Tarun Kumar Gupta, J.@mdashThe defendant/tenant is the appellant against this judgment affirming an ejectment decree passed by learned Trial Court. Original plaintiff Smt. Aparna Roy filed a suit being Title Suit No. 367 of 1996 in the Court of learned Civil Judge (Senior Division), 2nd Court, Sealdah praying eviction and recovery of khas possession of the suit premises against the defendant/tenant, on the grounds of unauthorized change of user of the suit premises from residence to business purpose, violation of Section (M), (O) and (P) of the Transfer of Property Act by illegal permanent construction without written consent of the plaintiff and also for reasonable requirement of the same for use and occupation of original plaintiff and her family members including her married daughter. Said suit was filed after giving a statutory notice u/s 13(6) of the West Bengal Premises Tenancy Act, 1956.
2. The defendant contested said suit by filing a written statement denying material allegations of the plaint. It was contended inter alia that with the consent of the landlord he started to use the address of the suit premises as a mailing address of his business under the name and style M/s. Banani Properties and for that purpose he used to pay an amount of Rs. 450/- per month extra to the plaintiff. He denied the other allegations and prayed for dismissal of the suit with cost.
3. Learned Trial Court framed several issues. Both parties adduced evidence, both oral and documentary. Learned Trial Court after contested hearing decreed the suit and passed a decree of eviction on the ground of reasonable requirement of the suit premises by the original plaintiff and her family members and also for using the suit premises by the defendant tenant other than the purpose for which it was let out by a judgment dated 31st of March, 2004.
4. The defendant/tenant preferred an appeal being Title Appeal No. 50 of 2004 and learned Additional District Judge, Fast Track Court, 3rd Court at Sealdah dismissed said appeal after concurring with the aforesaid findings of learned Trial Court. Hence, is this second appeal at the instance of the defendant tenant. This second appeal was admitted by the learned Division Bench on the following substantial questions of law.
I. Whether the learned Court of appeal below committed substantial error of law in affirming the Decree of eviction on the ground of reasonable requirement without considering the case of partial eviction in terms of Section 13(4) of the West Bengal Premises Tenancy Act;
II. Whether the learned Court of appeal below committed substantial error of law in not taking into consideration the fact that after the death of the original plaintiff there being no further amendment of plaint, requirement of the substituted plaintiffs as per the original case can be fully satisfied from the accommodation available to the plaintiffs themselves;
III. Whether the learned Court of appeal below committed substantial error of law in passing a decree on the ground that the defendant had converted the property for business purpose, merely because the address was used for the purpose of communication to the defendant for his business;
IV. Whether in the absence of any evidence showing that any actual business was carried on in the property, the learned Courts below committed substantial error of law in passing a decree for eviction on the ground of using the property for other than residential purpose, merely because the address of the defendant was used for the purpose of his business.
5. During pendency of this second appeal the appellant/tenant filed an application being CAN No. 5676 of 2011 praying for permission to produce some documents by way of additional evidence. The appellant/tenant also filed an application being CAN No. 5678 of 2011 praying for taking note of some subsequent events as well as an application for amendment of written statement being CAN No. 5677 of 2011. At the prayer of learned counsel for the appellant/tenant said application for amendment of written statement being CAN No. 5677 of 2011 was taken up for hearing and was rejected on contest vide Order dated 8th December, 2011. However, other two applications stated above were heard along with the main appeal.
6. The appellant tenant has filed the application being CAN No. 5678 of 2011 praying to take note of some subsequent events as stated in para 8 of said application. According to said application after death of the original plaintiff (Aparna Roy) her only son Bhaskar Roy (respondent No. 1) is residing in the suit building with his wife. It is further case that the elder daughter of Mr. Bhaskar Roy has been married and is residing elsewhere with her husband. It is further case that the younger daughter of Mr. Bhaskar Roy is also residing outside West Bengal and that the daughter of original plaintiff namely Rangana Roy alias Sen (respondent No. 2) is residing in United Kingdom along with her husband and children and that she has no intention to return to Kolkata for residing in the suit building. On account of the death of original plaintiff Aparna Roy the plaintiffs do not require Thakur Ghar and that present available accommodation of the substituted plaintiffs is sufficient to cater their need.
