PROJECT ON LAND LAW INCLUDING

TENURE AND TENANCY SYSTEM

SMT. ILA BANERJEE V/S RAJKUMAR CHAKRABORTY 2019

Name : Akash Agrawal

Semester : Fourth (IV)
Roll No. : BUR 2018/705/6
Burdwan University Registration No. : A00024 OF 2018-2019

BENGAL LAW COLLEGE

BITM Campus, Gopalnagar, Sriniketan Bypass, P. O. - Doranda ,
Santiniketan - 731236, Birbhum

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 TABLE OF CONTENTS

SL. NO. PARTICULARS PG NO:

1 INTRODUCTION 3-4

5-10
2 BACKGROUND

3 PARTICULARS 11-12

3 13-14
QUESTION OF LAW

10 15-16
CONCLUSION

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 INTRODUCTION
The appellant as plaintiff filed Ejectment Suit/Case No.5 of 2005 against the
defendants/respondents praying for eviction and recovery of possession of the tenanted
premises (hereafter referred to as "suit premises") in the 3rd Court of learned Judge,
Presidency Small Causes Court on the grounds of default in payment of rent and
reasonable requirement. The trial court decreed the suit by a judgment and decree
dated 25th August 2009 holding, inter alia, that the defendants/respondents were
defaulters in payment of rent.

The trial court, however, found that the plaintiff/appellant failed to prove her case of
reasonable requirement and she was not only to any decree on the said ground of
reasonable requirement. The defendants/respondents preferred an appeal before the
learned Chief Judge, City Civil Court at Calcutta.

The learned Judge in 1st Appellate Court allowed the appeal by setting aside the
judgment and decree that was passed by the trial court on the ground that the
defendants were not defaulters in payment of rent.

Raising some substantial questions of law, the plaintiff/appellant has preferred the
instant appeal being aggrieved by and dissatisfied with the judgment and decree passed
on 31st May 2013 passed by the learned 5th Judge, City Civil Court at Calcutta in Title
Appeal No.1 of 2010.

The said appeal was admitted for hearing by the Division Bench of this Court vide
order dated 4th September, 2014. The Division Bench while admitting the appeal
formulated the following substantial questions of law:

a) Whether the learned Courts below committed substantial error of law in holding that
the plaintiff did not reasonably require the demised premises.

b) Whether the leaned Appellate Court erred in law in holding that there was no default
in making payment of rent.

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 Calcutta High Court

(Appellete Side)

Smt. Ila Banerjee vs Raj Kumar Chakraborty

on 30 July, 2019.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI

 SA 344 of 2014

 Heard on: July 22, 2019

 Judgment on: July 30, 2019

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 BACKGROUND

The plaintiff/appellant is the owner of premises No.17 Vidyasagar Street, Calcutta-9 by

purchase. One Ani Kumar Chatterjee, since deceased was a tenant in respect of the suit
premises under the erstwhile owner, Subrata Mondal. After sell of the suit house in
favour of Smt. Ila Banerjee appellant herein, her vendor being the original landlord
issued Letter of Attornment on 24th March, 2004 informing the tenant that he had sold
out the suit house to the appellant and also requesting him to pay monthly rent at the
rate of Rs.200/- payable according to English calendar month to the appellant. It was
the case of the plaintiff that the defendant/tenant was a defaulter in payment of rent
since May, 2002. Further case of the plaintiff was that she reasonably required the suit
premises for her own use and occupation as well as for her family members.

According to the plaintiff, her family consist of herself, her husband, married son,
daughter-in-law and their minor child. Her husband is a qualified engineer. He retired
from service and wanted to start the consultancy business pertaining to his field of
expertise. Both the son and daughter-in-law of the plaintiff are qualified doctors for
paucity of accommodation of the suit house they have been residing in a house at Garia
as licensees. Two rooms are absolutely necessary in the suit house for their medical
profession to be used as professional chambers. Plaintiff also claimed one room to be
used as a study room for her minor grand-son.

Mother-in-law of the plaintiff/appellant and defendant widow sister-in-law is residing

at Nabadwip. One room is also required to accommodate them in the suit house.

