Jagannath Trivedi And Ors. vs Smt. Nilima Dutta Gupta on 1 March, 2002
Equivalent citations: (2002) 3 CALLT 247 HC
Author: A Mitra
Bench: A K Mitra
JUDGMENT
A.K. Mitra, J.
1. This second appeal is in connection with Title Suit No. 286 of 1978. When admitting the appeal under Order 41, Rule 11 of the Code of Civil Procedure on 1.4.93 the Hon'ble Division Bench passed the following order:
"This appeal will be heard on the points of substantial question of law taken in the grounds of Memorandum of Appeal. Call for the records and issue usual notices."
2. It appears from the office records that on 2.11.95 the appeal was made ready as regards service. It also appears from office note dated 3.2.97 that one learned advocate entered appearance on 4.11.95 by filing vocalatnama. The said learned advocate appearing for the respondents also deposited usual paper book cost on 18.12.95. Lower Courts records arrived and examined but from the office note dated 17.10.2001, it appears that one postal receipt being exhibit No.7 was missing. On 18.10.2001, Justice Pranab Kumar Chattopadhyay passed an order directing the department to find out whether this postal receipt is made available or not and His Lordship also observed that hearing can be done on the basis of the available records devoid of this postal receipt whieh is exhibit No.7. This is a suit for eviction and the suit is a very old one and the appellant No. 1 is also very old and aged about more than 80 years. It was mentioned on behalf of the appellants praying for hearing of the appeal. On 8.12.2001 this Court started hearing the appeal, inasmuch as by this time also this exhibit No. 7 the postal receipt could not be made available.
3. In this appeal though in the trial Court and the First Appellate Court the defendant contested and in this second appeal also initially one learned advocate entered appearance by filing vocalatnama, but at the time of hearing (hearing continued on three dates) no-one appeared on behalf of the defendant respondent even at the second call and this Court was left with no option but to take up the matter for hearing in absence of the learned counsel for the respondent.
4. The second appeal has been preferred challenging the judgment and Order passed by the learned Additional District Judge, 11th Court Alipore passed in Title Appeal No. 99/1990 on 7.3.92 confirming the judgment and decree passed by the learned Munsif, Second Court at Aliporc in Title Suit No. 286/1978 on 21.9.89.
5. The original plaintiff Anuja Kumari Devi has expired by the time and present appellants Shri Jagannath Trivedi and others are her heirs and successors,
6. The original defendant Bidyut Kumar Dutta who was a tenant under the original plaintiff who has expired and the present respondent Smt. Nilima Dutta Gupta is her heir and successor.
7. This is suit for eviction filed by the plaintiff on the ground of default and reasonable requirement
8. The case as made out by the plaintiff in the plaint is, inter alia, as follows:
9. The plaintiff is the owner of the suit premises No. 13A, Ballygunge Place East. The defendant was a monthly tenant under her in respect of the first floor of the said premises consisting of three rooms, bath room, privy and one stair case room and the kitchen at the second floor at a monthly rental of Rs. 220/- payable according to English calendar month. The plaintiff is residing at her native and ancestral house at Jemo within P.S. Kandi in the District of Murshidabad. Defendant defaulted in the payment of rent since February 1978. Plaintiff reasonably requires the suit premises for her own use and occupation and for her family members as she is not possessed of reasonably suitable accommodation elsewhere in Calcutta. Plaintiff's family consists of herself, her husband (the present appellant No. 1), eldest son having wife and two sons and the married younger son. Plaintiff has got six married daughters and 4 of them are residing at Calcutta and suburbs. Plaintiff's elder son who is in service is staying in a rented house at Calcutta. The plaintiff is a very old lady. She and her husband require frequent medical attendance by the specialist physician for their various ailments. Adequate medical help is not available at Kandi for which plaintiff is to suffer much. Plaintilf is to live in Calcutta for better medical treatment and for getting contact with her children and other relations. Notice for eviction was served on the defendant but the defendant did not vacate the suit premises and hence the suit was filed and the plaintiff prayed the decree for eviction of the defendant along with inesne profit etc.
10. Defendant contested the suit by filing written statement. In his written statement the defendant dented the allegations of default in payment of rent and he also denied the reasonable requirement of the plaintiff. The defendant stated that plaintiff's two sons being in service, one in Calcutta and they have got comfortable accommodation. The defendant also staled that the plaintiff has got alternative suitable accommodation in Calcutta and the contention of the plaintiff regarding ailment and medical treatment was denied by the defendant. The defendant further states that the plaintiff is permanently living in his own ancestral house and there are sufficient medical facilities at her native town Kandi. The defendant also challenged the legality, validity and sufficiency of ejectment notice and prayed for dismissal of the suit.
11. On the basis of the pleadings of both the parties the following issues were framed by the learned trial Judge :-
1) Is the suit maintainable?
2) Is the notice to quit legal, valid and sufficient? Was it duly served?
3) Is the defendant defaulter in payment of rent?
4) Is the plaintiff owner of the suit premises?
5) Does the plaintiff reasonably require the suit premises for her own use and occupation and her family members?
6) Docs the plaintiff have any other reasonably suitable accommodation etc?
7) Is the plaintiff entitled to get the decree as prayed for?
8) To what other relief, if any, is the plaintiff is entitled?
