentially a notice of the suit. Where it was necessary to serve a notice to quit u/s 106 of the Transfer of Property Act, it is still necessary to serve it. A notice u/s 13(6) may be combined with a notice u/s 106 but the period of such combined notice shall not be less than a month expiring with a month of the tenancy. There is no prescribed form of such a notice. It is not necessary to mention in a notice u/s 13(6) the ground or grounds of ejectment for which a suit is to be instituted for recovery of possession. There is however nothing to prevent the landlord from setting out such ground in the notice. The notice, however, will not be a notice of such grounds.

According to the learned Chief Justice, the notice u/s 13(6) was neither intended to be a notice to quit (see 67 C.W.N. 982 left-hand column), nor a notice to quit (984), but is essentially a notice of suit, though partaking of a nature of a notice of suit and of a notice to quit (at p. 982 right-hand column). According to Bachawat J. (as his Lordship then was), the notice u/s 13(6) is a condition precedent to the right of the landlord to file a suit (at p. 986 left-hand column); it is not a notice to quit; it is a notice of suit or proceeding (at p. 986 right-hand column).

Bachawat J. further held that the notice sufficiently complies with the requirement of Section 13(6), if, "by express words or necessary intendment it conveys to the tenant, presumably conversant with the facts and circumstances of the case, the information that the landlord intends to file a suit or proceeding for recovery of possession of the premises on any of those grounds on the expiry of the period of the notice" (at p. 986). The word "presumably", underlined above, is not there in the answer given by his Lordship at p. 987. Bachawat J. did not also state whether he concurred with the opinion of the learned Chief Justice.

According to Sinha J., a notice u/s 13(6) is more consistent with the idea of a notice to quit than a mere notice of suit (at p. 994 left-hand column), but at p. 995 it is held that a notice u/s 13(6) might, in certain cases, partake of the nature of a notice to quit--"A notice u/s 106, partakes of the nature of a notice to quit although in essence it is a notice of suit"--finds the learned Judge in the same page in the left hand column. He further holds that "a notice u/s 13(6) upon a statutory tenant cannot strictly be called a notice to quit as understood u/s 106 of the Transfer of Property Act" (at p. 995 right-hand column). "In the case of a statutory tenant it operates as a notice of suit", says the learned Judge again at p. 995. He ultimately agrees with the answer to Question No. 2 given by the learned Chief Justice (p. 1002).

My learned brother held "that the, notice u/s 13(6) is a notice of suit and not a notice to quit or a combined notice, answering both the above descriptions or purposes" (p. 1003).

Mitter J. held that Section 13(6) "does not lay down in clear terms what intimation the notice would give but there can be little doubt that it must at least indicate to the tenant that a suit will be filed against him. It does not obviate the necessity of giving other notices for success in the suit" (p. 1020). The argument that the notice u/s 13(6) replaces the notice to quit under the Transfer of Property Act, was not accepted by Mitter J. (p. 1021) Section 23 as well as Clause (j) of Section 13(1) go to show that the legislature had not meant to do away with notices to quit (p. 1022). Section 106 and Section 111 of the Transfer of Property Act do not stand repealed by implication (same page, right-hand column). He concurred ultimately with the answer given by the learned Chief Justice (p. 1027).

On the point of the possibility of a combined notice, both u/s 13(6) of the West Bengal Premises Tenancy Act, 1956 and also u/s 106 of the Transfer of Property Act and as to the period thereof, the learned Chief Justice was of the view that such combined notice was possible. The learned Chief Justice held that the notice u/s 13(6) of the Premises Tenancy Act is to be given in addition to the notice contemplated in Section 106 of the Transfer of Property Act, in cases, where Section 106 is attracted (p. 982). A combined notice is also possible in one document, but the period must not be less than one month and the said one month''s notice must again expire, or be made to expire, with the month of the tenancy.

Bachawat J. held that the notice u/s 13(6) is not in lieu of a notice u/s 106 of the Transfer of Property Act. His Lordship could not agree with the contrary view expressed in Jasoda Jiban Saha (P.) Ltd. Vs. S.K. Chatterjee and Another, . The provisions of Section 106 or Section 111 of the Transfer of Property Act are not abrogated by a notice u/s 13(6) of the Premises Tenancy Act. According to him, 6 months'' notice u/s 106 of the T.P. Act is still required to be given to determine a lease for manufacturing purpose. This is the view of Mitter J. also. Bachawat J. further held that a combined notice is possible and they may be effectively given by a single document. This is also Mitter J.''s view.

