Chittatosh Mookerjee, J.@mdashThe defendant appellants of these six appeals held six tenancies in respect of the different portions of the ground floor of Premises No. 49A, Nirmal Chandra Street, P. S. Muchipara, Calcutta-12. While the tenancy of the defendant appellant of F. A. No. 69 of 1979 (arising out of Ejectment Suit No. 726 of 1975) was for residential purposes, the remaining appellants were carrying on their businesses in their respective rooms let out to them. On 8th January, 1971, the previous landlord, Gobinda Dulal Srimani, by a registered conveyance sold the said Premises No. 49A, Nirmal Chandra Street to the plaintiff respondent nos. 1 and 2. After serving upon the defendant tenants notices u/s 13(6) of the West Bengal Premises Tenancy Ac, 1956, on 29th June, 1975 the plaintiff respondents had instituted in the City Civil Court at Calcutta six ejectment suits against the defendant tenants, inter-alia, on the allegation that they reasonably required the said premises u/s 13 (1) (ff) of the West Bengal premises Tenancy Act for their own use and occupation and also on the ground of default in payment of rent under clause (i) of sub-section (1) of section 13 of the said Act. The plaintiff respondent in Ejectment Suit No. 726 of 1975 (corresponding to F. A. 69 of 1979) claimed that they were also entitled to recover possession on the grounds of subletting and of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. The defendant tenants contested the said suits by-denying the allegations made by the plaintiff.
2. The learned Judge, 2nd Bench, City Civil Court at Calcutta analogously tried the said six ejectment suits and by his judgment dated 20th December, 1978 passed decrees for recovery of possession in favour of the plaintiff respondents under clause (ff) of sub-section (1) of section 13 of the West Bengal Premises Tenancy Act. The learned Judge of the Court below, however, rejected the case of the plaintiff that Sonabati Devi, the defendant in Ejectment Suit No. 726 of 1975 had committed violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. The learned Judge of the court below further found that the defendants in all the six suits had complied with the orders passed under sub-section (2A) of section 17 of the West Bengal Premises Tenancy Act and therefore, no decree for ejectment on the ground of default could be passed against them. In other words, the learned Judge of the court below had granted them relief under the main part of sub-section (4) of section 17 of the West Bengal Premises Tenancy Act, 1956.
3. The defendants, being aggrieved by the said decrees for their ejectment u/s 13(1) (ff) of the West Bengal Premises Tenancy Act, filed the instant six appeals. When these appeals first came up for hearing, we made a remand order under Order 41 Rule 25` of the CPC for recording by the trial court finding on two issues. The first issue was whether the plaintiffs were already in occupation of the any other reasonably suitable accommodation and secondly whether the plaintiffs still reasonably require the suit premises for their own use and occupation. The learned Judge of the court below after recording further evidence has answered both the said additional issues in favour of the plaintiffs. The defendants filed Memoranda of Objections against the said findings and the appeals were placed for further hearing.
4. Mr. S.C. Mitter, learned advocate for the defendant appellants, has submitted that the plaintiff has not proved their case of reasonable requirement and they were already in occupation of reasonably suitable accommodation for their residential and business purposes. Before we consider the evidence on record on the above two questions, we may dispose of the contention of Sonabati Devi, the appellant in F. A. No. 69 of 1979 (arising out of Ejectment Suit No. 726 of 1975) that the notice dated 6th March, 1975 by the plaintiff addressed to the defendant of the said Ejectment Suit No. 726 of 1975 was invalid because the same was in respect of only a part and not the entire tenancy held by her.