According to the plaintiff she is in occupation of two rooms on the first floor and one
dilapidated room on the second floor of the suit house. The second floor room is not at
all habitable. Present accommodation of the plaintiff is not at all suitable in comparison
to her bona fide need and requirement. Therefore, she determined tenancy of the
defendant/tenant by a notice under Section 6(4) of the West Bengal Premises Tenancy
Act, 1997.

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The defendant/tenant refused to accept the said notice when it was tender to him and
the postal cover containing notice was returned to the plaintiff with an endorsement
"not claimed". Finally, the plaintiff filed the suit against the defendant/tenant.

During pendency of the suit the original tenant had expired. His legal heirs and
representatives were substituted in place of deceased defendant/tenant. They contested
the suit in the trial court by filing written statement. The defendants denied the
allegation that they had defaulted in payment of rent since May, 2002. It is the specific
case of the defendants/respondents that Mr. Subrata Mondal, the original
plaintiff/appellant refused to accept rent for the month of May, 2002.

Accordingly the respondents went on depositing rent in the name of the erstwhile
landlord from the month of May 2002 in the office of the Rent Controller. The
respondents further pleaded that after receiving Letter of Attornment, he started
depositing rent in the credit of the plaintiff before the Rent Controller from the month
of March, 2004 as the plaintiff/appellant had refused to accept rent which was tendered
to her by the original tenant. Since March, 2005, the defendant deposited rent in the
trial court regularly in compliance of the statutory provision contained in Section 7 of
the said Act. The defendant/respondent also denied the story of reasonable requirement
of the plaintiff for herself and her family members.

On the pleading of the parties, the learned trial court framed as many as seven issues.
Issue No.4 pertains to the dispute as to whether the defendant/tenant was a defaulter in
payment of rent. The learned trial judge on due consideration of evidence on record
held that the defendant/tenant defaulted in payment of rent for the period between
May, 2002 and February, 2005. The issue on reasonable requirement was decided
against the plaintiff. However, ultimately, suit was decree on contest against the
defendant on the ground of default by the learned trial judge.

The lower court of appeal, however reversed the judgment and decree passed by the
trial court holding, inter alia, that the learned trial court had no authority to decide as to

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whether deposits of rent from the month of May, 2002 to February, 2005 were valid or
not because rent for the said period was deposited to the Rent Controller before
institution of the suit and the court has no authority to consider whether the presuit
deposits were valid or not. Learned Judge in 1st Appellate Court concurs with the
finding of the learned trial court on the issue of reasonable requirement. Accordingly
the appeal was allowed and judgment and decree passed in Ejectment Suit/Case No.5
of 2005 were reversed.

I have already recorded substantial questions of law formulated by the Division Bench
of this Court at the time of admission of the appeal. I like to deal with the question as
to whether the learned Appellate Court erred in law in holding that there was no default
in making payment of rent first.

Section 7 of the said Act has saddled the tenant with a mandatory obligation in an
eviction suit filed on any ground specified in Section 6 of the said Act to pay to the
landlord or deposit with the Civil Judge of arrears of rent, calculated at the rate of
which it was last paid and pay to the end of the month previous to that in which the
payment is made together with interest at the rate of 10% per annum. Sub-section (3)
of Section 7 of the said Act, however, stipulates that if the tenant fails to deposit or pay
any amount referred to in Sub-section 1 or Sub-section 2 within the specified period of
time or within such extended time as may be granted, his defense against delivery of
possession shall be struck out and the court shall proceed with the hearing of the suit.

It is found from the lower court record that the original defendant/tenant filed an
application dated 11th April, 2005 stating, inter alia, that he deposited rent in respect of
the suit premises up to the month of February, 2005 at the rate of which it was last paid
to the landlord in the office of the Rent Controller, Calcutta. Now he intended to
deposit the monthly rent from the month of March, 2005 in the name of the
plaintiff/appellant. On perusal of the said application, there cannot be any doubt that it
was filed under Section 7(1) of the said Act. It is important to note that the
defendant/tenant did not make any application under Section 7(2) of the said Act
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depositing the existence of the relationship of landlord and tenant between the parties
to the suit. A Letter of Attornment was issued by the original landlord Subrata Mondal
to the original defendant/tenant was marked as Exhibit-5 during the trial of the suit. By
the said letter, the defendant/tenant was informed that the said Subrata Mondal had
sold out the suit house to the plaintiff/appellant by a deed of conveyance dated 22nd
September, 2003.

