Nagendra Nath Lahiri vs Bidyut Kumar Biswas

Renupada Mukherji, J.—This appeal arises out of a suit for ejectment instituted by the Manager of a Court of Wards representing the Appellants. The subject-matter of dispute was premises No. 105, Alipore Road, which admittedly bore a rental of Rs. 175 per month. It is not disputed that the Appellants are the landlords of the disputed premises. At the time of the institution of the suit their estate was under the management of Court of Wards. During the pendency of the appeal in this Court, the Court of Wards released charge of their estate and the memorandum of appeal was corrected on that basis.

In the trial court the Plaintiffs prayed for ejectment of the Defendant Respondent on several grounds. But it appears that. the trial Court dismissed the suit mainly on one ground, that the landlords had no reasonable requirement for the premises. A contention was also raised in the trial court that Section 55 of the Court of Wards Act, 1879, was a bar to the suit inasmuch as necessary permission had not been obtained by the Manager authorising him to institute the suit by some order of the Court as required by Section 55 of the Act in question. On this point the trial court held in favour of the Plaintiffs Appellants. The suit was, however, dismissed by the trial court and an appeal was preferred by the landlords. The learned Subordinate Judge, who heard the appeal came to a different finding from the trial court on the question of reasonable requirement holding that the premises were reasonably required by the landlords for their own occupation. On the other question, viz., whether Section 55 of the Court of Wards Act was a bar to the suit the learned subordinate Judge took a different view from the trial court holding that in the absence of the requisite permission the suit was not maintainable. In that view of the matter the appeal was dismissed. This Second Appeal has been preferred by the landlords from the above judgment and decree of the lower Appellate Court.

Mr. Sinha appearing on behalf of the Appellants contended that the lower Appellate Court was wrong in holding that requisite permission had not been obtained by the Manager of the Court of Wards authorising him by an order of the Court to institute a suit. Mr. Sinha submitted that a letter was produced on behalf of the Appellants which was marked Ex. 4(a) in the trial court and which showed that requisite permission had been given by the Commissioner to institute the suit before its actual institution. This letter however, purports to show that the alleged permission was forwarded by the Collector to the Manager, Court of Wards in original. It is somewhat curious why the permission itself is not forthcoming. I cannot say that in the absence of the original permission the lower Appellate Court was wrong in holding that the suit was liable to be dismissed on the ground that the Manager was not duly authorised to institute the suit. At the same time I am not unmindful of the fact that there is no reason to doubt about the authenticity or genuineness of the letter marked Ex. 4(a). As mention is made in that letter about the permission of the Commissioner, I think an opportunity should be given to the Appellants to produce the so called permission in its original before the lower appellate Court and to have it formally proved. If it is missing, then an authentic copy of the permission may also be proved. I am therefore inclined to remand the appeal to the lower Appellate Court for taking evidence on this question and if the Appellants succeed in proving the permission either in its original or an authentic copy of it, then it will decree the appeal, unless, of course, the suit of the Appellants fails for another reason which I shall mention later on.

Mr. Das appearing on behalf of the tenant Respondent tried to support the judgment on two grounds. First of all be contended that the question of reasonable requirement of the landlords has not been properly considered by the lower Appellate Court and secondly, that the decision of the lower Appellate Court on the question of reasonable requirement is contrary to the provisions of law. I shall first of all discuss whether the reasonable requirement was proved on behalf of the Appellants as a matter of fact.

It transpires from evidence that both the Appellants and the Respondent have come from Pakistan. The Appellants are at present living in a rented house paying a rent of Rs. 300 per month. It is stated on their behalf that they require the disputed premises for their own occupation as it is neither convenient nor profitable for them to occupy a rented house on payment of a substantial amount of rent. Taking this fact into consideration as also the fact that the Defendant must remove elsewhere if he has got to vacate the disputed premises the lower Appellate Court was of opinion that the requirement of the landlord must be considered to be reasonable in the circumstances of the case. In this connection Mr. Das relied on a prior notice which was issued to the Respondent asking him to vacate the disputed house. Mr. Das sought to argue that that notice would show that the house in question was required not for the personal accommodation of the Appellants but for the accommodation of other people of their estate. On a reference to the earlier notice for ejectment I am not inclined to accept this contention of Mr. Das and hold that the Appellants require the disputed house for their own occupation.

