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PETITIONER: DR. SAROJ KUMAR DAS

       Vs.

RESPONDENT: ARJUN PRASAD JOGANI

DATE OF JUDGMENT01/09/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1987 AIR 2131            1987 SCR  (3)1164  1987 SCC  (4) 262        JT 1987 (3)   488  1987 SCALE  (2)495

ACT:     West       Bengal      Premises       Tenancy       Act, 1956---Landlord-tenant  dispute  under--Eviction  of  tenant sought on reasonable requirement of landlord for his person- al use and occupation in the absence of any other reasonably suitable accommodation.

HEADNOTE:     The appellant-landlord. a medical practitioner, filed  a suit  for  recovery  of possession of the  2nd  floor.  rear portion of premises, 248, C.I.T. Road, Calcutta, let out  to the  respondent-defendant, on the ground of  the  reasonable requirement of the landlord for his own occupation as he had no other reasonably suitable accommodation in the town.  The appellant  contended  that he had been  residing  in  Ghana, Africa, where he had been temporarily appointed as a  Physi- cian,  and he wanted to come back to India after  retirement and  settle down in medical practice in the  locality  where his house was situated.     The  trial  court  granted the decree  for  eviction  in accordance with the West Bengal Premises Tenancy Act,  1956. The  first  appellate  court--the Court  of  the  Additional District  Judge--maintained  the  decree in  favour  of  the appellant by its judgment dated September 29, 1978.     During  the pendency of this litigation,  the  appellant had entered into an agreement with some construction company for  a flat in South Calcutta, and got the flat in  October, 1978.  This flat was on the 13th floor in South Calcutta,  a posh locality.     The  respondent-tenant preferred a second appeal  before the  High Court against the judgment of the first  appellate court. ’During the pendency of this appeal, the  respondent- tenant  submitted  an application for consideration  of  the subsequent  events,  i.e. the acquisition of a flat  by  the landlord suggesting that the need of the  appellant-landlord had  been  satisfied,  etc. The High  Court  permitted  this application for amendment and permitted the parties to  lead additional  evidence,  and in  consequence,  the  appellant- landlord  also was examined once again. On consideration  of the evidence, the High Court came to the conclu-             1165

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sion  that  now as alternative  accommodation--The  flat  in South Calcutta--was available, and, therefore, it set  aside the  decree  of eviction. Aggrieved by the decision  of  the High  Court, the appellant-landlord appealed to  this  Court for relief by special leave. Allowing the appeal, the Court,     HELD: It is well-settled that the alternative accommoda- tion must be reasonably suitable and if it is not so,  then, the mere availability of the alternative accommodation  will not  be a ground to refuse a decree for eviction, if  other- wise, the courts are satisfied about the genuine requirement of  the landlord, and to this, counsel for both the  parties also  agreed,  but the main contention was  whether  on  the facts appearing in evidence in the case, the inference could be  drawn that the flat on the 13th floor in South  Calcutta was reasonably suitable to satisfy the need of the appellant landlord. Counsel for the appellant had contended inter alia that  for the appellant, who had lived and practised  (as  a doctor) in the suit premises in the C.I.T. Road, it was  not possible  at that stage in life to start practice  in  South Calcutta on the 13th floor. Counsel for the parties conceded that  from C.I.T. Road where the premises in  question  were situated,  the  place where the flat was situated  in  South Calcutta,  would be a distant place. As regards evidence  it was no doubt true that after these facts were pleaded in the statement of the appellant, the only statement in regard  to suitability  was "the flat is not suitable for my  purpose." Counsel for the respondent emphasised that the  above-quoted statement  was the only statement made by the  appellant  in the additional evidence. It was no doubt true that this  was the  only statement made by the appellant when he was  exam- ined  afresh after these facts were brought in the  pleading by  way of additional evidence, but it could not be  doubted that  whatever was in evidence earlier could not be  brushed aside  and it was also clear that on the basis  of  evidence recorded  earlier, the two courts of facts came to the  con- clusion  that  the appellant-plaintiff had  established  his genuine requirement. On the basis of the facts, the  genuine requirement of the appellant-plaintiff was held to have been proved and the High Court also had accepted this  concurrent finding  of fact. The only consideration which weighed  with the  High Court was the acquisition of the flat on the  13th floor in South Calcutta. [1170A-G]     It could not be disputed that if a medical  practitioner is  an old resident of a particular locality and  had  prac- tised  in that locality, it would not be easy for him  at  a stage  in life after retirement to start practice afresh  in some new area and that too on 13th floor in a modern 1166 flat.  There  was nothing in the evidence on  the  basis  of which  it could be said that the flat in South Calcutta  was reasonably suitable for the appellant. In the context of the facts  and circumstances of the case, it could not  be  held that  the flat in South Calcutta on the 13th floor could  be said  to  be  a reasonably suitable  accommodation  for  the requirement of the appellant-landlord. [1170H; 1171A-C]     The High Court was not justified in the second appeal to interfere  with the finding of fact unless there were  facts established to hold that alternative accommodation  acquired after the decree of eviction in favour of the appellant  was reasonably suitable. The High Court omitted to consider  the positive evidence and a positive statement, not  challenged, that this fiat (in South Calcutta) was not suitable for  the purpose of the appellant-landlord. [1172B-C]     Judgment  of  the High Court was set  aside.  Decree  of