The tenant was further directed to pay rent to Smt. Ila Banerjee in respect of the
tenanted premises. On perusal of the postal receipt and acknowledgement card
(Exhibit-5/a) and 5/b) it is ascertained that the original defendant/tenant received the
said letter. It is further found from the Exhibit-5 that the defendant was inducted by
one N.K Mitra in the suit premises as a tenant. The heirs of the said N.K. Mitra sold
out a portion of premises No.17, Vidyasagar Street in favor of Smt. Ila Banerjee to the
appellant herein by a registered deed of sale dated 28th May 2002. One Subrata
Mondal was the owner of undivided back portion of the said premises No.17,
Vidyasagar Street. Subrata Mondal sold out his portion in favor of the
plaintiff/appellant by a registered deed of conveyance dated 22nd September, 2003.
The said deed of conveyance was marked as Exhibit-2 during the trial of the suit.

From the evidence of the respondent No.1 who deposed in the suit as DW1, it is
ascertained that on receipt of a Letter of Attornment, her husband lawfully deposited
rent in the office of Rent Controller, Calcutta in the credit of the previous landlord
namely Subrata Mondal from the month of May 2002 to February, 2004. DW1 further
admitted that her husband, the original tenant received Letter of Attornment dated 24th
March, 2004 from Subrata Mondal and since March 2004 to February, 2005 he
deposited rent in the office of the Rent Controller in the credit of the present
plaintiff/appellant. Subsequently he entered appearance in the suit and went on
depositing rent in the name of the present appellant.

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 Mr. Siddheswar Chandra, learned Advocate for the appellant submits that Section 21
of the said Act lays down the circumstances under which the tenant will be entitled to
deposit rent with the Rent Controller. First the tenant would tender rent to the landlord
within the prescribe period of time. If the tenant refuses to accept such rent, the tenant
shall take the next course by remitting the rent to the landlord by postal money order
within 15 days of such refusal. If the landlord refused to accept rent by postal money
order, the tenant may deposits such rent with the Rent Controller within 15 days from
the date of which the money order is returned to the tenant by the postal authority as
undelivered.

It is urged by Mr. Chandra that the tenant failed to prove that before depositing rent
with the Rent Controller he sent rent by money order to the appellant and the appellant
refuse to accept the same. Therefore, all deposits of rent with the Rent Controller are
invalid deposits and the tenant should be held defaulter in respect of payment of rent
from the month of March, 2002 up to the month of February, 2005. The learned Judge
in Lower Appellate Court failed to consider such mandatory requirement of Section 21
of the said Act.

On perusal of the evidence of DW1, it is found that the defendant/tenant started

depositing rent with the Rent Controller, Calcutta since the month of previous landlord
Subrata Mondal who is the vendor of Smt. Ila Banerjee, the appellant herein. Subrata
Mondal never raised any dispute with regard to payment of rent or deposit of rent by the
tenant with the Rent Controller during the period when he was the landlord.
Subsequently on 24th March, 2004 he sent a Letter of Attornment to the tenant
requesting him to pay rent to the appellant. On receipt of such Letter of Attornment the
defendant credited amount of rent from the month of March 2004 up to February, 2005
with the Rent Controller in the name of the plaintiff/appellant.

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When Subrata Mondal, the erstwhile landlord preferred not to raise any dispute with
regard to noncompliance of preconditions contained in Section 21 of the said Act, the
subsequent landlord, in my considered view cannot raise such dispute and plead that the
defendant/tenant was a defaulter in payment of rent since May, 2002.

In other words in May 2002, there was no relationship of landlord and tenant between
the appellant and the predecessor of the present respondents. When the rent was being
deposited with the Rent Controller in the name of the previous landlord and on receipt
of Letter of Attornment (Exhibit-5) the tenant started depositing rent in the name of the
present landlord, the tenant cannot be held to be defaulter for noncompliance of section
21(2) of the said Act so far as it relates to remitting rent to the landlord by money
order. I am, accordingly of the view that the learned Judge in Lower Appellate Court
did not commit any error of law in holding that the respondent were not defaulter in
respect of payment of rent.