According to Sinha J., a notice u/s 13(6) can be easily combined with a notice to quit u/s 106 of the Transfer of Property Act in the case of contractual tenants (p. 993). According to him, neither a notice to quit nor a notice of suit was necessary in the case of statutory tenants. Sinha J. also held that both the notices can be combined in one document.

My learned brother held that a notice u/s 13(6) "is a notice required in addition to and not in lieu of the notice u/s 106 of the Transfer of Property Act, where this latter notice is otherwise necessary. The two notices, however, may be combined in one and the same document and may expire or may be made to expire simultaneously" (p. 1003 right-hand column).

Mitter J. did not accept the contention advanced on behalf of the tenants that a notice to quit under the Transfer of Property Act could not be combined with a notice u/s 13(6). He also held that the two notices can be given by the same document so as to expire with the end of a month of the tenancy (see p. 1027).

It might be stated that Mitter J. also held, on the same page, that there is no bar to "a landlord''s giving an oral notice" though it might be "very difficult to prove and would unnecessarily prolong litigation". According to Sinha J. also, Section 13(6) "does not require a notice to be in writing" (p. 999 left-hand column), particularly upon a statutory tenant. The learned Judge proceeds to say, in the same page, that where a notice is not in writing, there is no question of its service, which is then to be "communicated and not served".

On the question whether grounds of ejectment need be stated in the notice u/s 13(6), the learned Chief Justice holds that "it is not essential to state the grounds of default in the notice to quit as contemplated in Section 23" (p. 984 left-hand column). It is held, further down, that there is nothing in Section 13(6) which makes the stating of the grounds in the notice imperative, though this may be a desirable state of affairs. According to the learned Chief Justice, "If from other correspondence passing between the parties or from surrounding circumstances it appears that the notice to quit which was given is referable to the ground of default, that is sufficient" (same p. 984). But in giving the answer to Question No. 2, quoted in full earlier, the learned Chief Justice, inter alia, stated at p. 985, "There is however nothing to prevent the landlord from setting out such ground in the notice. The notice, however, will not be a notice of such grounds". This portion of the answer does not, however, appear in the body of the judgment of the learned Chief Justice, but appears in the body of the judgment of Sinha J. when he held, at p. 997, "I think that in a notice u/s 13(6) no grounds need be given, although there is nothing to prevent the landlord setting out the grounds if he wishes to do so. Such a notice will however not be a notice on such grounds."

Bachawat J. held at p. 987-88 that "the notice sufficiently complies with the requirement of Section 13(6), if, by express words or necessary intendment, it conveys to the tenant, conversant with the facts and circumstances of the case, the information that the landlord intends to file a suit or proceeding for recovery of possession of the premises on any of those grounds on the expiry of the period of the notice. A notice which gives this information is sufficient and it is not necessary that the notice should mention the particular ground or grounds on which the suit or proceeding will be instituted".

My learned brother pointedly differed on this aspect and held, at p. 1003, that the notice u/s 13(6) must express the intention to file the suit or proceeding, mentioned in the section that is, a suit or proceeding for ejectment on a ground or grounds, as mentioned in the section and necessarily, therefore, must mention the said ground or grounds so as to be a notice thereof, that is, of the ground or grounds too, on which the intended suit or proceeding is proposed to be brought. In other words, expression of the above intention and mention of the above ground or grounds would be necessary,--and sufficient also--to validate the said notice and would constitute its essential requisites or contents".

Mitter J. found at p. 1024: "it is not possible to hold that the tenant should be informed of the ground for eviction in the absence of clear words to that effect" in Section 13(6) of the Premises Tenancy Act, 1956.

On the point as to whether in the case of leases for manufacturing purposes it is at all possible to comply with the requirement of Section 13(6) in so far as it enjoins the giving of a month''s notice expiring with a month of the tenancy, the learned Chief Justice answered the same in the affirmative (p. 983 left-hand column top). There is no difficulty to the learned Chief Justice in giving one month''s notice expiring with a month of the tenancy in cases of leases for manufacturing purposes and "it may be possible in appropriate cases to combine the notice to quit and the notice of suit contemplated in Section 13(6) in one document in such manner as to make the one month''s notice expire with the expiration of the year of the tenancy in case of manufacturing leases and in case of other tenancies, with the month of the tenancy" (same Page).