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eviction passed by the two courts below was maintained.  The court  directed  in the circumstances of the case  that  the decree  for eviction would not be executed against  the  re- spondent  upto 31.3.88 on the respondent’s filing an  under- taking in the usual form and also paying the rents and mesne profits  upto  date within four weeks, and that if  the  re- spondent failed to deliver possession on or before  31.3.88, the  appellant would be entitled to execute the  decree  for eviction. [1172D-E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 8295  of 1983.     From  the  Judgment and Order dated 29.7.  1982  of  the Calcutta High Court in Appellate Decree No. 385 of 1979. D.N. Mukherjee and N.R. Choudhary for the Appellant.     Dr. Shankar Ghosh, P.R. Seetharaman and M.T. George  for the Respondent. The Judgment of the Court was delivered by     OZA,  J.  This is an appeal preferred by  the  appellant after getting leave from this court against the judgment and decree passed by the High Court of Calcutta wherein the High Court  allowed the appeal of the respondent-tenant  and  set aside the decree for eviction granted by the courts below in favour of the appellant. The appellant-landlord filed a suit for recovery of  posses- sion of          1167 the 2nd floor rear portion of the premises 248, C.I.T. Road, Calcutta which was let out to the respondent defendant as  a monthly  tenant on the ground that the  landlord  reasonably required the suit premises for his own occupation and had no other  reasonably  suitable accommodation in the  town.  The decree  was also sought on other grounds which is not  rele- vant for the purposes of this appeal.     Both the courts the Trial Court and the First  Appellate Court found that the suit premises were reasonably  required for  the personal use and occupation of the  appellant-land- lord and his family which consisted of his wife one son  one daughter and therefore the decree was granted in  accordance with West Bengal Premises Tenancy Act, 1956.     What was urged by the appellant plaintiff in support  of genuine  requirement was that he is a  Medical  practitioner and  was appointed as a Physician in Ghana (Africa in  1964) where he has been residing temporarily. In Ghana after  some time  his  family could not stay and his wife  and  children have come back and are residing in Calcutta. His service  in Ghana was terminable by giving a notice of 3 months and  the plaintiff landlord desires to come back to India and  settle down in medical practice in this locality where the house is situated.  It was also alleged in the plaint that  he  could not  come back as the accommodation was not  available,  and that  after  taking retirement from Ghana they  will  settle down  in Calcutta in this house in dispute. The  requirement of  the family also was alleged on the ground that  the  son and  the daughter of the appellant have also grown and  they also  need  rooms for their use. It was  also  alleged  that apart  from the residential portion he also needs  one  room for his medical practice.     The trial court and the first Appellate Court  accepting this  contention of the plaintiff appellant  granted  decree for eviction.     It  appears that during the pendency of this  litigation

