Tarun Kumar Gupta, J.@mdashThis Second Appeal is directed against judgment and decree dated 24th of July 2000 passed by learned Civil Judge (Senior Division), Additional Court at Hooghly in Title Appeal No. 256 of 1998 affirming the judgment and decree of eviction dated 16.09.1998 passed by learned Civil Judge (Junior Division), Additional Court, Chandernagore in Title Appeal No. 30 of 1997.
2. The Respondents filed said Title Suit for eviction alleging that the Defendant who was a monthly tenant under the Plaintiffs in respect of suit premises, defaulted in payment of rent since 1992. It was further case that the Defendant/tenant caused annoyance and nuisance to the peaceful possession of the Plaintiffs and also made illegal construction by causing damage to the suit property. It was further case of the Plaintiffs that the suit premises is reasonably required for the purpose of starting of a business of multimedia studio for the son of Plaintiff No. 1, for using a part thereof as drawing room of the Plaintiffs as well as for being used by the married daughter of the Plaintiff No. 1 who has to be shifted to the suit premises. The suit was filed after serving a notice to quit dated 26th July, 1993.
3. Appellant/Defendant /tenant filed a written statement denying material allegations of the plaint and contended inter alia that No. part of suit premises is reasonably required either for starting of any business or for any other purpose and that present accommodation of the Plaintiffs was more than sufficient.
4. Learned Trial Court framed as many as ten issues. After contested hearing learned Trial Court passed a decree of eviction only on the ground of reasonable requirement of the suit premises by the Plaintiffs for starting of a business by the unemployed son of Plaintiff No. 1. Other requirements of the Plaintiffs namely using a part of suit premises for drawing room or for residence of married daughter were not entertained by learned Trial Court.
5. The appeal preferred by present Appellant/Defendant/tenant was also dismissed after contest. Learned Lower Appellate Court confirmed the judgment and decree of eviction on the same ground.
6. At the time of admission of this second appeal ground Nos. X, XI and added ground taken in the memo appeal were allowed as the grounds for hearing of this appeal. Those grounds are as follows:
(X) For that both the Courts below erred in not considering the question of partial eviction particularly when the requirement of the Plaintiff/Respondent can be satisfied by grant of such decree for partial eviction.
(XI) For that in the absence of proof of the extent of the present accommodation of the Plaintiff/Respondent No. 1, the Court of appeal below ought not to have held that the Plaintiff /Respondent No. 1 require the entire suit premises for her own use and occupation.
Added Ground
For that both the Courts below ought to have held that the suit is not maintainable as the said suit was not filed by the Plaintiff/Respondent as trustee though in terms of the Deed of Settlement the suit property vests upon the Plaintiff/Respondent No. 2 above as trustee.
7. Mr. Probal Kumar Mukherjee, learned advocate for the Appellant/tenant, has submitted that Respondent/landlords prayed for eviction of the Appellant/tenant on the ground of reasonable requirement of the suit premises for starting a business for the son of Plaintiff No. 1, for using a portion thereof as drawing room and also for occupation of a portion thereof by the married daughter of Plaintiff No. 1. According to Mr. Mukherjee landlords failed to get their available accommodation inspected by learned Advocate Commissioner to show insufficiency of accommodation. According to Mr. Mukherjee though the present available accommodation of the landlords in the first floor was not disclosed through inspection and though it came out from evidence that one of the landlords (Plaintiff No. 1) had an ancestral house some distance away from the suit holding, still learned Courts below passed a decree of abetment on the ground of reasonable requirement of the suit premises for running a business of Plaintiff No. 1''s son.
8. Mr. Mukherjee has next submitted that suit premises was required for three distinctive purposes namely starting of business by Plaintiff No. 1''s son, for using a part thereof as drawing room and also for accommodation of Plaintiff No. 1''s married daughter. Learned Courts below, according to Mr. Mukherjee, when disbelieved the requirement of landlords of the suit premises either for being used as a drawing room or for being used for staying of married daughter of Plaintiff No. 1, then learned Courts below should not have passed a decree for eviction of entire suit premises without being satisfied that partial eviction would not serve the purpose of the landlords. According to Mr. Mukherjee only after the Court is satisfied u/s 13(4) of the West Bengal Premises Tenancy Act, 1956 that partial eviction would not satisfy the requirement of the landlords then and then only there can be a decree of eviction of entire suit premises. According to him the exact requirement of Plaintiff''s son is conspicuously absent in the evidence on record and that learned Courts below should not have passed the decree of eviction for the entire suit premises when suit premises consist of two puce bed rooms, one tile shed with puce wall used as kitchen, space of bath and sanitary privy and a verandah being used as shop. According to Mr. Mukherjee in view of those glaring defects and also for violation of mandatory provisions of Section 13 (4) of the Act of 1956 the judgment of eviction of learned Lower Courts should be set aside.
9. Mr. M.P. Gupta, learned advocate for the Respondent/Plaintiffs, on the other hand, has submitted that in view of the specific evidence of the Plaintiffs that the ancestral house of P.W.1 which was situated some distance away from the suit premises was being used by other co-sharers having No. possession of the Plaintiff No. 1 therein, there was No. question of holding local inspection of said premises. Mr. Gupta has further submitted that the main requirement of the Plaintiffs of the suit premises was for starting a business of multimedia by Plaintiff No. 1''s unemployed son having requisite qualification and that Appellant /Defendant had admitted that the suit premises was situated in an ideal business place and that business of multimedia where strangers will visit frequently can only be conveniently run in the ground floor rooms being used as shop room etc. and not in a portion of first floor which is being used exclusively for residential purpose.