Bachawat J. held at p. 987 that the "landlord wishing to determine a lease for manufacturing purposes is still obliged to give six months notice expiring with the year of the tenancy in accordance with Section 106".

Sinha J. held that, "In the case of a tenancy for manufacturing purposes the terminus ad quern would be the same u/s 106, as u/s 13(6). All that Section 13(6) postulates is that the period of a notice shall not be for less than a month. A six months notice given u/s 106 may be made to satisfy this condition" (p. 998 right-hand column top). According to him "all kinds of tenancies have been lumped together" under the West Bengal Premises Tenancy Act and "an ad hoc period of time has been postulated". Sinha J. further held that Section 13(6) "merely varies the period of the notice". The position was later summed up as follows: "in a case where Section 106 applies and it is combined with a notice u/s 13(6), such a notice must satisfy the provisions of Section 106, save and except that the period of notice must in all cases be not less than one month expiring with a month of the tenancy" (see p. 999).

My learned brother held at p. 1009 that it was absurd to think that "leases for fixed periods--whatever their term--manufacturing leases, so long requiring six months notice as a policy of law--a policy, founded on reason, commonsense and experience--would all terminate on the month''s notice u/s 3(6)" and rejected the argument to the contrary.

Though the point was not answered by Mitter J. as the same was not covered by the reference (see p. 1022), but in his Lordship''s view, Section 13(6) "was not aimed at disturbing the rights under such leases" (same page). The reasoning, given by Mitter J. on the next page, is "that the legislature may well have thought that no special provision for regulating the incidents of a manufacturing tenancy was called for".

Mr. Alak Gupta (when his Lordship was at the Bar) followed by Mr. D.P. Choudhury, appeared and argued on behalf of the tenant Appellant i.e., in F.A. 102 of 19�1. Mr. Rabindra Nath Bhattacharyya, argued on behalf of the sub-tenant Appellant i.e., in F.A. No. 101 of 1961.

Mr. Pramatha Nath Mitra argued on behalf of the landlords Respondents in both the appeals. All the learned Advocates were bitter in their criticism, at least in one respect, viz., as to the magnitude and the volume of the judgments, in which a mass of jurisprudential complexities has been poured in, causing bewilderment not only to the litigants but also the members of the Bar. So far as I remember, possibly it is the first Special Bench out of about 300 Full Bench and Special Benches of this Court where separate opinions of all the learned five Judges in the same case were pronounced.

It was argued that the allurement for over-refinement raises, oftener than not, knottiest problems. It is further argued that the use of the connotative nomenclature expressed by the words like "contractual", "statutory" or express tenancy might have been avoided. They say that there is no difference between "statutory" tenant and a courtesy tenant with courtesy rights and obligations, as if the law-framers were busy to conjure up the case of a statutory tenant before their eyes and to legislate for them. The Premises Tenancy Act of 1956 did not get itself interested, according to them, in the legal curio of the English Rent Restriction Acts. The main judgments proceeded as if the said two tenancies are of different legal concepts. The question, posed by the Special Bench, was whether or how far the doctrine of frustration of termination of tenancy by continuity in possession applied.

In criticising the views different learned Judges separately, it is also, inter alia, argued that Bachawat J., felt the necessity of an information of an intended ejectment suit on any of "those" grounds being given, but laid down that the said information could be given by necessary intendment or by implication. The word "those" implies that the grounds have been mentioned, specified or at any rate, indicated before. Then again, the notice u/s 13(6) was considered to be sufficient, if it conveys the information to the tenant, "presumably conversant with the facts and circumstances of the case." Presumption of being conversant with the facts and circumstances of the case, which are seldom uniform, add an element of poignancy to the sense of dubiety and disappointment.

