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Judgment
Tarun Kumar Gupta, J.—This appeal is directed against the judgment and decree dated 31st March, 2006 passed by the learned Additional District Judge, 3rd Court, Purulia in Title Appeal No.44 of 2005, reversing the judgment and eviction decree dated 20th May, 2005 passed by learned Civil Judge (Junior Division), Additional Court, Purulia in Title Suit No.390 of 1988.
The appellant/plaintiff/landlord filed a suit for eviction alleging default in payment of rent, change of user from residential to business, damage of the property, reasonable requirement of the suit premises for the plaintiff and his family members as they have no reasonable suitable accommodation elsewhere and also for building and rebuilding of the suit property. The plaintiff/landlord sent a notice to quit before filing of the suit but without any result. Accordingly, the landlord/owner has filed a suit for eviction.
The respondent/defendant contested the said suit by filing a written statement denying material allegations of the plaint and contending, inter alia, that plaintiff was not the owner of the suit premises and that he did not require the suit premises either for reasonable requirement or for building and rebuilding and that he did not cause any damage or was not guilty of change of user.
After contested hearing, learned Trial Court decreed the suit for eviction on the ground of default, change of user and reasonable requirement of the suit premises by the plaintiff for use of self and his family members. However, learned Trial Judge disbelieved the allegation of plaintiff about causing damage of the suit premises by the defendant/tenant and requirement of the suit premises by the plaintiff for building and rebuilding.
The defendant/tenant preferred an appeal being Title Appeal No.44 of 2005 against the said judgment and decree of eviction. Plaintiff/landlord also filed one cross appeal for rejection of plaintiff''s claim of eviction on the ground of causing damages. Learned Lower Appellate Court after contested hearing allowed the appeal preferred by defendant/tenant by setting aside the judgment and decree of eviction passed by the learned Trial Court and also dismissed the cross appeal filed by the plaintiff/landlord.
Being aggrieved with the said judgment and decree, this second appeal has been preferred by the plaintiff/landlord.
During hearing of the second appeal, at the prayer of the learned counsel for the appellant, the following substantial questions of law were formulated for disposing of this appeal:
(1) Whether learned Lower Appellate Court substantially erred in law by holding that non-filing of a petition u/s 17(3) of West Bengal Premises Act in the Trial Court amounted to waiver of claim of plaintiff against default of tenant though admittedly tenant deposited rents of several months together in several occasions in violation of provisions of Section 17(1) of the Act.
(2) Whether learned Lower Appellate Court substantially erred in law by ignoring the plaintiff''s claim that on the death of testator of the property, it vested with executor or legatee which was perfected on grant of probate.
(3) Whether learned Lower Appellate Court substantially erred in law by not taking into consideration that after lapse of statutory period as contemplated in subs-Section 3(A) of Section 13 of West Bengal Premises Tenancy Act, plaintiff got a decree since instituted on the ground of own use and occupation.
(4) Whether learned Lower Appellate Court substantially erred in law by refusing a decree of eviction on the ground of reasonable requirement after making reconstruction of the building without any basis.
(5 ) Whether learned Lower Appellate Court committed substantial error of law by not holding that transfer of property dealt with under the provisions of Transfer of Property Act does not mean and include testamentary succession under a will and such testamentary succession is not prohibited by the provisions of Sub-Section (3A) of Section 13 of the West Bengal Premises Tenancy Act, 1956.