7. The respondent landlords have, however, filed an affidavit in opposition denying those allegations and asserting inter alia that the respondent No. 1 Rangana Roy visits the suit house with her family members at least thrice a year and stays in the suit house. It is further alleged that though Ujjayanee Moitra, the elder daughter of respondent No. 1 has since been married in 2006 and presently resides at Kasba but she often stays along with her parents when her husband remains out of station in connection with his duties. It is further stated that the younger daughter Oisha Roy studies in M.S. University Baroda and often visits there for her academic commitments but resides in the suit house. It is further submitted that the requirement of the landlord did not diminish on the ground of those alleged subsequent events.
8. The appellant tenant has, however, filed an affidavit in reply denying the averments made in the affidavit in opposition.
9. The appellant tenant has filed said application being CAN No. 5676 of 2011 praying the leave of the Court for production of additional evidence. The appellant petitioner has referred to several documents, the nature of which has been described in para 9 of said application and xerox thereof was annexed with said application. According to the appellant petitioner those documents will go a long way to show that the appellant tenant along with his family members is residing in the suit premises and that those documents could not be produced earlier in spite of due diligence when the decree appealed against was passed. The respondent O.P.s. have filed an affidavit in opposition denying material allegations of the application and contending inter alia that production of those documents are not required for the purpose of disposal of the appeal and that the requirements under Order 41 Rule 27 of the CPC have not been complied and hence said application is liable to be dismissed.
10. As usual the appellant petitioner has filed an affidavit in reply denying the allegations made in the affidavit in opposition and further supporting his assertions in the original application.
11. Mr. S.P. Roychowdhury, learned senior counsel appearing for the appellant tenant, submits that after death of the original plaintiff Aparna Roy the substituted plaintiffs did not make any amendment in the plaint to justify requirement of the suit premises for their own use and occupation after said change of circumstances. He further submits that after death of the original plaintiff his daughter was substituted as one of the plaintiffs but did not state that she requires any room in the suit house for her occupation. Mr. Roychowdhury further submits that an appeal is a continuation of the suit and that the landlord must show that not only at the time of initiation of the suit but also at the time of passing of the decree in the last court the requirement of the suit premises was subsisting. In support of his contention he refers a case law reported in
12. Mr. P.K. Das, learned senior counsel appearing for the respondent landlords, on the other hand, submits that after the 1976 amendment the scope of Section 100 of the CPC has been drastically curtailed and narrowed down. According to him, High Court can interfere u/s 100 of the CPC only in a case where substantial question of laws are involved. According to him, there is no scope of reappreciating evidence and interfering with finding of fact of the learned Courts below unless it can be shown the same was contrary to law or that it was based on no evidence at all or was perverse. In support of his contention he refers case laws reported in
13. He next submits that the connotation of the term "need" or "requirement" should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. He further submits that once it is proved by landlord that the suit accommodation was required bona fide by him for his and his family members'' use and occupation and as such satisfaction withstands the test of objective assessment by the court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The court cannot thrust its own choice upon the needy.
14. In this connection he refers case laws reported in
15. He next submits that if the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family" then the requirement was both of the landlord and the members of his family and on his death the right to sue did survive to the members of the family of the deceased landlord. He further submits that many of the substituted heirs of the deceased landlord are undoubtedly the members of his family and married daughters and the children of a deceased family member in the circumstances are to be considered as members of the family of the deceased landlord.
16. In this connection he refers case laws reported in
17. I have considered the submissions made by learned counsels of the parties as well as case laws referred by them on this issue. In a case of eviction of a tenant on the ground of reasonable requirement of the suit premises by the landlord for his as well as his family members'' own use and occupation the landlord has to establish that his requirement is a genuine one. The landlord has to establish something more than a mere desire but certainly less than absolute necessity. Whether the landlord reasonably requires the suit premises or not, is certainly a question of fact. Admittedly, both the courts below came to a concurrent finding of fact that the landlords reasonably require the suit premises for their own use and occupation. However, such concurrent findings of fact of learned courts below cannot be interfered by a court of second appeal unless it is shown that the same was based on no evidence or based on extraneous matters. Again, admittedly an appeal is a continuity of the suit. So, the reasonable and bona fide requirement of the landlord must subsist till disposal of the second appeal. As such, subsequent events, if any, touching the bona fide requirement of the landlord and his family members are required to be considered by the court of appeal.