The learned Judge again said, the requirement of the special notice is "superimposed" upon the requirement of the general law etc. Superimposition is known as a method of detecting comparative magnitude of legal matters but the process of mounting of one thing upon another, as a means of piling, heaping or multiplying jural concepts is something not quite agreeable to the power of digestion of the lawyers. Lastly, attribution by the learned Judge to the law-framers of a course of logic, which the law-framers themselves clearly disavow, is contrary to all canons of interpretation.

It is also argued that Sinha J., inspired by Megarry''s Book on the English Rent Acts, though he well ransacked the same and gathered the references from his laborious trans-Atlantic sojourn, yet, due to the absence of summing up of the edifying notes, they (the lawyers), even after feeling the tremor, remained where they were Sinha J., it is submitted, started well, being equipped with very sound and unimpeachable rules and practical canons of interpretation after such extractions in the journey from the English decisions but at the time of actual decision, it is submitted that he lost his own mooring and went adrift forgetting his own canons.

After starting with the scanning of the definition of the word "tenant" in Section 2(h) of the Act, Sinha J. said that a "statutory tenant" has now found in the Act of 1956 a local habitation. But the indictable sins, mentioned in Section 13(1) of the Act, refer to deviations from "contractual obligations" or to derelictions of "contractual" tenants--submit the learned advocates. According to Sinha J., a statutory tenancy commences when the contractual tenancy has been terminated. It is argued, what then would happen when the statute, ignoring the infructuous termination, allows the contractual tenancy to continue. No value is to be given, say the learned advocates, to such a reasoning, made not with full vision but only with half-sight.

As to the nature of the notice, though Section 13(6), simply speaks of a notice and though the lawyers call it a "notice to quit" or "appraisal notice" or "demand notice" etc., Sinha J. smelt smack of a technical notice to quit in it and thought that Section 13(6) has been introduced in the 1956-Act as "an "additional" protection to tenants. It is again argued that, in reality, it would be subs traction of protection.

Sinha J. also thought that Section 13(6) had been superimposed on the existing law. Question of superimposition does not arise, according to the learned advocates, as there is no existing law for evicting a subsisting tenant. Hence the said concept, per se, is not palpable, comforting or welcome to the tenant or the sub-tenant.

The reasons, given by Sinha J., for the combination of two notices, the learned advocates submit, are more or less apologetic in nature and inconsistent with the spirit of bringing home to the "culprit" the specific charges against him. He remarked that the decision, in the case of Amarendra Nath Vs. Bibhuti Bhuson, , (decided under the Rent Control Ordinance of 1946 and which now stands safely interred in the burial ground for more than a decade), "was the law before". Sinha J. certainly did not mean it to be the "ancient law" and therefore it is not, according to the learned advocates, very much relevant.

It is also argued, that dealing with the Supreme Court decision in the case of Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad, , regarding a Bombay Statute viz. the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947, which has not enacted any cause of action, as the provision of Section 13(1), of the West Bengal Premises Tenancy Act, 1956, has done; Sinha J.''s analysts does not appear to be scientific for having unnecessarily stressed too much the platitudinous juristic distinction between right to possession and right to recover possession i.e., remedy of recovery of possession. In view of Section 13(6) itself, it is said, pilgrimage to Sections 106 and 111 of the Transfer of Property Act, for right to possession and the consequential remedy was not necessary. It is not a correct ratiocination to say that in the Rent Control Statutes this feudal (landlord''s) remedy was hedged in eventualities, designed as protections to the tenant against the remedy.

Though the judgment of my learned brother is an effective answer as to whether the grounds or causes of action for a suit u/s 13(1), have to be stated in the notice u/s 13(6), the theory of imposition of additional restraint on the landlord, like the additional protection of the other learned Judges, it is argued, is not a happy mode of describing things. The remaining part of the judgment of my learned brother, being a dissentient judgment, was passed over.

It is argued from the Bar that the judgment of G.K. Mitter J., as it consists mostly of statutory provisions, can be taken as read.

In the result, the Special Bench decision affecting the multitude of litigants has been stated to have reached the highest peak in the range of judicial alertness, anxiety and arduousness; solidarity of thoughts and over-refined ideas, wide excursion over a huge legal field, trodden and untraded and enrichment of jurisprudential ideas. It is now authoritative law. A study of this case, say the learned advocates, also furnishes a side-light to the human mind to accept as credible the incredible anecdote about Newton''s attempt to make two exit-holes for his two rabbits, where one hole could suffice to serve as an exit for both.