5. The Supreme Court in
6. The defendant, Sonabati Devi, was previously a tenant in respect of the back portion of the entire Premises No. 49, Nirmal Chandra Street which was later sub-divided into Holding Nos. 49A and 49B, Nirmal Chandra Street. The ejectment notice issued by the plaintiff respondents mentioned the three rooms which now form, part of the back portion of No. 49A, Nirmal Chandra Street and also a portion of the courtyard appertaining thereto. The description "part of the courtyard" or other minor inaccuracies in the description of the boundaries of the tenancy held by Sonabati Devi were not fatal because the defendant Sonabati Devi was fully conversant with the facts and she was not misled by the said minor discrepancies in notice. The defendant, Sonabati Devi, herself claimed that she had erected tin sheds in the said courtyard. Therefore, it was not necessary to mention in the said notice u/s 13(6) of the West Bengal Premises Tenancy Act, the said two tin sheds erected by the defendant tenant. The notice u/s 13(6) of the West Bengal Premises Tenancy Act fully conveyed to the defendant, Sonabati Devi, that the plaintiffs intended to file a suit for recovery of possession of the entire premises held by hereon the grounds mentioned in the said notice. The plaint of the ejectment suit also indicated that the same was for evicting the defendant, Sonabati Devi, from her entire tenancy and not from a portion thereof. Therefore, we reject the appellant''s contention that the Ejectment Suit No. 726 of 1975 was bound to fail on the ground of partial eviction.
7. We may now proceed to consider the plaintiff''s case u/s 13(1) (ff) of the West Bengal Premises Tenancy; Act, 1956. The plaintiff No. 1 is the husband and the plaintiff no. 2 is his wife. At the time of the hearing in the court below, their son was aged 15 years and their daughter was aged 10 years. We agree with the finding of the trial court that the plaintiff with their children have been residing as monthly tenants in a portion of Premises No. 17|1|A, Madan Dutta Lane at a rent of Rs. 225/-per month. It is no longer disputed be fore us that the plaintiffs occupied two rooms, one kitchen, one store room at 17/1/A, Madan Dutta Lane. The plaintiffs held a separate tenancy at a rent of Rs. 55/- per month in respect of a ground floor room of Premises No. 17/1/A, Madan Dutta Lane which was being used as the workshop for the plaintiff No. 1 is jewellery business. The plaintiff No. l is a tenant in respect of shop room at 163. Bipin Behari Ganguli Street (formerly Bowbazar Street) under Arun Kumar sen and others at a monthly rent of Rs. 100/-. In the said shop room the plaintiff No. 1. carries on jewellery business under the name and style M/s. R.C. Dey''s Grandson. The plaintiff No. 2 and held another tenancy in respect of a shop room at 122, Bipin Behari Ganguli Street at a rent of Rs. 95/- per month. Sri Achyutanand Dey the plaintiff No. 1 in his further evidence given after remand stated that the shop room held by them at 122, Bowbazar Street was now lying vacant. At the time of the hearing of these appeals, the learned advocate for the plaintiffs did not dispute that at present the plaintiffs were running their jewellery business only from the shop room at 168, Bowbazar Street. We reject the defendants'' claim that the plaintiffs had been residing at 2A, Chunapukur Lane which was the dwelling house of the father of the plaintiff no. 1. The defendants by adducing cogent evidence could not controvert the claim of the plaintiff no. 1 (P. W. 7) that after the death of his mother, his father had married second time and since his early age the plaintiff no. 1 had been living apart from his fattier. At the time of the hearing of the case the plaintiffs'' ration cards were produced to corroborate that he with his family resided at 17/1/A, Madan Dutta Lane. We also agree with the trial court that the plaintiffs were not already in occupation of any other reasonable suitable accommodation for residential purposes either at 17/1/A Madan Dutta Lane or anywhere else. The two bed rooms, kitchen and store room in the first floor of Premises No. 17/1/A, Madan Dutta Lane were inadequate and insufficient for the needs of the two plaintiffs and their children. Therefore, we believe the case of the plaintiffs that they reasonably require to use a portion of Premises No. 49A. Nirmal Chandra Street for use as their residence. We shall at present take up the extent of residential accommodation required by the plaintiffs.
8. It transpired from evidence adduced after remand that the plaintiffs had also purchased Holding No. 3, Gokul Baral Street. P. W. 7, Achyutanand Dey, in his further evidence was no doubt somewhat hesitant in admitting that he had already obtained Corporation sanction in respect of a plan prepared for making construction at 3, Gokul Baral Street but as yet the plaintiffs have not erected any building at 3, Gokul Baral Street. The defendants did not even allege that any suitable accommodation either for residential or for business purposes was at present available to the plaintiff''s at 3. Gokul Baral Street. Therefore, while considering the plaintiffs case of reasonable requirement and availability to them of any alternative suitable accommodation, the said Premises No. 3, Gokul Baral Street must be left out of our consideration.
