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2002 Supreme(Cal) 577
HIGH COURT OF CALCUTTA
Malay Kumar Basu, J.
Paritosh Ghosh
Vs.
Ashim Kumar Gupta & Ors.
S. A. No. 286 of 1993
Decided on : August 29, 2002
Jiban Ratan Chatterjee, Tapas Kr. Banerjee, G. K. Goon for the appellant;
Gopal Ch. Ghosh, S. K. Pandey for the respondent.
1. A landlord is entitled to evict a tenant who has sublet the premises or violated the terms of the tenancy agreement or the provisions of Section 108 of the Transfer of Property Act. 2. A landlord is not entitled to claim eviction on the ground of reasonable requirement if they have acquired the property within three years of the tenant's taking possession, under Section 13(3)(A) of the West Bengal Premises Tenancy Act, 1956. 3. A trial court has the discretion to expunge the evidence of a witness who fails to appear for cross-examination.
Headnote:
SUB-LETTING - TENANCY AGREEMENT - SECTION 108 OF TRANSFER OF PROPERTY ACT - EVICTION - REASONABLE REQUIREMENT - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13(3)(A) AND 17(4) - INTERPRETATION - EVIDENCE ACT, 1872 - SECTION 114 - PRESUMPTION - LOCAL INSPECTION COMMISSIONER'S REPORT - ADMISSIBILITY - CROSS-EXAMINATION - EXPUNGING OF EVIDENCE - LEGALITY - SECOND APPEAL - SCOPE OF INTERFERENCE.
Fact of the Case:
1. Plaintiff Ashim Kr. Gupta and others filed a suit against the defendant Paritosh Ghosh for eviction from the disputed premises No. 25, Ekdalia Road, Calcutta-19 on the grounds of sub-letting, violation of tenancy agreement, and damage to the property. 2. The defendant contested the suit, denying the allegations and disputing the ownership of the plaintiffs. 3. The trial court found that the defendant had sublet the premises, violated the terms of the tenancy agreement, and damaged the property. It also found that the plaintiffs were the owners of the suit property but were not entitled to claim eviction on the ground of reasonable requirement due to the provisions of Section 13(3)(A) of the West Bengal Premises Tenancy Act, 1956. 4. The defendant appealed to the District Judge, who dismissed the appeal and affirmed the trial court's judgment. 5. The defendant filed a second appeal to the High Court.
Finding of the Court:
1. The High Court found that the trial court and the District Judge had correctly found that the defendant had sublet the premises and violated the terms of the tenancy agreement and the provisions of Section 108 of the Transfer of Property Act. 2. The High Court also found that the trial court had correctly held that the plaintiffs were not entitled to claim eviction on the ground of reasonable requirement due to the provisions of Section 13(3)(A) of the West Bengal Premises Tenancy Act, 1956. 3. The High Court dismissed the second appeal.
Issues: 1. Whether the defendant had sublet the premises and violated the terms of the tenancy agreement and the provisions of Section 108 of the Transfer of Property Act. 2. Whether the plaintiffs were entitled to claim eviction on the ground of reasonable requirement. 3. Whether the trial court had erred in expunging the evidence of the defendant's witness.
Ratio Decidendi: 1. The High Court held that the trial court and the District Judge had correctly found that the defendant had sublet the premises and violated the terms of the tenancy agreement and the provisions of Section 108 of the Transfer of Property Act. The High Court relied on the evidence on record, including the report of the local inspection commissioner, to conclude that the defendant had sublet the premises to a third party without the consent of the landlord and had caused damage to the property. 2. The High Court also held that the trial court had correctly held that the plaintiffs were not entitled to claim eviction on the ground of reasonable requirement due to the provisions of Section 13(3)(A) of the West Bengal Premises Tenancy Act, 1956. The High Court noted that the plaintiffs had acquired the property within three years of the defendant's taking possession, and thus, they were not entitled to claim eviction on the ground of reasonable requirement under the Act. 3. The High Court rejected the defendant's argument that the trial court had erred in expunging the evidence of the defendant's witness. The High Court noted that the witness had not appeared for cross-examination and that the trial court had acted within its discretion in expunging the evidence.
Final Decision: The High Court dismissed the second appeal.
Malay Kumar Basu, J.: This second appeal is directed against the judgment and order dated 9th July, 1991 passed by the ld. 13th Additional District Judge, Alipur in Title Appeal No. 329/89 of this court. The said Title Appeal No. 329/89 was preferred by the tenant-defendant Sri Paritosh Ghosh against the judgment and order dated 31st May, 1989 passed by the ld. Munsif, 2nd Court, Alipur in Title Suit No. 201/83 of that court. The relevant facts are as follows:
2. The plaintiff Ashim Kr. Gupta and others filed the said title suit against the said defendant praying for a decree of eviction of the defendant-tenant from the disputed premises No. 25, Ekdalia Road, Calcutta-19 on the following grounds. The defendant who had been inducted as a monthly tenant in respect of the said premises at a rental of Rs. 550/- per month by Sm. Purnima Gupta, since deceased, the erstwhile owner of the house, violated the terms of the agreement by sub-letting his tenanted premises to the defendant No. 2 without obtaining any written consent from the landlord and he has been realising Rs. 3,500/- every month from that sub-tenant by way of rent. The defendant No.1 committed certain further unlawful acts which have rendered him liable for ejectment from the suit premises in view of the terms of the agreement. Thus he caused certain damages to the suit building in violation of the provisions of clauses (m), (o) & (p) of section 108 of the T. P. Act. That apart, he also defaulted in payment of rent to the plaintiffs. Moreover, the plaintiffs required the suit premises for their own use and occupation as they have got no other alternative suitable accommodation. Due to non-availability of accommodation in the suit house one of the plaintiffs cannot be given in marriage. Also, the accommodation in their existing residence cannot be made available to the married sister of the plaintiffs, when she wants to come to her father's house along with her husband and children. The plaintiff sent notice to quit upon the defendants dated 25th January, 1983 asking him to vacate the premises and deliver up the vacant possession of the same in favour of the plaintiffs by the last day of February, 1983, but even after receipt of that notice he has not vacated the suit premises. Hence the erstwhile landlady Mrs. Purnima Gupta filed the suit against the defendants praying for a decree of their eviction form the suit premises. Subsequently, during pendency of the suit, the said plaintiff, Mrs. Purnima Gupta, died and on her death the present plaintiff being her legal heirs were joined as plaintiffs in place of the deceased plaintiff. The defendant No. 1 appeared and filed a written statement in order to contest the suit. His case was one of denial of the allegations of the plaint. It is his case that he never caused any damage to the suit building, never constructed any structure, never altered the suit premises in any way and has never inducted any sub-tenant as alleged. He has also disputed the ownership of the plaintiffs in respect of the suit premises. Further, he does not admit due service of the notice to quit upon him. According to him the suit being on false grounds is liable to be dismissed with cost.
3. On the basis of the pleadings of the parties the trial court framed the following issues for consideration.
1. Is the suit maintainable?
2. Is the notice to quit legal, valid, sufficient and was it duly served?
3. Is the defendant a defaulter?
4. Has defendant No.1 sub-let the premises to defendant No.2 without the consent of the landlord ?
5. Is the defendant No.1 guilty of acts in contravention of provisions in clauses (m), (o) & (p) of section 108 of the T. P. Act?
6. Are the plaintiffs owners of the suit premises?
7. Do the plaintiffs reasonably require the suit premises for their own use and occupation ?
8. Do not the plaintiff have any other reasonable suitable accommodation elsewhere?
9. Are the plaintiffs entitled to the decree prayed for?
10. To what other rel