After the pronouncement of the Special Bench, the above appeals came back to us.

Mr. Gupta''s first contention was about the point of jurisdiction, which was not ultimately pressed, though raised at the first hearing.

Mr. Gupta next contended that when the landlord purchased the premises with his eyes wide open and knowing it to be tenanted, that fact alone should disentitle a landlord from getting a decree for ejectment on the ground of reasonable requirement. Mr. Mitter rightly replies, in my view, that there is no provision in the Act or any law which prevents or debars the landlord, who has purchased the premises, even with the knowledge that tenants are occupying the same, from getting a decree of ejectment on any ground, including on the ground of reasonable requirement, if not otherwise barred. In my view, the above contention of Mr. Gupta is an extreme contention which cannot be accepted.

Mr. Gupta next contended, even on the face of the Special Bench decision, that the notice in the instant suit (Ex. 4) is defective, as no ground is stated. According to him it would be a mistake to suppose that there is a majority view in the said Special Bench decision that no ground need be stated in a notice u/s 13(6). The above analysis of different judgments was sought in aid of the said contention. It is true that the said view follows from the answers of the majority of the learned Judges, viz., of the learned Chief Justice and of Sinha and Mitter JJ., but it is submitted that it does not follow from the body of their judgments and particularly from the reasonings given by the different learned Judges, which go contrary to the answers.

Mr. Gupta, therefore, asserts that the answer to Question No. 2, as given by the learned Chief Justice viz., that the ground need not be stated must be read with what his Lordship has said at of 67 C.W.N. 984 Supra, viz., "If from other correspondence passing between the parties or from surrounding circumstances it appears that the notice to quit which was given, is referable to the ground of default, that is sufficient. It is not essential to state the ground of default in the notice to quit as contemplated in Section 23". Bachawat J. proceeds on the basis that the tenant will be presumably conversant with the facts and circumstances of the case and he states at p. 988 of the said Report (1), that "A notice which gives this information is sufficient...." My learned brother specifically held that the grounds are necessary to be stated. Sinha J. held that though u/s 13(6), no ground may be given, there is nothing to prevent the landlord setting out the grounds, if he wishes to do so.

It is, therefore, contended that the learned Chief Justice, Bachawat and P.N. Mookerjee JJ. found as a fact that a tenant should get sufficient information or intimation or there must be at least surrounding circumstances appearing from the record which, according to Mr. Gupta, in essence, are nothing but grounds in different colour and form. It is argued that rather the majority view should be taken that the grounds need be stated. If the answer given by the Special Bench, the learned Advocates submit, contradicts the discussion and the reasoning in the body of the judgment, the answer cannot and should not be accepted.

In an unreported decision, in the cases of Saraswati Dutta v. Krishna Raman Nag unreported decision of P.N. Mookerjee and D. Basu JJ. Dated July 29, 1963 in F.A. Nos. 165 and 166 of 1962 (analogous) and Tarak Nath Dutta v. Krishna Raman Nag unreported decision of P.N. Mookerjee and D. Basu JJ. Dated July 29, 1963 in F.A. Nos. 165 and 166 of 1962 (analogous) of my learned brother, sitting with D. Basu J., interpreting the judgment of the Special Bench, held that, according to the majority view of the Special Bench, though the ground or grounds u/s 13 need not be stated in the notice, but the essential requirement in this respect appears to be that at least, from something on the record, prior to the suit or the plaint, it must be found that the notice could be related to some ground under the "Act. In the case of Subodh Chandra v. Santosh Kumar (1963) 68 C.W.N. 184, the same Bench held that the mention of the grounds of ejectment would not make it a notice of suit by necessary implication in all cases. Two other decisions of the same Bench on the same day, viz., Dulinchand v. Renuka (1963) 68 C.W.N. 296 and Raj Kumari v. Ashalata (1963) 68 C.W.N. 299 , were also replied upon.