10. Mr. Gupta has further contended that whether landlords have reasonably requirement or not, whether their present accommodation is suitable or not, whether suit premises is reasonably required for personal use of landlord are all questions of fact and that there is No. scope of interference by this Court in second appeal u/s 100 of the Code of Civil Procedure.
11. Mr. Gupta has further submitted that it came out from evidence on record that the father (Plaintiff No. 1) who was to retire soon would join his son in said business after his retirement and that suit premises which was not a very big one was reasonably required for starting said business and that partial eviction would not serve the purpose.
12. There is no denial that there are evidence on record to show that Plaintiff No. 1''s son had requisite qualification for starting a business of multimedia and that suit premises which was situated in a business place was suitable for starting said business. It also goes without saying that a part of first floor which is being used by landlords exclusively for their residential purpose was not at all suitable for starting multimedia business where outsiders are expected to visit off and on for said business purpose.
13. Both the Courts below came to a finding of fact on the basis of evidence on record that Plaintiffs have No. other reasonably suitable accommodation elsewhere for starting said business of Plaintiff No. 1''s son and that suit premises was an ideal place for starting said business. These findings of facts are based on evidence and call for No. interference by this Court u/s 100 of the Code of Civil Procedure.
14. However, it is an admitted fact that Plaintiff/landlords initially wanted to use the suit premises for three specific purposes namely for starting a multimedia studio of Plaintiff No. 1''s son, for using a part thereof as drawing room of Plaintiffs and also for using a part thereof for staying of Plaintiff No. 1''s married daughter. Both the Courts below discarded other two requirements of Plaintiffs of the suit premises namely for using a part as drawing room or for using any part thereof for staying of married daughter of Plaintiff No. 1. As such, it boils down that Plaintiff No. 1''s son''s requirement namely starting of a multimedia business has only to be fulfilled by using suit premises. Admittedly the extent of requirement of Plaintiff No. 1''s son for running said multimedia business was not stated during evidence. When Plaintiffs wanted to use the suit premises not only for running business of Plaintiff No. 1''s son but also for other purposes, it has to be presumed from the aforesaid conduct of the Plaintiffs that entire suit premises was not required for running said multimedia business of Plaintiff No. 1''s son. Learned Lower Appellate Court did not deal with the question of suitability of partial eviction by keeping reliance on case law reported in 1992 (2) CLJ 215. I am afraid that learned Lower Appellate Court failed to appreciate the ratio of the above referred case law. In said referred case law a Division Bench of this Court held that in a suit where Trial Court had come to a conclusive finding that all rooms were required for Plaintiff''s own use in an abetment suit to meet his reasonable requirement, there was No. scope of partial eviction and that the question of partial eviction arises only when there is scope of meeting the requirements of the landlords by partial eviction. In the case in hand, there is No. discussion in the judgment of the learned Trial Court that partial eviction will not meet the requirement of the landlords for the purpose of starting said multimedia business of Plaintiff No. 1''s son. As such, it is clear that none of the Courts below considered the question as to whether starting of business of multimedia by Plaintiff No. 1''s son can be effected by partial eviction or not. Before granting an order of eviction on the ground of reasonable requirement u/s 13(1) (ff) of the West Bengal Premises Tenancy Act, 1956 the Court should have decided u/s 13(4) of the said Act as to whether reasonable requirement of the landlords would be satisfied by partial eviction or not and if the answer is in the affirmative then whether the tenant is agreeable or not and if the tenant is not agreeable and/or the suit property was not partition able then, of course, the decree for abetment had to be passed for entire suit premises, but if the tenant was agreeable and suit premises was partition able, then the decree for partial eviction after fixing rent to be paid by the tenant for the remaining portion to be used by him, has to be passed. Section 13(4) of the Act is a mandatory statutory requirement and cannot be bypassed by a Court of law while granting a decree of abetment on the ground of reasonable requirement of the landlords.
15. No other point was agitated before me during hearing.
16. In view of the above discussions the case is remanded back to the learned Lower Appellate Court after setting aside the judgment and decree of eviction, only for deciding as to whether partial eviction of the Appellant /tenant from the suit premises will serve the purpose of starting a multimedia business by Plaintiff No. 1''s son in a part of the suit premises and whether Appellant /tenant is agreeable or not and also whether the suit premises was partition able for that purpose or not and in case of partial eviction the rent to be payable by tenant for the remaining portion. Learned Lower Appellate Court shall give opportunity to the parties to give further evidence, if any, only on these limited points. Thereafter he shall record his findings on the basis of evidence already on record and further evidence, if any, touching these points only preferably within three months from the date of receipt of the case record.
17. Appeal stands disposed of accordingly.
18. However, I pass no order as to costs.
19. Office is directed to send down Lower Court record along with a copy of this judgment to the learned Lower Appellate Court within a week without fail.
20. Urgent Xerox certified copy of this judgment is supplied to learned Counsel/Counsels of the parties, if applied for.