9. The plaintiff''s family consists of the husband and the wife, a son and a daughter. Therefore, their claim for two bed rooms and one study room for the children was reasonable. The plaintiffs were entitled to claim one dining room, and one drawing room a kitchen and a store. We, however, reject the plaintiffs'' claim that they would also require two rooms for use as office and guest room. The plaintiffs were already occupying two shop rooms for carrying on jewellery business. The plaintiffs have not proved that they would require a separate office room for their said jewellery business. They have also not claimed that the plaintiffs or either of them employed any employee for working in the said office room besides the staff required for running the jewellery business of the plaintiff no. 1. The plaintiff no. 2 was not admittedly carrying on any business in her tenanted room at 122, Bipin Behari Ganguli Street. According to the plaintiff no. 1, his father in-law looked after his wife''s bank account and income tax papers. It does not even appear that the plaintiff at the trial of the case either before or after remand had ever seriously pressed their claim for a guest room and an office.
10. We are also not inclined to allot a separate room for use as thakur ghar The plaintiffs in their plaint did not aver that they required any accommodation for their deity. P. W. 7. Achyutananda Dey the plaintiff no. 1, during his examination-in-chief did not also claim that he required any accommodation for installing their family deity. The plaintiff no. 2, Aparna, the wife of Achyutananda, P.W. 8, however, stated in her examination-in-chief that they needed two bed rooms, one study room, one thakur ghar and one draw-room. She denied the suggestion that no thakur was found in their house when the Commissioner went to inspect their present accommodation (at 17/1 A, Madan Dutta Lane). She admitted that the plaintiffs had no deity in their said flat. According to her, their deity was at present in the house of the plaintiff no. 2''s father. She had kept the deity there as there was no room available for use as thakur ghar. During her cross-examination, she had further admitted that she had no deity in her flat but she would establish the deity if she got accommodation. After remand the plaintiff no. 1 (P. W. 7) gave further evidence but he did not at all mention about requirement of a separate room for their deity. We hold that the plaintiffs have not proved that they worshipped any deity or that a separate room was reasonably required for use as thakur ghar.
11. The plaintiffs also claimed that they would require one room for the servant and the Darwan employed by them. In our view, there is no reason to disbelieve that the plaintiffs employed atleast one servant and dorwan Therefore requirement of one room, for their use would be reasonable. Thus for residential purposes the plaintiffs reaonably require two bed rooms, one study room, one dining room, one drawing room, servant''s room, kitchen and store and in addition they would require bath and privy. Admittedly, the plaintiff were already in occupation of the four rooms in the first floor of Premises No. 49A, Nirmal Chandra Street. We believe the claim of the plaintiffs that they themselves have not occupied the said first floor rooms because the same were not sufficient for their needs. The plaintiffs also proved that they had obtained sanction from the Corporation of Calcutta for addition and alterations of Premises No. 49A, Nirmal Chandra Street. The plaintiffs have also proved that they have sufficient means. According to the said plan in place of the existing stair case in the courtyard a new stair-case was proposed to be erected in the front portion of the house abutting one Nirmal Chandra Street. In place of the existing stair-case a privy and bath block was proposed to be constructed in the eastern portion of the suit premises. In our view, the plaintiffs have satisfactorily made out their case for evicting Sonabati Devi, the defendant-appellant in F. A. No. 69 of 1979 (arising out of Ejectment Suit No. 726 of 1975) because in addition to the four existing first floor rooms, they would reasonably require all the three rooms in occupation of the said defendant-appellant Sonabati Devi, and also the courtyard comprised in her tenancy. We have already found that the existing structures in the courtyard were proposed to be pulled down and a privy and bath block was proposed to be constructed for use of the plaintiffs. The new stair case on the western side of the Premises No. 49A, Nirmal Chandra Street was proposed to be erected in the space now occupied by Sampad Devi, the defendant appellant in F. A. No. 94 of 1979 (arising out of Ejectment Suit No. 728 of 1975). Therefore, we hold that the plaintiffs also reasonably require the said shop room which is the subject matter of F. A. No. 94 of 1979 arising out of Ejectment Suit No. 728 