Point No.1
Mr. Bidyut Banerjee, learned senior advocate, appearing for the appellant/ landlord submits that though learned Lower Appellate Court came to concurrent findings of fact that respondent/defendant/tenant paid rent on some occasions by depositing several months'' rent at a time but did not allow a decree of eviction on the ground of default on the ground that landlord did not file any application u/s 17(3) of the West Bengal Tenancy Act, 1956 for striking out defence of the tenant for non-complying mandatory provisions of Section 17(1) and 17(2) and 17(2A) of said Act and that in the process landlord waived his right for asking eviction on the ground of default. According to Mr. Banerjee in the process learned Lower Appellate Court referred a case law reported in Chotalal Shaw Vs. Ram Golam Shaw and Others, in support of his contention that said waiver need not be expressed and can be implied. Mr. Banerjee strongly submits that learned Lower Appellate Court failed to interpret the provisions of Section 17 and more particularly of Section 17(3) and of Section 17(4) of said Act of 1956 in proper perspective and as a result came to said wrong conclusion. According to Mr. Banerjee a Single Bench of this Court took the view in said Chotalal Shaw''s case (ibid) that where no application u/s 17(3) of the Act of 1956 is made in the Trial Court for striking out the defence of delivery of possession on the ground of default in the payment of rent, the Appellate Court had no authority to invoke said provision of Section 17(3) of said Act at the time of hearing of the appeal. According to Mr. Banerjee said case of Chotalal Shaw (ibid) and some other case laws on this point were discussed by another Single Bench of this Court in the case of (C. Muralee Dharan alias Dhasam vs. sm. Arati Nath) reported in 87 C.W.N. 60. Mr. Banerjee further submits that in said case it was specifically declared that no duty was cast upon landlord by the statute to file an application u/s 17(3) of said Act of 1956 and that if tenant failed to deposit the arrears and / or current rents in terms of section 17(1) and 17(2) of said act then the Court can strike out the defence against delivery of possession u/s 17(3) of the Act without any application of the landlord. In this connection Mr. Banerjee further submits that protection against eviction on the ground of default u/s 17(4) of said Act can be given to the tenant only when it is established that he paid monthly rents u/s 17(1) of the Act month by month and complied other directions of the Court regarding payment of arrear rents, if any. In support of his contention he refers a case law reported in Ganesh Chandra Dutta Vs. Chunilal Mondal and Another,
Mr. Jyotirmoy Adhikary, learned counsel for the respondent/tenant, on the other hand, submits that respondent /tenant was a defaulter technically but not actually and that said default should have been condoned by a Court of law and that learned Lower Appellate Court did not commit any wrong by granting protection to the defendant/tenant against eviction on the ground of default by condoning said technical defaults particularly in view of the fact that rent law was beneficial legislation and that no application u/s 17(3) of the Act of 1956 was filed by the plaintiff landlord seeking striking out of the defence of the defendant tenant against delivery of possession on the ground of default. In support of his contention he has referred case laws reported in B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Another, Shibu Chandra Dhar Vs. Pasupati Nath Auddya, Gaya Prasad Kar Vs. Subrata Kumar Banerjee,
There is no denial that defendant tenant deposited a challan of Rs.63 for the rents for the months of Agrayan, Poush and Magh, 1409 B. S. on 30.11.2002 and again deposited a challan of Rs.63 on 07.05.2003 towards payment of rents for the months of Falgun, Chaitra and Baishak and again a challan of Rs.63 on 30.10.2003 for payment of rents for the months of Jaista, Ashar and Shraban, 1410 B. S. and a further deposit of Rs.42 for the months of Kartick and Agrayan, 1410 B. S.
Learned Trial Court observed that a tenant cannot evolve his own procedure for depositing the amount of several months at a time in contravention of Section 17 (1) of the Act of 1956 and that defendant was a defaulter.
However, learned Lower Appellate Court, as has already been referred above, was of the view that landlord waived his right of getting eviction on the ground of default by not filing any application praying for striking out the defence of the defendant/tenant against delivery of possession on the ground of default u/s 17(3) of the Act.