Mr. Pramatha Nath Mitra, the learned advocate, replied with great force that the passages quoted above, particularly the passage in the judgment of the learned Chief Justice, cannot be held as laying down that although the actual notice may not contain any ground, nevertheless, in order that the notice may be valid, the landlord must show from the correspondences or the surrounding circumstances that the notice was issued on one of the grounds mentioned in Section 13. No such proposition can be spelt out from the said passage of the learned Chief Justice. According to him, the real intention and effect of the said passage is that it is a provision in favour of the tenant, enabling him to show that the ground of default, although not expressly stated in the notice, appears from the circumstances and thereby the tenant can plead waiver of the notice to quit. It gives, according to Mr. Mitra, an additional opportunity or chance to the tenant to defeat the landlord''s suit for ejectment.

Mr. Mitra next submitted that the majority view in the Special Bench decision is found only in the answer of the learned Chief Justice, viz., that it is not necessary to mention in the notice u/s 13(6), the ground or grounds of ejectment for which the suit is to be instituted for recovery of possession. He argued further that, sitting in the Division Bench, we had no power to go into the reasoning�s given by the Special Bench but we are to look only to the answer and are bound by the same.

In my judgment, a Court, in order to appreciate the principles laid down by a Special Bench or Full Bench, is entitled to look into the reasonings to find out the real answer intended to be given and particularly, if the answers do not follow straight from the body of the judgment. It is the Court''s duty to reconcile the ambiguity, if possible. I need not go so far as to hold that the answers given by the Special Bench contradict the reasoning and the statements in the judgment. They supplement the answers. They are complimentary and not contradictory and in my view, the learned Chief Justice, did not, at p. 984, reject the argument that the Statute contemplated notices on grounds of ejectment but merely explained that that did not necessarily require statement of the grounds in the notice itself.

I do, therefore, hold that the three learned Judges of the Special Bench, viz., the learned Chief Justice and Bachawat J. and my learned brother, have held that in a case where a notice to quit does not state the grounds, there must appear, either from the correspondence or from the surrounding circumstances in the record, some such information to the tenant, which might be taken as sufficient intimation to him.

As an authority for the proposition that the answers are the only guide, Mr. Mitra referred us to a Bench decision of the Allahabad High Court in the case of Abdul Shakur and Others Vs. Kotwaleshwar Prasad and Others, . In my view, the ratio of the Bench decision of the Allahabad High Court, with respect, is not correct. Moreover, no reason has been given in the said decision.

Mr. Mitra then drew our attention to the tenant''s evidence to show that there are circumstances in this particular case, viz. that the landlord informed the tenant to vacate the premises to be occupied by him for his own use. The same should be treated, according to Mr. Mitra, as satisfying the tests laid down in the body of the Special Bench decision. In my view, Mr. Mitra is not correct. All that the record shows on this point is that Plaintiff No. 1 told the Defendant tenant that he would be glad to have the disputed house for use. This is not the type of circumstance that has been thought of by the Special Bench. Moreover, the learned Court below could not consider the question from the said angle as it could not get the advantage of the Special Bench pronouncement on the point. The parties also did not give evidence from the said point of view. It will, therefore, not be proper to accept the arguments of the learned advocates appearing on behalf of the Appellants and to dismiss the suit straightway on the ground of the said defect in the notice containing no ground and no information. The Plaintiffs should be given an opportunity to place their case from the said standpoint on the materials on record and on further evidence that might be adduced by the parties.

There is another serious mistake on the point of notice in the judgment. The learned Judge considered the question of notice to quit only from the viewpoint of Section 106 of the Transfer of Property Act and he held the same to be valid under the said provision only. He failed to consider as to whether the notice satisfies the test of Section 13(6) of the West Bengal Premises Tenancy Act, 1956. The finding that the notice is valid should, therefore, be set aside and there is no, escape from that.

On the question of reasonable requirement of the Plaintiffs, the treatment of the same by the learned trial Judge in his judgment is wholly unsatisfactory. He has found that the requirements of both the Plaintiffs would be satisfied with 5 bed rooms, 1 study room, 1 sitting room, 1 office room, besides one kitchen, one dining room and one Thakur-Ghar; but he has failed to consider as to how the Plaintiffs are having their accommodation satisfied at 29/1, Ballygunge Circular Road, because it is nowhere stated by the Plaintiff No. 1, in his evidence, that the accommodation in the Ballygunge Circular Road house is not sufficient.