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the  present  appellant also had entered into  an  agreement with some construction company for a flat in South  Calcutta and  ultimately  in October 1978 he got possession  of  that flat. The First Appellate Court i.e. the Court of Additional District Judge maintained the decree in favour of the appel- lant  by its judgment dated 29th September 1978 and  against this  judgment  the  respondent tenant  preferred  a  second appeal  before the High Court. During the pendency  of  this appeal in the High Court the respondent tenant submitted  an application for consideration of subsequent events i.e.  the acquisition of the flat in South 1168 Calcutta suggesting that the need of the appellant  landlord has  been  satisfied and therefore the  decree  of  eviction should be set aside. The High Court permitted this  applica- tion for amendment and permitted parties to lead  additional evidence and in consequence the appellant landlord also  was examined  once again and it is not disputed that apart  from his statement which was recorded earlier additional evidence was recorded and it is on this evidence that the High  Court came to the conclusion that as now alternative accommodation i.e. a flat in South Calcutta which was acquired in 1978 available  the  decree of eviction was set aside and  it  is against  this  judgment of the High Court that  the  present appeal has been preferred.     Learned  counsel appearing for the  appellant  contended that  while  in service in Ghana since  1975  the  appellant wanted to come back but could not because the premises  were not available and therefore the suit was filed. During  this period out of some savings from the earnings that the appel- lant  made in Ghana, he booked a flat and ultimately a  flat was  practically ready in 1978. It was contended that  after the  judgment of the power Appellate Court where the  decree was  confirmed the appellant felt secured that he  will  now get  the premises in suit where he wanted to settle down  in practice  and  where  in fact in part of  the  premises  his family  was staying and as the appellant had  no  sufficient funds  he let out this flat in South Calcutta and it is  the tenant who invested some money and got it completed. Accord- ing to learned counsel the alternative accommodation  should be reasonably suitable and available and it is only then  it could be said that as the alternative accommodation which is reasonably  suitable is available that the decree for  evic- tion could be refused when the two courts the court of facts have  found it in favour of the appellant that  he  required the premises in question for his bona fide use.     Learned counsel contended that admittedly the flat which was allotted was a flat on the 13th floor in South  Calcutta which  is  a  posh  locality. For the  appellant  who  is  a M.B.B.S.  and who bad been living and practising  in  C.I.T. Road  in the suit premises for him at this stage in life  it was not possible to start practice in South Calcutta on 13th floor. It was also contended that the wife .of the appellant is  also working as a teacher in one of the schools  in  the locality and it would not be convenient and possible for her to  live  in South Calcutta and come to this area  for  dis- charge of her duties. According to learned counsel  although the  flat  was acquired but it was not at all  suitable  and therefore  the  High Court was not right on  this  basis  to interfere with          1169 the  concurrent findings of facts arrived at by  the  courts below. Learned counsel by reference to certain decisions  of this  court contended that mere fact that the  landlord  had purchased or acquired an accommodation is not sufficient  to

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negative  the genuine requirements but it has further to  be found  that the premises so acquired are reasonably  conven- ient  and in this regard it was contended that  the  learned Judge  of the High Court omitted to consider  these  circum- stances. It was also contended that the learned Judge  omit- ted  to consider the positive evidence and  drove  inference from  the  fact that the flat was acquired on the  basis  of agreement that it is being acquired for residential purposes and  further  averment made to indicate that  the  appellant landlord  intended to start some laboratory in the  fiat  in South Calcutta.     Learned counsel for the respondent contended that  after the additional facts came to the knowledge of the respondent tenant  it was pleaded an additional evidence produced.  The respondent produced evidence that in fact all other purchas- ers of the flats got possession of the flats in 1977 whereas the present appellant got it in October 1978 when the  judg- ment in lower appellate court was pronounced on 29th Septem- ber  1978. It was contended that the present  appellant  de- layed taking of possession just to wait till the decree  for eviction  was  affirmed by the Appellate Court.  He  further contended  that there is no evidence to indicate  that  this alternative  accommodation acquired is not reasonably  suit- able. According to the learned counsel South Calcutta  where this  flat  is  situated is one of the  posh  localities  of Calcutta and after having acquired a flat almost of the same area  which is in possession of the respondent in  the  suit premises, the High Court was right in coming to the  conclu- sion  that the alternative accommodation satisfies the  need of the landlord appellant.     Learned counsel further contended that the fact that the appellant’s  wife is in service and for her it will  not  be convenient if they stay in South Calcutta and the fact  that for practice of the appellant it will not be convenient  are facts  which  have not been stated by  the  appellant.  When after  the  amendment fresh evidence was  recorded  and  the appellant  was given an opportunity and he in fact  examined himself  and gave additional evidence but only fact that  he stated  in the additional-evidence is that the flat  is  not suitable  for his purpose. It was therefore  contended  that the  High Court was ,right in coming to the conclusion  that the  need  of the appellant landlord is  satisfied.  Learned counsel  also  referred to some decisions  for  their  above stated preposition. 1170     So  far  as the law on the question is concerned  it  is well  settled  that the alternative  accommodation  must  be reasonably suitable and if it is not so then more availabil- ity  of  alternative accommodation will not be a  ground  to refuse  a  decree for eviction if otherwise the  courts  are satisfied about the genuine requirement of the landlord  and to  this  counsel for both the parties also agreed  but  the main contention was that on the facts appearing in  evidence in  this case whether the inference could be drawn that  the flat  on  the 13th floor in South  Calcutta  was  reasonably suitable  to satisfy the need of the appellant landlord.  As regards evidence it is no doubt true that after these  facts were  pleaded  in the statement of the  appellant  the  only statement in regard to suitability is that "the flat is  not suitable for my purpose". It is not disputed that this is  a flat on the 13th floor in South Calcutta and learned counsel for parties conceded that from C.I.T. Road where premises in question are situated this place where the flat is  situated in South Calcutta will be a distant place.     Although  learned counsel for the respondent  emphasised