12. After hearing the parties the trial Court dismissed the suit on contest. The first appellate Court also dismissed the appeal of the plaintiff and affirmed the judgment and order of the learned trial Judge. However, both the Courts below in conclusion found against the plaintiff dismissed the suit as well as the appeal on the point of reasonable requirement of the plaintiff and his family members. Now the question would be at the outset as to whether the High Court in a second appeal under Section 100 of the Code of Civil Procedure should interfere or disturb the judgment of the trial Court or the first appellate Court. Normally, the answer would be in the negative. But if it appears to the Court that the basis of appreciation of evidence by the trial Court as the first appellate Court is wrong or there is glaring inconsistencies in the matter of appreciation of the evidence by the trial Court and the first appellate Court or ex-facie it appears that there is non-consideration of material evidence and the judgment are based on surmise and conjectures and there is perversity on the face of the judgment, should the Court shut its eyes only by saying that as ultimate finding of both the Courts below are concurrent the Courts should not interfere in the second appeal, the answer definitely would be here also in negative.
13. Hon'ble Supreme Court in its judgment
(Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by Lrs and Ors.) observed:-
"But the fact remains that scrutiny of evidence will be totally prohibited in the matter of exercise of jurisdiction in second appeal would be too broad a proposition and too rigid an interpretation of law not worthy of acceptance. If the concept of justice so warrants, we do not see any reason why such an exercise would be deprecated. This is however, without expression of any opinion pertaining to Section 100 of the Civil Procedure Code."
14. In this judgment the Hon'ble Supreme Court also observed :-
"Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo or such definite objection and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumption and conjectures and resultant, by there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, the perversity itself is a substantial question worth adjudication what is required is categorical finding on the part of the High Court as to perversity. In this context, be had to Section 103 of the Code which reads as below:-
"103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate Court or both the Court of first instance and the lower appellate Court or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100".
The requirements stand specified in Section 103 can nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial questions of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with".
15. In another judgment (Hafazat Hussain
v. Abdul Majeed) the Hon'ble Supreme Court observed:-
"No doubt, it has been repeatedly pointed out by this Court that concurrent findings recorded by the trial Judge as well as the first appellate Judge on proper appreciation of the material on record should not be disturbed by the High Court, while exercising second appellate jurisdiction, but at the same time, it is not an absolute rule to be applied universally and invariably since the exception to the same also were often indicated with equal importance by this Court, and instances are innumerable where despite such need and necessity warranting such inference, if the secondappellate Court mechanically declined to interfere the matter has been even relegated by this Court to the second appellate Court to properly deal with the claims of parties in the second appeal objectively keeping in view the parameters of consideration for interference under Section 100 of the Civil Procedure Code."
16. In the instant case, therefore, it is to be seen as to whether the judgment of both the Courts below suffer from serious infirmity non-consideration of the evidence on record or passed beyond the scope of the statutory jurisdiction or the same can be said to be perverse finding.
17. After hearing the learned counsel and on consideration of the evidence on records as well as the judgment of both the Courts below, I am of the opinion that the following points can be formulated as substantial questions of law which are to be decided in this second appeal in spite of the findings of both the Court below against the plaintiff. The following substantial questions of law are, therefore, formulated and are communicated to the learned counsel for their submission on those points:-
(a) whether the judgment of the lower appellate Court is vitiated on non-consideration of material evidence and based on surmise and conjecture and can be termed as perverse.
(b) whether to satisfy the need of the plaintiff the Court can direct the plaintiff to split up the family of the plaintiff landlord and to stay in different premises in different places owned by the plaintiff.
(c) whether insofar as the residential requirement of the plaintiff is concerned the landlord can be termed as the best Judge or the Court will decide where and under in which manner plaintiff would reside.
(d) whether in the instant case the alternative reasonably suitable accommodation as found by the Courts below can really be termed as reasonably suitable accommodation or not.
(e) whether from admitted evidence on record the need of the plaintiff comes out from the admitted evidence on record then whether the Courts below can simply throw it away as a mere desire of the plaintiff.
18. On the above questions formulated being substantial questions of law by this Court this appeal is taken up for hearing.
19. It may also be mentioned in this context that as quoted earlier when admitting this appeal under the provisions of Order 41 Rule 11 of the Code of Civil Procedure the Division Bench of this Hon'ble Court admitted this appeal on the grounds set out in the memorandum of appeal as substantial questions of law and in that view of the matter the learned counsel was also directed by this Court to make their submissions on the ground Nos. 1 to 9 as made out in the memorandum of appeal though the questions formulated by this Court as mentioned above also includes some of the grounds of the memorandum of appeal.
20. The relevant provision under West Bengal Premises Tenancy Act for the purpose of eviction of a tenant on the ground of reasonable requirement is as follows:
"13(1)(ff)-- Subject to the provisions of Sub-section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession or any reasonably suitable accommodation."
49. In my opinion therefore, the judgment and decree of the trial Court as well as the appellate Court below should be set aside and are hereby set aside and the instant appeal being S.A. No. 433/1993 is allowed. The suit being Title Suit No. 286/1978 should be decreed and is decreed against the defendant. The defendants/respondents (though the suit is very old one) is given three months time to vacate the suit premises failing which the plaintiff appellant would be entitled to put the decree in execution.
In the circumstances the parties are to bear their respective costs. Let a decree be drawn up accordingly.
Urgent certified copy, if applied for, will be given expeditiously.