Mr. Das submitted in the second place that although it may be necessary for the landlords to remove to their own house from the rented house now occupied by them, the disputed house is much too small for their requirement and so it cannot be said that their requirement is reasonable. Mr. Das contended in this connection that although the landlords may enlarge the accommodation of the disputed house by making suitable additions, the Court must be guided by the existing quantum of accommodation and not by any prospective accommodation which may be added by the landlords. In support of this argument Mr. Das relied on several cases. First of all he cited a case T.D. Nandi and Others Vs. Manot and Co. Ltd., , Mr. Das argued that the landlord can get a decree for eviction against the tenant on an allegation that the accommodation in the disputed premises may be extended by addition only where such extension may be made either for any economic gain on the part of the landlord or for public utility. The case T.D. Nandi and Others Vs. Manot and Co. Ltd., was a case of extending the accommodation by the landlord for the above purposes. But that case is not certainly an authority for the proposition that the landlord cannot reasonably claim his own house although the present accommodation of that house is insufficient for meeting with his requirement. In this connection Mr. Das also cited another case Hemangim Devi v. Sukumar Basu (1954) 59 C.W.N. 395 where it has been laid down that reasonable requirement is to be decided on the existing accommodation. The "existing accommodation" referred to in this case, however, relates to the accommodation available to the landlord in the house occupied by him at the time of the institution of the suit and not to the accommodation which the disputed house would be able to furnish him in case he gets a decree. That being the case the above-cited case has got no application to the facts of the present case.

Mr. Das further cited a case Anil Chandra Dutta v. Niranjan Sarkar (1955) 69 C.W.N. 989 That case deals with the scope of Clause (h) of Sub-section (1) of Section 12 of the West Bengal Premises Rent Control Act, 1950, read along with the explanation to Clause (h). In my opinion, the facts of the present case are quite different from the tacts of the above-cited case.

Here the question is whether the requirement of the landlord should be considered to be reasonable in respect of a house from which he seeks to eject a tenant if the existing accommodation of that house be insufficient for meeting with the requirement of the landlord. In any opinion the mere insufficiency of the accommodation available to the landlord in the disputed house would not be a criterion for holding that the requirement of the landlord is not reasonable, because it is open to the landlord, provided he has got money and means, to make the accommodation in the premises sufficient for his requirement by making suitable additions and alterations. In this connection I may mention the case cited by Mr. Sinha on behalf of the Appellants. That case is Hetnangini Mitra v. M. B. Mukherjee (1953) 92 C.L.J. 295; in that case the landlady was living temporarily in a small flat. The courts below found that she was in requirement of 12 rooms, but the disputed premises furnished a much smaller accommodation. The Massif who heard the suit had decreed it in favour of the landlady. The decree was reversed in appeal by the learned Subordinate Judge. In Second Appeal, Chunder J., reversed the judgment of the lower Appellate court and restored that of the Massif holding that a case of reasonable requirement had been made out. On principle there is no difference between the present case and the case Hemangini Mitra v. M.B. Mukherjee Supra I, therefore reject the contention of Mr. Das that the requirement in the present case should be held to be unreasonable simply because the accommodation available in the disputed house would not be sufficient for satisfying the present requirement of the Appellants. The ground on which Mr. Das tries to support the judgment of the lower Appellate Court must, therefore, fail.

In this Court Mr. Das wanted to raise a new point. He contended, by submitting a petition on behalf of the Respondent that during the pendency of the appeal in this Court the Appellants accepted money from his client by way of rent and, therefore, recognised him as a tenant. It was urged by Mr. Das that in view of this acceptance of rent the appeal has become infructurous. This is a new point which has been raised for the first time in this appeal. But I shall direct the lower Appellate Court to investigate into this matter since a remand is being ordered for giving an opportunity to the Appellants to prove their case on another point which I have already discussed.

In the result, this appeal must be allowed. The appeal is accordingly allowed and the judgment and decree of the lower Appellate Court are hereby set aside and the appeal is remanded to the Court of first appeal for a fresh hearing in the light of the following directions: (1) I affirm the finding of the lower appellate Court that the Plaintiff Appellants have got reasonable requirement for the disputed premises. The lower Appellate Court will allow the Appellants to adduce further evidence for proving whether the suit was, as a matter of fact, instituted with the permission or authority of the Commissioner as required by Section 55 of the Court of Wards Act. The Respondent will also be permitted to adduce such evidence as he desires to produce in rebuttal of the case of the Appellants on this point. (2) The lower appellate court will allow both parties reasonable opportunities to adduce requisite evidence for the purpose of coming to a conclusion whether the prosecution of the appeal has become barred by reason of waiver as has been contended by the Respondent. After making necessary findings on these two questions and keeping in view the finding of this Court that the Appellants of this appeal have got reasonable requirement for the disputed premises the lower Appellate Court will dispose of the appeal according to law.

Parties will bear their own costs in this Court. The costs of the courts below will abide the final result of the suit.

The application for reception of additional evidence in this Court is rejected.

Leave to appeal under Clause 15 of the Letters Patent is asked for by the Respondent and is refused.