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2020 Supreme(Cal) 240
IN THE HIGH COURT OF CALCUTTA
Bibek Chaudhuri, J.
Bimala Tiwari And Others - Appellants
Versus
Rizia Begum (since Deceased) - Respondent
First Miscellaneous Appeal No. 266 of 2012
Decided On : 14-02-2020
Dibyajyoti Raha, Advocate, Sourav Kumar Mukherjee, Advocate, Kaushik Chowdhury, Advocate
The main legal point established in the judgment is that the court must adhere to the statutory requirements when deciding issues of subletting and reasonable requirement under the West Bengal Premises Tenancy Act, 1997.
Headnote:
Subletting - Eviction Suit - West Bengal Premises Tenancy Act, 1997 - Section 6(4), Section 6(1)(d) - The court discussed the issue of subletting and reasonable requirement under the West Bengal Premises Tenancy Act, 1997. The court found that the learned Judge in First Appellate Court erred in law by remanding the suit for trial based on an issue of subletting when there was no pleading against the defendant regarding subletting. The court also held that the finding of the trial Judge on the issue of reasonable requirement was not in line with the statutory requirements.
Fact of the Case:
The plaintiffs filed a suit for eviction of the defendant No.1, alleging non-payment of rent and reasonable requirement of the suit property. The trial court dismissed the suit, but the First Appellate Court set aside the judgment and remanded the suit for trial to decide the issue of subletting, despite no pleading against the defendant regarding subletting. The court framed substantial questions of law and found that the trial Judge's finding on reasonable requirement was not in line with the statutory requirements.
Finding of the Court:
The court found that the learned Judge in First Appellate Court erred in law by remanding the suit for trial based on an issue of subletting when there was no pleading against the defendant regarding subletting. The court also held that the finding of the trial Judge on the issue of reasonable requirement was not in line with the statutory requirements.
Issues: The issues included the validity of the eviction notice, subletting of the premises, and the reasonable requirement of the plaintiffs.
Ratio Decidendi: The court held that the framing of an issue of subletting without any pleading against the defendant was a gross error in law. Additionally, the court found that the trial Judge's finding on reasonable requirement did not align with the statutory requirements.
Final Decision: The appeal was allowed, and the judgment and order of remand passed by the First Appellate Court were set aside. The appeal was sent back on remand to adjudicate the issues of reasonable requirement and service of notice under the West Bengal Premises Tenancy Act, without being influenced by the observations made in the judgment.
JUDGMENT
Bibek Chaudhuri, J. - This is an appeal against the judgment and order of remand passed in Title Appeal No.6 of 2010 dated 10th November, 2010 by the learned Additional District Judge, Rampurhat, Birbhum. By passing the impugned judgment, the learned Judge in First Appellate Court set aside the judgment and decree of dismissal of Title Suit No.219 of 2005 passed by the learned Civil Judge (Junior Division), 1st Court, Rampurhat, Birbhum. The learned Judge remanded the suit back to the trial court with a direction to decide an issue as to whether the defendant had sublet the suit shop room in favour of defendant No.2 or not.
2. Before dealing with the respective cases of the parties, I am inclined to record at the outset that on perusal of the judgments passed by both the Courts below I find that the judgment and decree passed by the learned trial court as well as the judgment and order of remand passed by the First Appellate Court suffer from gross perversity, non consideration of the principles of statute and lack of fundamentals of legal principles.
3. At the time of hearing argument, learned advocate for the appellants draws my attention to the order dated 6th February, 2012 passed by the Division Bench of this Court admitting the appeal for hearing. However, the Division Bench of this Court has not framed any substantial question of law. It is now well settled in view of the provision contained in Order 43 Rule 1(u) of the Code of Civil Procedure that the first miscellaneous appeal is required to be heard on substantial questions of law. Therefore, before taking up hearing of the instant matter this Court has framed the following substantial questions of law invoking the principle of Section 100(5) of the Code of Civil Procedure.:-
(i) Whether the learned Appellate Court substantially erred in law in remanding the suit for trial after formulating an issue of subletting when there is no pleading whatsoever against the defendant No.1 that she had sublet or parted with possession of the suit shop room in favour of the defendant No.2?
(ii) Whether the learned Judge in First Appellate Court substantially erred in law in upholding the finding of the trial Judge on the issue of reasonable requirement?
4. The appellants as plaintiffs filed Title Suit No.219 of 2005 praying for eviction of the defendant No.1 with consequential reliefs.
5. It was alleged in the plaint that one Rabiul Islam, husband of the defendant No.1 was the original tenant in respect of the suit shop room at a monthly rental of Rs.85/- payable according to English calendar. After the death of said Rabiul Islam, his wife /defendant No.1 became tenant in respect of the suit property. The tenancy of the defendant No.1 is governed under the West Bengal Premises Tenancy Act, 1997. The plaintiffs/appellants became the owner of the suit property by virtue of a deed of gift executed in their favour by one Krishna Singh. After transfer of the suit property in favour of the plaintiffs/appellants, tenancy of the defendant No.1 was duly attorned in favour of the present plaintiffs. It is alleged that the defendant No.1 was a habitual defaulter in payment of rent. Moreover, the plaintiffs/appellants reasonably required the suit shop room for their own use and occupation and they have no other alternative suitable reasonable accommodation elsewhere. The suit was preceded by an ejectment notice under Section 6(4) of the W.B.P.T. Act 1997 since the defendant No.1 failed and neglected to vacate the suit shop room in compliance of such eviction notice, the plaintiffs instituted the suit.
6. The defendant No.1 contested the suit by filing written statement denying all material allegations made out by the plaintiffs against her.
7. It is pertinent to mention that the lower Court record shows that by an order dated 5th July, 2006, one Asraf Ali was impleaded as defendant No.2 in the plaint. However, no allegation was made against the said Asraf Ali.
8. It is however, pleaded