The learned trial Judge has also not considered as to whether the accommodation of the Plaintiff No. 1 in his ancestral house along with the accommodation of the admitted co-sharers, namely, his eldest brother''s widow and his second brother''s sons and daughters, taken together, are not sufficient for the accommodation of the family members of the Plaintiffs, both immediate and outer members. The learned trial Judge also did not consider whether it would be possible to keep some of the members of the outer family of Plaintiff No. 1 in the house of his sister, though, admittedly, the house was then under repairs and was found lying vacant. The learned trial Judge mis-directed himself in holding that the said house should be kept for the future provision of the childless widow. It is also hot kept in mind by the learned trial Judge that a portion of the premises in Hem Kar Lane was vacant. The learned Judge failed to consider as to whether under the law it makes any difference if a Plaintiff suing for eviction is entitled to get a decree for ejectment against a tenant even if his wife is the owner of another house, where her husband and children can be accommodated and where there is no evidence that the husband and the wife are living apart. The learned trial Judge was wrong in holding that the wife''s house does not come into the picture at all, so far as the Plaintiffs'' claim of reasonable requirement is concerned. The learned Judge was also not correct in treating all the persons, mentioned by the Plaintiff No. 1, as his dependants. The reasonings in support thereof, viz., moral guidance and physical protection require reconsideration. The learned trial Judge has not accepted the testimony of Sri Keshab Chandra Basu, Plaintiff No. 1, in its entirety as to his requirements. He has found that the lesser accommodation than what is claimed by him would be sufficient to satisfy his needs. It was the duty of the learned Judge to consider the fact that the said Sri Basu did not disclose the facts about the houses of his wife and sister (being held to be members of his family) which were, at least, expected in his answers to the interrogatories from a person of such a high position and status in the society as Plaintiff No. 1. The learned trial Judge also failed to consider that the Commissioner for local inspection was not allowed to make measurements of some portion of the premises. Even the inspection of the same was not allowed-The learned Judge eventually omitted to consider the objection to the Commissioner''s report which was expressly reserved for consideration at the time of hearing by his order No. 32 dated 13.1.59. It appears that he forgot all about it at the time of final hearing. The learned Judge also erred in relying on the two rent receipts (Exs. 2 and 2A) filed on the date of hearing and in admitting them into evidence without further proof. The learned Judge should have considered that the Plaintiff No. 1 was a sitting Councillor of the Calcutta Corporation from the constituency of his ancestral house.

The learned trial Judge should have also considered the fact whether a portion of the disputed premises might satisfy the requirement of the Plaintiff, particularly, in view of the fact of the evidence of the tenancy and the sub-tenancy and that the tenant was occupying the first floor and the sub-tenant was occupying the ground floor of the disputed premises. The finding of the learned Judge, that the Plaintiffs require the entire disputed premises without properly considering all the aforesaid facts and surrounding circumstances, is open to challenge.

I would, accordingly, allow the appeals and set aside the judgment and the decrees passed by the Court below and send the cases back on remand to it for re-consideration of the appeals. The Court below will have to consider the validity and sufficiency of the notice from the view point of the Special Bench decision and the said four decisions of this Court. The other two points, viz., the points of reasonable requirement and partial eviction, should also be considered in the light of the observations herein made. The parties would be entitled to adduce further evidence. A fresh Commission will issue and the Plaintiffs would allow complete inspection this time of the entirety of all the premises. The Court below should also consider the application filed on May 26, 1959, which was dismissed mainly on the ground of delay. If so advised, the Plaintiffs may also apply for amendment of the plaint. If such application is moved, the learned trial Judge would consider the same after hearing objections of the Defendants, if any. The learned Judge would make all attempts to dispose of the suits early but in accordance with law and after allowing the parties proper opportunities to adduce further evidence in respect of their respective cases, on all the above points and after giving due consideration to the evidence, as on record and on such further evidence as may be adduced by the parties hereafter. There will be no order for costs up to this stage. Further and other costs would be in the discretion of the Court below.

P.N. Mookerjee, J.

I concur in the order, proposed by my learned brother. I agree with him in his conclusions and the essential reasonings in support of the same.

The Plaintiffs'' Respondents will be at liberty to withdraw the amounts, if any, lying in deposit, either with the Rent Controller or in Court, in respect of the disputed premises, on account of rents or mesne profits, as the case may be, without prejudice to the rights and contentions of the parties in the present proceedings.