The Case of M/s. B. P. Khemka (ibid) as referred by learned Counsel for the respondent /tenant related to interpretation of Section 17 (2-A) of the Act of 1956 which was brought into statute by Section 5 of the West Bengal Premises Tenancy (amendment Ordinance) (VI of 1967) in perspective of section 17(3) of said Act of 1956. In terms of said ordinance all tenants against whom suits or appeals were pending on the date of promulgation of said Ordinance were entitled to seek the benefit of Section 17 (2-A) i.e. payment of arrear rents in lump or in installments by extending the time to deposit the same on an application. In that connection Hon''ble Apex Court further held that the words "shall order the defence against delivery of possession to be struck out"occuring in Section 17(3) have to be construed as a directory provision and not a mandatory provision as the word "shall" has to be read as "may". Such a canon of construction is warranted because otherwise the intendment of the Legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the Ordinance and the amending Act will stand deprived of them. Said case law has no application in the facts of this case. In Shibu Chandra Dhar''s case (ibid) it was held that as it was a beneficial legislation (West Bengal Premises Tenancy Act) the word "shall" in different provisions of Section 17 of said Act necessarily means "may" and that a conjoint reading of those provisions of Section 17 shows that a Court has power to extend time for deposit though said discretion to pass extension of time should be exercised judicially. It is nobody''s case that defendant / tenant made any application at the time of deposit of three months'' rent together (three times) and two months'' rent together (one time) for condonation of delay in tendering rents of previous two months (in case of deposits of three months together) and condonation of delay for tendering rent of previous month (two months'' deposits). In absence of said application and proper explanation there was no scope of exercising any judicial discretion for accepting rents for earlier periods as valid deposit. There is no denial that rent Acts including the West Bengal Premises Tenancy Act are beneficial legislations and meant for protection of tenants against arbitrary eviction by their landlords. By these Acts tenants were given right of not being evicted except on the grounds mentioned in said acts. There can never be any right without a corresponding duty / obligation. Accordingly, tenants'' right of protection against eviction is jealously guarded by a Court of law so long the tenant is not guilty of any latches in performing his corresponding duty namely tendering / depositing of rent month by month as per provisions of rent Act. In terms of Section 17(1) of the Act of 1956 the tenant is required to deposit the month by month rent in Court during trial within 15th of the next month as per calendar o f the month guiding the tenancy. In the case in hand, both the Courts came to the concurrent findings of fact that defendant / tenant committed defaults in making payments on several occasions in violation of provisions of Section 17(1) of said Act of 1956. The defendant /tenant did not give any explanation, not to speak of filing an application, for the reason of violation of said provision of Section 17 (1) of the Act and / or for deposit of said rents for several months at a time.
Section 17(3) of said Act runs as follows:-
If a tenant fails to deposit or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub-section (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub-section (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.
On plain reading of Section 17(3) it appears that it was no where mentioned that said defence against delivery of possession can be struck of under said Section only after filing of an application by the landlord on that regard. Rather it appears that a duty was cast upon the Court to pass an order of striking out defence u/s 17(3) of the Act on being satisfied about violation of payment of rent either in terms of Section 17(1) or in terms of section 17(2) or in terms of Section 17(2-A) of the Act. One of the golden rules of interpretation of statute is that a provision of law should be interpreted as it stands unless said interpretation is inconsistent with other provisions of said statute. If said Section 17(3) of said Act of 1956 is interpreted as it stands, as stated above, then there is no scope of conflict of said interpretation with other provisions of the Act. As such, non-filing of any application by the plaintiff /landlord u/s 17(3) of the Act did not imply that landlord had consented impliedly to waive his right of getting a decree of eviction on the ground of default.
Apart from that on plain reading of Section 17(4) of the Act which stands as follows, it appears that if a tenant makes deposit of payment as required by sub-section (1), [sub-section (2) or sub-section (2-A)] no decree or order for delivery of possession of the premises to the landlord on the ground of default for payment of rent by the tenant shall be made by the Court.
Section 17(4):-
If a tenant makes deposit or payment as required by sub-section (1), [sub-section (2) or sub-section (2A)] no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord:
Provided that a tenant shall not be entitled to any relief under this sub-section if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.
Admittedly, the proviso appointed to section 17(4) has no application in this case as it is nobody''s case that this is a case of second default after obtaining a relief under this Section 17(4) earlier. If we read all the provisions of Section 17 of the Act of 1956 conjointly it appears that in order to get protection against eviction on the ground of default u/s 17(4) of the Act the Court has to be satisfied at the time of passing of the decree that there was no default on the part of the tenant in tendering rent either in terms of Section 17(1) or in terms of Section 17(2) or Section 17(2-A) of said Act.
In the case in hand, it was concurrent findings of facts of both the Courts that respondent /tenant made violation of said 17(1) of the Act by depositing several months'' rent together in more than three occasions. Under these facts and circumstances learned Lower Appellate Court was not justified in giving protection to the defaulter tenant u/s 17(4) of the Act irrespective of the fact whether landlord filed any application u/s 17(3) of the Act or not.
Accordingly, I find and hold that the Respondent was a defaulter in payment of rent and that appellant/landlord was entitled to get a decree of eviction on the ground of default.