18. The requirement of the plaintiff landlady (Sunanda Roy and her family members) was projected as follows:-
19. One bedroom, one Thakur Ghar and one veg. kitchen for exclusive use of the original plaintiff, Sunanda Roy, since deceased, one bedroom for her son (respondent No. 1 and his wife), two bedrooms for her sons'' two unmarried daughters aged about 18 years and 12 years, one study room for their study, one bed room for the whole time maid servant, one drawing room, one dining room, one store room and one non-veg kitchen. So, as per said projection the respondent plaintiffs require as many as 12 rooms.
20. Admittedly, the original plaintiff Sunanda Roy has died during pendency of the appeal in the Lower Court and her heirs namely her son and daughter have been substituted in her place. In the plaint plaintiff elaborated the requirement of herself as well as her family members including her married daughter and there was also evidence on that score. As such, it did not require amendment of plaint on the account of death of the original plaintiff Sunanda Roy to further highlight the requirement of the substituted plaintiffs. During evidence in the Trial Court present respondent No. 1 as the son of the original plaintiff deposed as P.W. 1 and categorically stated that the original plaintiff''s daughter (respondent No. 2), who used to stay in America with her husband and children, comes with her family members and stays in the suit building. Learned courts below assessed said requirement of the married daughter of the original plaintiff and found it to be genuine. There is no scope of interference on that issue in this forum.
21. It appears from the averments made in the application being CAN No. 5678 of 2011 as well as the affidavit in opposition and affidavit in reply filed in connection with said application that respondent No. 1''s elder daughter has since been married and is residing in her husband''s place. It also came out that the younger daughter of the respondent No. 1 is studying in a university at Baroda. It is asserted by the respondents that said married daughter of respondent No. 1 off and on comes to the suit house to reside with her parents during temporary absence of her husband but there is neither any pleading through amendment nor any evidence to that effect. Under these changed circumstances the requirement of one bedroom for the elder daughter of respondent No. 1 cannot be considered at this stage. But in the absence of any evidence that the younger daughter of respondent No. 1 is staying permanently out of West Bengal her requirement of one bedroom cannot be denied. However, the requirement of one study room for use by the two school going sisters no longer exists in view of the subsequent admitted events. In the written affidavit-in-opposition the respondent No. 1 averred that his mother-in-law and one whole time maidservant were also staying with him in the suit house and that he requires rooms for their stay. The story of staying of the mother-in-law of respondent No. 1 is a new one and it is neither backed by evidence nor by pleadings. Admittedly, the original plaintiff Sunanda Roy has since died and her requirements namely one bedroom, one Thakur Ghar and one veg kitchen have since been evaporated. Now in view of the changed circumstances most of which are admitted, the respondents landlords require one bedroom for respondent No. 1 and his wife, one bedroom for respondent No. 2, one bedroom for respondent No. 1''s younger daughter, one drawing cum guest room for occasional stay of the married daughter of respondent No. 1, one kitchen, store room and one dining room-all total seven rooms. As per Commissioner''s report the landlords were in possession of seven rooms, one covered space measuring 20 ft. 8 inches X 6 ft, two bath and privies and one space under stairs for keeping unused articles. Out of those seven rooms two rooms one measuring 13 ft. 2 inches X 12 ft. 6 inches and one 20 ft. 6 inches X 6 ft. were used as kitchen cum dining and kitchen respectively. After the death of original plaintiff Sunanda Roy there is no longer any need for having two kitchens, one non-veg and another veg. As such, the kitchen room measuring 20 ft. 6 inches X 6 ft. can easily be used for any other purposes. Again, the covered space measuring 20 ft. 8 inches X 6 ft. can also be used for any other purpose as desired by the respondent landlords. It is thus palpable from the above discussions that in view of the admitted changed circumstances namely death of the original plaintiff Sunanda Roy and marriage of respondent No. 1''s elder daughter, the present available accommodation of the landlords substantially satisfies their requirement. Keeping in mind the principles "live and let live" I am of the opinion that in the facts and circumstances of the case there is no need of passing of any order of even partial eviction of the tenant on the ground of reasonable requirement of the suit premises by the landlords.
