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High Court Of Calcutta
Sudhindra Mohan Guha
BANKA BEHARI DUTT - Appellant
Versus
GOUR MOHAN DUTTA - Respondent
SA 221 Of 1980
Decided On : 03/13/1981
LANDLORD AND TENANT - EJECTMENT - REASONABLE REQUIREMENT - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13 (1) (FF) - INTERPRETATION - REASONABLE REQUIREMENT OF LANDLORD - PROOF - BONA FIDE REQUIREMENT - MEANING - REASONABLENESS OF REQUIREMENT - EVIDENCE - NON-EXAMINATION OF LANDLORD - EFFECT - ISSUE OF ALTERNATIVE ACCOMMODATION - FRAMING OF ISSUE - NECESSITY - TRIAL WITHOUT ISSUE - VALIDITY - PARTIAL EVICTION - DUTY OF COURT TO CONSIDER - SECTION 13 (4) - INTERPRETATION - STATUTORY DUTY OF COURT - PLEA IN WRITTEN STATEMENT - NECESSITY - EVIDENCE ON RECORD - REQUIREMENT.
Fact of the Case:
The tenant-defendant appealed against the judgment and decree of ejectment passed by the lower courts on the grounds of default in payment of rent and reasonable requirement for the purpose of starting business in rice by the landlord's unemployed sons.
Finding of the Court:
The court held that the landlord was not required to prove bona fide requirement under the West Bengal Premises Tenancy Act, 1956, as the word 'bona fide' was omitted from the Act. The court also held that the non-examination of the landlord was not fatal to the suit as the reasonableness of the requirement could be proved by other legal evidence. The court further held that the trial was not vitiated for non-framing of an issue on the landlord's possession of alternative accommodation as the parties proceeded to trial with full knowledge of the rival contentions and led evidence in support of their respective cases. However, the court found that the lower courts failed to consider whether the landlord's requirement could be met by partial eviction and remanded the suit back to the trial court for a finding on this issue.
Issues: 1. Whether the landlord was required to prove bona fide requirement under the West Bengal Premises Tenancy Act, 1956? 2. Whether the non-examination of the landlord was fatal to the suit? 3. Whether the trial was vitiated for non-framing of an issue on the landlord's possession of alternative accommodation? 4. Whether the lower courts erred in not considering whether the landlord's requirement could be met by partial eviction?
Ratio Decidendi: 1. The court interpreted Section 13 (1) (ff) of the West Bengal Premises Tenancy Act, 1956 and held that the landlord was not required to prove bona fide requirement as the word 'bona fide' was omitted from the Act. The court reasoned that the word 'bona fide' connotes a state of mind of the landlord which may be required to be proved by the landlord himself, whereas 'reasonable requirement' may be proved by trustworthy evidence, and as such non-examination of the landlord would not be fatal. 2. The court held that the non-examination of the landlord was not fatal to the suit as the reasonableness of the requirement could be proved by other legal evidence. The court reasoned that the landlord's intention or mind has no part to play in determining the reasonableness of the requirement. 3. The court held that the trial was not vitiated for non-framing of an issue on the landlord's possession of alternative accommodation as the parties proceeded to trial with full knowledge of the rival contentions and led evidence in support of their respective cases. The court relied on the Supreme Court's decision in Kameshwaramma v. Subba Rao, where it was held that the absence of an issue was not fatal to the case if the parties went to trial fully knowing the rival case and led all the evidence in support of their contentions. 4. The court interpreted Section 13 (4) of the West Bengal Premises Tenancy Act, 1956 and held that the court has a statutory duty to consider whether the landlord's requirement could be met by partial eviction, irrespective of a specific plea in the written statement. However, the court held that there must be evidence or materials on record to indicate that a part of the premises would satisfy the landlord's requirement.
Final Decision: The appeal was allowed, the decree for ejectment was set aside, and the suit was remanded back to the trial court for a limited purpose, namely, to find whether the requirement of the plaintiff-landlord could be met by evicting the tenant defendant from one of the rooms.
( 1 ) THE tenant-defendant has come up in appeal against the judgment and decree of Sri M. Roy, Subordinate Judge, Purulia, affirming the judgment and decree of ejectment passed by the Munsif, Purulia.
( 2 ) THE respondent commenced a suit for ejectment against the appellant on determination of tenancy, on the grounds of default in payment of rent and reasonable requirement for the purpose of starting business in rice by his two unemployed sons. The appellant held the tenancy consisting of two rooms at a monthly rental of Rs. 45/- according to Bengali calendar month.
( 3 ) THE learned Munsif found that the tenancy had been determined by a valid notice to quit and the plaintiff reasonably required the premises in suit for his own use. Such findings were affirmed in appeal by the learned Subordinate Judge.
( 4 ) MR. S. C. Das Gupta, the learned Advocate for the appellant, contends that the Respondent's case as to starting of business by his unemployed sons is not consistent. The divergent cases were made out in the notice of ejectment, plaint and evidence adduced during the trial. The intention of the landlord as to which of the son or sons intended to start business in rice was not at all clear. In this case the plaintiff-landlord withheld himself from the witness box, and examined one of his sons, (P. W. 1) whose evidence could not be the substitute for the legal evidence of the landlord himself. Thus, according to Mr. Das Gupta there was no legal evidence for proving his requirement for the suit premises. He makes a reference to the decision in the case of Nanalal Gover-dhandas and Co. v. Smt. Samratbai Lila-chand Shah.
( 5 ) MR. Chandranath Mukherji, the learned Advocate for the Respondent argues that the decision of the Bombay High Court has least application to the facts and circumstances of the present suit which is governed by the provisions of West Bengal Premises Tenancy Act, 1956. The provisions of this Act are quite distinct from the provision of Section 13 of the Bombay Rent Act. Under the Bombay Act a landlord to recover possession on the ground of landlord's requirement must prove that the premises are reasonably and bona fide required by the landlord, whereas in West Bengal Premises Tenancy Act of 1956 the word "bona fide" has been omitted. It is to be seen whether the landlord's requirement is reasonable, Section 13 (1) (g) of the Bombay Act lays down that the premises must be reasonably and bona fide required by the landlord. Mr. Mookherjee submits that the bona fide requirement is a state of mind of the landlord which may be required to be proved by the landlord himself. Reasonable requirement, as in West Bengal Act may be proved by the trustworthy evidence, and as such non-examination of the landlord would not be fatal.
( 6 ) ACCORDING to the Concise Oxford Dictionary (5th Edition) the meaning of "bona fide" is "genuinely" and bona fides -- 'honest intention' -- The meaning of reasonable is "endowed with reason".
( 7 ) ACCORDING to Stroud's Judicial Dictionary, 4th Edition -- "bona fide is the equivalent of the phrase "honestly". "the correct province of this phrase is therefore to qualify things or actions that have relation to the mind or motive of the individual. A fact completely within physical apprehension can neither be bona or mala fide -- a mentai fact may be either" and "reasonableness" belongs to the know- ledge of the law, and therefore to be decided by Justices".
( 8 ) THUS in order to prove reasonableness the landlord is to show genuine present need. The words "reasonably required" connotes something more than mere desire although at the same time something much less than absolute necessity will do. "reasonableness" of requirement must be shown by evidence. The mind or intention of the landlord has no part to play therein. As the bona fides need not be proved, non-examination of the landlord would not be fatal to the present suit. Under Section 13 (1) (ff) of the
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