Point Nos. 2, 3, 4 and 5
Mr. Banerjee, learned advocate for the appellant/landlord, submits that learned Appellate Court observed that suit premises originally belonged to present appellants'' father Trilok Nath Barui alias Chowrasia who executed the will on 5th of March, 1992 disposing of his properties including suit properties. Mr. Banerjee further submits that said Trilok Nath died on 10th March, 1992 and the present suit was filed on 21st of August, 1998 on the ground of default, causing damage, change of user from residential to commercial, reasonable requirement of the suit premises by the plaintiff landlord and his family members having no other reasonably suitable accommodation elsewhere and for building and rebuilding of the suit premises on the ground of said reasonable requirement. According to Mr. Banerjee, the will was probated on 8th of March, 2001 and learned Lower Appellate Court was of the opinion that plaintiff was not absolute owner of the suit premises on the date of filing of the suit in 1998 as probate was not granted at that time. According to him, learned Lower Appellate Court was also of the opinion that plaintiff got absolute title to the suit property only on the strength of the probate of the will granted on 8th of March, 2001 and that the plaintiff had no right to file said suit praying for ejectment of tenant either on the ground of reasonable requirement or on the ground of building and rebuilding before expiration of a period of three years from the date of his acquiring said interest in the property in terms of Section 13 (3A) of the Act of 1956. Mr. Banerjee further submits that learned Lower Appellate Court also observed that Section 18 A of said Act was not also complied with though there was a prayer for eviction on the ground of building and rebuilding u/s 13(1) (f) of said Act of 1956. According to Mr. Banerjee learned Lower Appellate Court also set aside the decree of eviction passed by learned Trial Court on the ground of reasonable requirement with a wrong notion that plaintiff /landlord failed to establish that he had no other reasonable suitable accommodation elsewhere and that he reasonably required the suit premises for his and his family members'' own use and occupation.
Mr. Banerjee next submits that the locking period of three years in terms of Section 13 (3A) of the Act of 1956 is not applicable in this case as plaintiff /landlord got the suit property absolutely from his father through a will and that a will is not a transfer but a mode of devolution. Mr. Banerjee also submits that Section 18(A) of said Act had no application in this case as plaintiff/landlord wanted building and rebuilding of the suit premises for the purpose of reasonable requirement of the same for his and his family members'' use and occupation and not for any other purpose.
The landlord is the best judge, Mr. Banerjee submits, as to how he will use the suit property.
According to Mr. Banerjee in absence of evidence that other properties owned by the landlord through will were situated in a business place or were really suitable for the purpose of residence-cum-business, learned Lower Appellate Court was wrong to hold the issue against the interest of the landlord.
In this connection Mr. Banerjee refers to the cases of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, , Prativa Devi Vs. T.V. Krishnan, , Siddalingamma and Another Vs. Mamtha Shenoy, , Satyendra Kumar Mookherjee vs. Aloke Kumar Bose & ors. 2011(3) CLJ (Cal) 578 and Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and Another,
Mr. Jyotirmoy Adhikary, learned counsel for the respondent/tenant admits that Section 13 (3A) has no application in this case as a will is not a transfer but a mode of devolution. However, he submits that at the time of filing of the suit for ejectment the plaintiff was only a co-sharer of the suit property which was rightly held by learned Lower Appellate Court and that during pendency of the suit plaintiff became absolute owner of the suit property and some other house properties on the strength of will dated 5th March, 1992 executed by his father Trilok Nath Barui alias Chowrasia. According to Mr. Adhikary it came out from said will that plaintiff became owner of some other house properties also. According to him plaintiff did not take any step to show that those house properties inherited by him from his father through said probated will were not reasonable or suitable for his and his family members'' accommodation and business. According to him, learned Lower Appellate Court did not commit any mistake in rejecting the landlord''s prayer for eviction of tenant on the ground of reasonable requirement after building and rebuilding in absence of any cogent evidence that those premises which were bestowed upon plaintiff through said will were not suitable for the purpose of residence as well as business of the plaintiff and his family members.
In terms of Section 13 (3A) of said Act of 1956 there is locking period of three years for filing a suit for ejectment either on the ground of building and rebuilding u/s 13(1) (f), or on the ground of reasonable requirement u/s 13(1) (ff) of said Act of 1956 from the date of acquisition of interest in the suit property. Admittedly, a will not being a transfer, the bar contained in section 13 (3A) of the West Bengal Premises Tenancy Act, 1956 will have no application in the facts of this case.