22. Mr. S.P. Roychowdhury, learned senior counsel for the appellant tenant, submits that learned courts below also granted eviction decree on the ground of change of user though there was practically no clinching evidence on that score. According to Mr. Roychowdhury the appellant tenant was only using the address of the suit premises as a mailing address of his business under name and style M/s. Banani Properties and that it did not amount to change of user. According to Mr. Roychowdhury, using the address of the premises as the mailing address of the tenant''s business cannot be branded as using the suit premises for a purpose other than the residential purposes. In this connection he refers a case law reported in 1985 (1) CHN 84 (Sm. Ana Ghosh vs. R.D. Anklesaria). In this connection Mr. Roychowdhury further submits that the application being CAN No. 5676 of 2011 praying for permission to produce some documents by way of additional evidence under Order 41 Rule 27 of the CPC may be allowed so that it can be shown that appellant tenant was using the suit premises for his residence and that only the address of the same was permitted to be used as the address of his business concern. In this connection he refers case law reported in
23. Mr. Das, learned senior counsel for the respondents, on the other hand, submits that if residential premises is used for any other purposes without written consent of the landlord then the tenant is liable to be evicted u/s 13(1)(h) of the West Bengal Premises Tenancy Act, 1956. In support of his contention he refers case law reported in
24. It came out from the evidence on record that the appellant tenant tried to made out a case that the address of the suit premises was only used as the mailing address of his concern namely M/s. Banani Properties and that too within the knowledge of the original landlady and for that purpose he used to pay Rs. 450/- per month in addition to the rent. However, during evidence the appellant tenant failed to establish that he obtained any consent not to speak of written consent from the original landlady or that he made any payment to her on that score. It came out from the evidence of learned courts below that this issue was thoroughly discussed by them on the basis of materials on record. It came out that no specific address of the registered office of said Banani Properties Pvt. Ltd. was disclosed either in the memorandum of association or in the certificate of incorporation of said concern. It also came out from the evidence on record that the defendant tenant has purchased a residential flat at Mayfair Road, a posh locality in Kolkata and that his wife and son are residing in America. Admittedly the suit premises was let out to the appellant tenant only for the residential purposes. Learned courts below came to a finding of fact on the basis of evidence on record that the tenant was using the suit premises for the purpose of running his business M/s. Banani Properties Pvt. Ltd. and started to reside elsewhere. Admittedly, there was no written consent of the landlady for using the suit premises other than residential purposes. Both the courts came to concurrent findings of fact on that issue in favour of the landlords and against the tenant. Admittedly, at the time of hearing of the second appeal u/s 100 of the CPC there is no scope of reappreciating the evidence as a third court of finding of fact. The appellant tenant through his application being CAN No. 5676 of 2011 has prayed for production of additional evidence as disclosed in para 9 of said application. It appears that those are copies of letter dated 20th of May, 2011 issued by Standard Chartered Bank in favour of the appellant at the address of the suit property, a copy of the income tax refund advice dated 14th of December, 2010 issued in favour of Banani Barman i.e., wife of the tenant at the address of the suit property, a copy of the telephone bill of May, 2011 in the name of the tenant at the address of the suit property, a copy of the identity card issued by the automobile association of Eastern India in favour of the petitioner tenant, a copy of the statement of account dated 31st of March, 2011 issued by ICICI Bank in favour of Banani Barman, the wife of the appellant tenant at the address of the suit property, a copy of the envelope containing the cheque book in respect of the bank account standing in the name of the appellant tenant sent by ICICI bank at the address of the suit property, a copy of the passport of the petitioner tenant showing the suit property as the permanent address. These documents by itself do not show that the petitioner tenant or his family members are residing in the suit premises as admittedly the wife and son of the petitioner tenant are residing in America. Even then, some of the documents were sent in her name in the address of the suit premises as because said address was given to the concerned authority at an earlier date. As these documents by itself are not going to establish that the appellant tenant was also continuing to use the suit premises as a residence, I am of the opinion that no useful purpose will be served by allowing this application at this stage. It is true that under Order 41 Rule 27(1)(b) a party may be allowed to produce additional evidence if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment. Said principle was elaborated in the case of K. Venkataramiah (ibid). I have already stated that those documents, in view of other evidence on record, will not be sufficient to reverse the findings of fact of learned courts below that the defendant tenant was guilty of using the suit premises for purposes other than residential purposes for over 4 months without the written consent of the landlady.
25. Accordingly, I reject said application and confirm the findings of the learned courts below on this issue.
26. As a result, the decree of eviction passed by learned courts below on the ground of violation of Section 13(1)(h) of the West Bengal Premises Tenancy Act, 1956 is hereby confirmed.
27. The applications stand disposed of accordingly.
28. The appeal is hereby dismissed on contest.
29. However, I pass no order as to costs.
30. Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