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 PARTICULARS

During trial of the suit the husband of the plaintiff/appellant gave evidence as PW1 in
his examination in chief he stated that the son, daughter-in-law and the grand-son of
the plaintiff are residing at the premises No.14, Kendua Main Road, Garia as licensees.

Status of the son, daughter-in-law and grand-son of the plaintiff in the said house is of
course that of licensees which both the Courts below ignored to consider. Both the
Courts below held that the appellant suppressed her accommodation available at
premises No.14, Kendua Main Road, Garia. Learned Advocate for the appellant
placing reliance on the decision of the Hon'ble Supreme Court in M.L Prabhakar vs.
Rajib Singal reported in (2001) 2 SCC 355 submits that where the landlord had not
mentioned anything in the plaint about the premises belonging to him or his wife, but
material about them had been placed before the Rent Controller as well as High Court
and the question as to the accommodation in the said premises had been adequately
dealt with, it and ought to be held that no prejudice was cast to tenant.

The fact situation of M.L Prabhakar (supra) is distinguishable from the instant case. In
the said decision the landlord and his wife were owner of two other houses which was
not disclosed in eviction petition. In the instant case it was ascertained from the PW1
in his cross examination that his father-in-law is the owner of premises No.14, Kendua
Main Road. Neither the appellant nor her husband is the owner of the said premises.
Therefore, question of prejudice for nondisclosure of the status of married son, his wife
and their son in respect of the accommodation need not be disclosed in the plaint.
Nondisclosure of such fact by the appellant cannot be treated as suppression of
material facts.In Chandra Bhan vs. Ram Dayal reported in (2004) 10 SCC 150, the
Hon'ble Supreme Court held that requirement of suit shop room by the landlord for his
son to start the general merchant business cannot be held to be a mala fide. The plea of
the tenant that the son of the plaintiff/landlord is doing business in Delhi and the suit

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premises at Alwar would be of no use for him was held untenable.

The Hon'ble Supreme Court further held that old aged landlord wanted his son to settle
in Alwar so that the son could look after both the business and home is a bona fide
requirement and on this score, the tenant is liable to be evicted.

It is not in dispute that the respondent carry on business of manufacturing and sale of
gold ornaments as their family business.

The original plaintiff, since deceased used to run the same business in partnership with
his eldest son. He prayed for eviction of the tenant from the suit shop room for starting
a business for his son of same nature. Such requirement of the landlord must be held to
be genuine and bona fide.

The decision of the Hon'ble Supreme Court in Gulraj Singh Grawal vs. Harbans Singh
reported in AIR 1993 SC 1574 may be relied on in this regard.

Both the son and daughter-in-law of the appellant are medical practitioners. The
appellant and her husband are senior citizens. They want their son, daughter-in-law and
grand-son to stay with them in the suit house as medical practitioners, requirement of
two rooms to be used as professional chambers of the son and daughter-in-law was
made out in the plaint.

The pleading was duly established by evidence adduced by the husband of the
appellant. At the relevant point of time when trial of the suit was taken up, the grand-
son of the appellant was six years of age. Now he is about 19 years of age.

Therefore, a separate room for his stay and study is genuinely required in the suit
house. From local inspection and one kitchen in the first floor one room.

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 QUESTION OF LAW

Raising some substantial questions of law, the plaintiff/appellant has preferred the
instant appeal being aggrieved by and dissatisfied with the judgment and decree passed
on 31st May 2013 passed by the learned 5th Judge, City Civil Court at Calcutta in Title
Appeal No.1 of 2010.

The said appeal was admitted for hearing by the Division Bench of this Court vide
order dated 4th September, 2014. The Division Bench while admitting the appeal
formulated the following substantial questions of law:

 Whether the learned Courts below committed substantial error of law in holding
that the plaintiff did not reasonably require the demised premises.

 Whether the leaned Appellate Court erred in law in holding that there was no
default in making payment of rent.

It is pertinent to mention at the outset that the defendants/respondents were served

notices of the appeal and a Coordinate Bench of this Court vide order dated 18th
December, 2017 held that notice of the appeal was duly served upon the respondents.