of 1975, The plaintiffs did not aver in their plaint that they possessed a motor car but for the first time at the time of the trial the plaintiff no. 1 purported to depose that he owned a motor car and that he had taken on rent of Rs. 90/- per month a garage at 60A, Madan Dutta Lane. The plaintiffs have not proved that their rented garage was not reasonably suitable or that they proposed to give up the said garage. Therefore, we hold that the plaintiffs have failed to prove that they reasonably require any accommodation for garage at 49A, Nirmal Chandra Street. We have already accepted their case that the plaintiffs resonably require the first floor and a portion of the ground floor of 49A, Nirmal Chandra Street for their residential purposes. We have already held that the defendant of F. A. No. 94 of 1979 (arising out of Ejectment Suit No. 728 of 1975 ) should be evicted to satisfy the plaintiff''s requirement respectively for construction of a stair-case. We, however, uphold the requirement of the plaintiff''s for one room for occupation by their servants and darwan. The shop room which is the subject-matter of Ejectment Suit No. 727 of 1975 (F.A. No. 93 of 1979) appears to be suitable for satisfying the plaintiff''s need for a servants room. The two rooms which are subject-matter of F. A. No. 93 and 94 of 1970, would form one compact block on the south western portion of Premises No. 49A, Nirmal Chandra Street and would also fulfil the plaintiff''s aforesaid requirements. Therefore, these three appeals ought to be dismissed.
12. We now take up the question whether or not the plaintiff''s require any accommodation for carrying on their jewellery business at 49A, Nirmal Chandra Street. P.W. 7 in his further evidence after remand had admitted that at present no business was being carried on by them in the rented room at 122 Bipin Behari Ganguli Street (formerly known as Bowbazar Street). P. W. 7, Achyutananda De, stated that his wife''s shop room at 122, Bipin Behari Ganguli Street (Bowbazar Street) was lying vacant. According to P. W. 1 another tenanted shop room at 168, Bowbazar Street was a running shop. At present his jewellary workshop is situated in the ground floor of his tenanted residential flat at 17/1/A, Madan Mitra Lane. He had no workshop at No. 168 Bipin Behari Ganguli Street.
13. We are unable to believe the plaintiff''s case that they really intended to remove their jewellery business to the ground floor of Premises No. 49A, Nirmal Chandra Street. Neither PW 7 nor PW 8 had claimed that the said accommodation in the tenanted room at 168, Bowbazar Street was insufficient or that they had any difficulty on account of shortage of space. No evidence has been given about the volume of the business carried on in the shop room, situated at 168, B. B. Ganguli Street (Bowbazar street). The plaintiffs did not allege that the landlord of the said shop room at 168, B. B. Ganguli Street was threatening to evict the plaintiffs or that in any other manner the occupation of the said shop room had become precarious.
14. PW 7 in his evidence before remand had admitted that his jewellery shop was situated in a locality where there were other jewellery shops. The jewellery shops in that area were more than other kind of shops. At the trial the learned advocate for the plaintiffs respondents did not dispute that it is common knowledge that a large number of jewellery shops are situated on both sides of Bowbazar Street ( Bipin Behari Gauguli Street) in the vicinity of the plaintiff''s rented shop room at 168, B. B. Ganguli Street (Bowbazar (Street). Therefore it was not believable that only in order to avoid payment of rent for his said shop room the plaintiffs would move away from the said locality where a large number of jewellery shops were located and that they would establish their shop room in an area where there was no other jewellery shop. We may note that the defendants were at present carrying on iron and steel business In the ground floor of the suit premises. We accept the contention of the defendant appellants that the plaintiffs have no real intention to shift their jewellery business to 49A, Nirmal Chandra Street. We also reject the plaintiffs case that they require any accommodation at 49A. Nirmal Chandra Street for shifting jewellery workshop. Again plaintiffs did not allege or prove that the existing rented accommodation for their workshop was insufficient or that it was unsuitable in any other way. The plaintiff no. 1 did not claim that he was required to be personally present in the workshop room or he would suffer any inconvenience if his workshop is continued to be located at Premises No. 17/1/A, Madan Dutta Lane which was presumably close to their shop room at 168, Bipin Behari Ganguli street. Again there was no allegation that the landlords of the said premises was attempting to evict the plaintiffs from the said room used as the workshop of the plaintiffs.
