2004 Supreme(Cal) 313

High Court Of Calcutta
Arun Kumar Mitra
SUSANTA KUMAR BANERJEE - Appellant
Versus
LAKSHMAN SHOW - Respondent
S. A.  236  Of  1991
Decided On : 04/30/2004

The appellate court's decision was perverse as it did not properly scrutinize the trial court's judgment, did not apply the proper test of law, and was based on surmise and conjecture.

Headnote:

LANDLORD TENANCY - RENT ARREARS - EVICTION - BONA FIDE REQUIREMENT - REASONABLE REQUIREMENT - OWNER DEFINED - PREMISES TENANCY ACT - APPLICABILITY: - Monthly tenant defaulted on rent from October 1976. - Landlord required the premises for own use and extension of business. - Landlord sent lawyer's notice to quit on 21.5.78, which was refused by the tenant. - Tenant claimed he was not a defaulter and deposited rent before the Rent Controller. - Trial court decreed eviction in favor of the landlord. - Appellate court reversed the trial court's decision. - Second appeal filed by the landlord.

Fact of the Case:

The plaintiffs, Susanta Kumar Banerjee and Sunil Kumar Banerjee, filed a suit for eviction, arrear of rent, and mesne profits against the defendant, a monthly tenant under the plaintiffs' father. The plaintiffs alleged that the defendant was a habitual defaulter in rent payment and had failed to pay rent from October 1976. The plaintiffs required the suit premises for their own use and occupation for the extension of their business. The tenancy of the defendant was determined by the plaintiffs by sending a lawyer's notice to quit on 21.5.78. The notice was sent to the defendant by registered post but was returned to the plaintiffs with a postal mark of "refused." The defendant did not vacate the suit premises after 1st July 1978 and remained, according to the plaintiffs, as a trespasser. The plaintiffs claimed mesne profits @ Re. 1/- per diem. The plaintiffs claimed Rs. 420/- from the defendant as arrear rent from October 1976 to June 1978. The defendant contested the suit by filing a Written Statement admitting himself to be a tenant under the father of the plaintiffs in respect of the suit premises. He denied that he was ever a defaulter. The defendant alleged that the plaintiffs collected rent for the month of October 1976 but did not grant a rent receipt on different grounds. Again, he refused to accept rent for the month of November 1978. The defendant also alleged that he sent the rent by M.O., which was refused by the plaintiff No. 1, the defendant then started depositing rent before the Rent Controller. The defendant deposited rent month by month before the Rent Controller till July 1978 and thereafter he used to deposit the rent in the Court below. The defendant filed a petition under Section 17 (2) and 17 (2a) (B) of the West Bengal Premises Tenancy Act for the determination of arrear and for installments regarding the payment of the arrears. He further challenged the legality and validity of the notice. The defendant alleged that the notice was not served upon him rightly. The defendant denied that the plaintiffs had a requirement of the suit premises for their own use and occupation. The defendant prayed for the dismissal of the suit with costs. The defendant categorically stated that the business of the plaintiff no. 1 had not been increased as alleged. He further alleged that the plaintiff No. 1 cannot be an absolute leaseholder in respect of the suit property.

Finding of the Court:

The appellate court below did not apply proper test of law in deciding the appeal on merit. The learned counsel for the appellant submitted that the appellate Court below acted on the basis of surmise and conjecture and did not consider the evidence on record. The learned appellate Court below also brought certain unnecessarily facts and acted on the basis of surmise and conjecture when the appellate Court below observed that the landlord/plaintiffs have filed the suit with mala fide intention. On consideration of the judgment and decree passed by the learned appellate Court below it clearly appears that the said judgment and decree is absolutely perverse.

Issues: 1. Whether the learned appellate Court made proper scrutiny of the judgment and decree passed by the learned trial Judge or the learned appellate court below allowed the appeal mechanically on surmise and conjecture? 2. Whether the plaintiffs can be termed as owners of the premises and whether landlord tenancy relation is there in between the plaintiffs and the defendant. 3. Whether the learned appellate Court below applied proper test of law in deciding the appeal? 4. Whether the judgment and decree passed by the appellate Court below is perverse or not.

Ratio Decidendi: 1. The appellate court did not properly scrutinize the judgment and decree of the trial court and allowed the appeal on surmise and conjecture. 2. The plaintiffs can be termed as owners of the premises, and there is a landlord-tenant relationship between the plaintiffs and the defendant. 3. The appellate court did not apply the proper test of law in deciding the appeal. 4. The judgment and decree of the appellate court are perverse.

Final Decision: The second appeal is allowed. The judgment and decree passed by the appellate Court below is set aside, and the judgment and decree passed by the learned trial Judge is affirmed.