However the respondents have preferred to remain unrepresented in the instant appeal.
Therefore, the appeal is heard ex-parte.

Coming to the question as to whether both the courts below substantially erred in law
in holding that the plaintiff did not reasonably require the demise premises, I like to
state at the outset that in order to establish the claim for eviction of a tenant on the
ground of reasonable requirement, the landlord must prove the following requirements:

 The landlord reasonably requires the premises for his own occupation as well as
for the persons for whose benefit the premise is held.

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  The landlord has no other alternative suitable accommodation within the same
municipal corporation or in any other area within 10 km. from such premises
where the West Bengal Premises Tenancy Act, 1997 extends.

 The landlord is the owner of the suit premises.

Since determination of a question as to whether plaintiff reasonably requires the

demised premises or not is, in my humble view, a question of fact.

I am inclined to reformulate the substantial question of law in the following words

taking aid of Section 100(5) of the Code of Civil Procedure:

Whether the learned Courts below committed substantial error of law

by ignoring material evidence adduced by the witnesses on behalf of the

appellant to arrive at a decision against the appellant that she did not

reasonably required the demised premises.

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 CONCLUSION

Both the son and daughter-in-law of the appellant are medical practitioners. The
appellant and her husband are senior citizens. They want their son, daughter-in-law and
grand-son to stay with them in the suit house as medical practitioners, requirement of
two rooms to be used as professional chambers of the son and daughter-in-law was
made out in the plaint. The pleading was duly established by evidence adduced by the
husband of the appellant. At the relevant point of time when trial of the suit was taken
up, the grand-son of the appellant was six years of age. Now he is about 19 years of age.
Therefore, a separate room for his stay and study is genuinely required in the suit house.
From local inspection and one kitchen in the first floor one room. Both the courts below
failed to consider the evidence on record in support of the claim of the appellant for
eviction of the respondents from the suit premises on the ground of reasonable
requirement. Non consideration of material evidence renders the findings of both the
courts below perverse and this court sitting on appeal under Section 100 of the Code of
Civil Procedure can very well pass necessary order allowing the appeal holding, inter
alia, that the respondents/tenants are liable to be evicted from the suit premises on the
ground of reasonable requirement.

As a result the instant second appeal is allowed, however without cost.The judgment
and decree of dismissal of the suit passed by the learned 1st Appellate Court is hereby
set aside.The respondents are directed to quit, vacate and deliver peaceful possession
of the suit premises within 60 days from the date of this judgment, failing which the
appellant is at liberty to put the decree in execution.

The appellant is also entitled to a decree for mesne profit, the amount of which will be
decided by the executing court in a proceeding under Order 20 Rule 12 of the Code of
Civil Procedure.In Hero Vinoth vs. Seshammal, reported in (2006) 5 SCC 545, the
Hon'ble Supreme Court summarized the principles relating to Section 100 of the Code

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of Civil Procedure in the following manner:

 An inference of fact from the recitals or contents of a document is a question of fact.

But the legal effect of the terms of a document is a question of law. Construction of a
document involving the application of any principle of law is also a question of law.
Therefore, when there is misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a question of law.

 The High Court should be satisfied that the case involves a substantial question of law,
and not a mere question of law. A question of law having a material bearing on the
decision of the case (that is, a question, answer to which affects the rights of parties to
the suit) will be a substantial question of law, if it is not covered by any specific
provisions of law or settled legal principle emerging from binding precedents, and,
involves a debatable legal issue. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either on account of express
provisions of law or binding precedents, but the court below has decided the matter,
either ignoring or acting contrary to such legal principle. In the second type of cases,
the substantial question of law arises not because the law is still debatable, but because
the decision rendered on a material question, violates the settled position of law.

 The general rule is that High Court will not interfere with concurrent findings of the
Courts below. But it is not an absolute rule. Some of the well-recognized exceptions
are where

 The courts below have ignored material evidence or acted on no evidence;

 The courts have drawn wrong inferences from proved facts by applying the law
erroneously; or

 The courts have wrongly cast the burden of proof. When we refer to 'decision based on
no evidence', it not only refers to cases where there is a total dearth of evidence, but
also refers to any case, where the evidence, taken as a whole, is not reasonably capable
of supporting the finding.

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