15. We conclude that the plaintiffs have failed to prove that they reasonably require accommodation at Premises No. 49A, Nirmal Chandra Street for establishing their jewellery shop and the workshop for their said business. Upon consideration of the evidence, we have disbelieved this portion of the plaintiffs case and, therefore, in computing the total number of rooms required by the plaintiffs, we must leave out of our consideration the accommodation claimed by the plaintiffs for their jewellery shop and workshop. Merely because the plaintiff''s jewellery business and workshop are situated in a tenanted premises cannot warrant a conclusion that the plaintiff''s reasonably require for the said purposes is reasonable and that their tenanted accommodation are not reasonably suitable.
16. The Courts of Law have consistently held that the use of the expression "reasonably require" cannotes "genuine present need" and not mere desire or wish on the part of the landlord, who is also the owner, to occupy the premises let out by him. But it is unnecessary for the landlord to prove absolute necessity. While determining the issue of reasonableness of the landlord''s requirement, the Courts of Law have always considered whether the landlord has need or necessity for occupying the premises let out by him in the light of the facts and circumstances of each particular case.
17. Undoubtedly, In deciding the question of reasonableness or otherwise of the landlord''s requirement of a premises for his own use and occupation, among other things, the court is bound the decide whether the present accommodation in plaintiff landlord''s occupation is reasonably suitable. The courts have always considered whether his existing accommodation is appropriate or proper for him, i.e., whether or not if satisfies the plaintiff''s requirements. Therefore, even before the old clause (f) was deleted and new clause (ff) was inserted in sub-section (1) of section 13 of the West Bengal Premises Tenancy Act, 1956, the courts of law have taken into consideration the existing accommodation of the landlord in judging the reasonableness or other wise of the plaintiff''s requirement for his own use and occupation of a premises ( see
18. The possession of a tenant who enjoys statutory protection against eviction under a Rent Control Legislation cannot be called precarious without reference to all the facts and circumstances of each particular case. The plaintiff''s existing tenanted accommodation may be inadequate or otherwise unsuitable, for example, when his landlord is trying to evict him from his tenanted accomodation, the occupation of the said tenanted accommodation might be termed unsuitable.
19. Therefore, it would be much better not to lay down any a priori proposition with regard to the meaning of the expressions "reasonably required" and "reasonably suitable accommodation" and it ought to be left to the court to consider and weigh the evidence adduced in each case and to decide the question of landlord''s reasonable requirement in accordance with law. Any straight-jacket statement of law on the above points may lead to injustice and might defeat the very object of enacting section 13(1) (ff) of the West Bengal Premises Tenancy Act. In order to decide the question of "reasonably suitable alternative accommodation", the court might consider both the extent and the character of the plaintiff''s existing accommodation, convenience, comfort, desirability etc. (see Meggary on Rent Control, 12th Edn., Vol. I, pages 303-304). Mr. Banerjee, learned advocate for the appellant, has placed before us a number of reported cases in which the plaintiff land lord in a suit u/s 13(1) (ff) of the West Bengal Premises Tenancy Act was in possession of some accommodation either as a licensee or as a tenant and on facts it were held that the plaintiff was not in possession of reasonably suitable accommodation (vide Tarasundari Dassi v. Dukha Haran Mukherjee, 1975 (1) CLJ 316, Haraprasad Biswas v. Bamdeb Roy, 1977 (2) CLJ 19 and
20. For the foregoing reasons, we dismiss F. A. Nos. 69, 93 and 94 of 1970 without any order as to costs. We allow F. A. Nos. 95, 96 and 97 of 1970 without costs and set aside the judgments and decrees passed by the trial court and dismiss the said ejectment suits. We grant time for one month to the appellants in F. A.s 69, 93 and 94 of 1979 to vacate the suit premises. If within 25th November. 1982 these appellants file an undertaking to this court to deliver up vacant possession, they will be granted time till the end of 31st March, 1983 subject to their going on depositing per month the current damages at the rate last paid within the 15th day of each succeeding month according to English calendar the first of such deposit be made within the 15th December, 1982 and in default of payment for any one month, the decree shall become executable. If deposited, the plaintiff respondent will be entitled to withdraw the same without prejudice and without security.
R.K. Sharma, J.
I agree.