Admittedly, a legatee has a right to file a suit for ejectment for the benefit of the beneficiaries of the will. Appellant / plaintiff was a legatee/ beneficiary in said will of his father. As such he had right to file said suit for ejectment on the grounds mentioned therein as legatee / beneficiary of said will. Admittedly, during pendency of this suit the will was probated on 8th of March, 2001 and on the strength of said probated will the plaintiff became absolute owner of the suit property and plaintiff''s brother (P.W.4) became absolute owner of the house property wherein plaintiff was residing. As such, after probate of said will status of plaintiff in said premises of his residence was nothing but a licensee under his brother. However, it came out from evidence that on the strength of said will plaintiff got other house properties also. It was the duty of the plaintiff to show and prove that those house properties were not suitable and convenient compared to suit property for being used as residential-cum-business purpose. No Advocate Commissioner was appointed to make commission of those properties to justify that those other house properties were not suitable and / or reasonable for being used by the plaintiff and his family members for residential-cum-business purpose. It is true that defendant /tenant did not pray for any such commission. But it was not the duty of defendant/tenant to disprove the same. Rather it was the duty of the plaintiff to prove the same. Plaintiff''s case must stand on its own legs and not on the defects of the defence case.
The case laws referred by Mr. Banerjee laid down the principles of examining the case of ''reasonable requirement'' of the tenanted suit premises by the landlord. Those principles are well settled. For example, in Shiv Sarup Gupta''s case (ibid) Hon''ble Apex Court held as follows:
The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord.
When another residential accommodation is shown to exist as available then the Court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the Court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction.
In Prativa Devi''s case (ibid) Hon''ble Supreme Court held:
The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation.
In Siddalingamma''s case (ibid) it was held by Hon''ble Supreme Court "The question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.
In D. L. Kamble''s case Hon''ble Apex Court further held:
In fact both terms (reasonably and bona fide) are complimentary to each other in the context, for, any unreasonable requirement is not bona fide. Vice-versa can also be spelt that if the requirement has to be bona fide it must necessarily be reasonable also. But when the legislature employed the two terms together the message to be gathered is that the requirement must be really genuine from any reasonable standard. All the same, genuineness of the requirement is not to be tested on a par with dire need of a landlord because the latter is a much greater need.
The case of S. K. Mookherjee (ibid) has no application in the facts of this case. In that case it came out that in the other property which was not disclosed by plaintiff, plaintiff had no longer any share. But in the present case it came out that plaintiff became absolute owner of some other house properties through the probated will of his father, but plaintiff did not take any step to show that those house properties were not suitable in comparison to the suit property for being used as residence-cum-business place.
It also came out from evidence on record that during pendency of this suit plaintiff came into possession of several rooms in the suit building and that plaintiff''s father also got possession of some other rooms in the suit building during his life time. Learned Lower Appellate Court rightly held that had the plaintiff any urgency in the matter of requiring of suit premises for own use and occupation then he could have used the rooms of the suit building which came into his father''s possession and later on his possession on remodelling. Learned Lower Appellate Court further held that plaintiff did not file any sanctioned plan of the municipality to show that he was really planning for building and rebuilding of the suit premises for the purpose of being used by him and his family members. Learned Lower Appellate Court further observed that no evidence was led to show that plaintiff had sufficient means for building and rebuilding of the suit premises. It is true that landlord is the best judge as to how he will use the suit property after eviction of the tenant therefrom but he must show prima facie that his need was bona fide and that he has no other reasonable suitable accommodation elsewhere. In the case in hand, learned Lower Appellate Court came to a correct findings of fact that appellant/landlord miserably failed to establish that he reasonably required the suit premises for his and his family members'' own use and occupation or that he has no other reasonable suitable accommodation elsewhere.
I find no infirmity not to speak of perversity in the aforesaid findings of fact of learned Lower Appellate Court calling for interference by this Court of Second Appeal.
There is also no clinching evidence to show that respondent /tenant was guilty of change of user or of causing damages.
Accordingly, I am of opinion that the judgment impugned is not sustainable only on the ground that appellant/landlord was entitled to get a decree of eviction on the ground of default.
As a result, the appeal is allowed on contest.
The judgment impugned is hereby set aside so far as it relates to refusal of granting a decree of eviction to the landlord on the ground of default in payment of rent by the tenant. The appellant/ landlord do get a decree for eviction only on the ground of default.
However, I pass no order as to costs.
Decree be drawn up accordingly as per law.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of party / parties, if applied for.
Send down Lower Court Records along with a copy of this judgment.