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that  the above quoted statement is the only statement  made by  the  appellant in additional evidence. It is  true  that this is the only statement when he was examined afresh after these facts were brought in the pleading by way of addition- al  evidence. But it could not be doubted that whatever  was in  evidence  earlier could not be brushed aside and  it  is also clear that on the basis of evidence which was  recorded earlier  the 2 courts of facts came to the  conclusion  that plaintiff has established his genuine requirement.     Before  these facts were introduced by amendment it  was clearly stated that the appellant wanted to start his  prac- tice  after taking retirement from his service in Ghana.  It was  also stated that he intended to start private  practice as a medical practitioner in Calcutta. It is also clear that before  going to Ghana the appellant was living in the  said premises  and was practising. It had also come  in  evidence that  his wife was also serving in some nearby  institution. On this basis his genuine requirement was held to have  been proved and the learned Judge of the High Court also accepted this  concurrent  finding of fact.  The  only  consideration which  weighed  with the High Court was the  acquisition  of this flat on the 13th floor in South Calcutta.     It could not be disputed that if the medical practition- er  is  an  old resident of a particular  locality  and  had practised in that locality it will not be easy for him at  a stage  in life after retirement to start afresh practice  in some new area and that too on 13th floor in a modern flat.         1171 What  has weighed with the learned Judge of the  High  Court was the statement made by the appellant that he intended  to start  a  laboratory after retirement in the flat  which  he acquired and the other fact which weighed was the  agreement which  stated  that  the flat was  required  for  residence. Apparently  not  much  could be drawn from  these  facts  as starting  a  laboratory admittedly is  much  different  from starting  private practice as the medical  practitioner  and signing an agreement which talks of residence is nothing but a mere formality if he at all intended to acquire a flat.     It  is clear that there is nothing else in the  evidence on  the  basis of which it could be said that this  flat  is reasonably  suitable.  Learned counsel  for  the  respondent contended  that the appellant said nothing else  except  the statement that this flat is not suitable for his purpose but it  is  very  significant that this statement  made  by  the appellant when he was examined additionally after the plead- ings  were amended. This statement is not challenged by  way of  cross-examination at all and it clearly states that  for the  purpose for which the appellant needs the premises  and he sought eviction this flat is not at all suitable for that purpose  which also is apparent from the situation  and  the circumstances discussed above.     Both  the  learned counsel emphasised the  date  of  the judgment of the Lower Appellate Court and the date of acqui- sition  of the flat as it is apparent that the  judgment  of the  Lower Appellate Court was delivered on 29th  September, 1978  and the possession of the flat was given on 5th  Octo- ber,  1978.  On the one hand the counsel for  the  appellant contended  that  the  Appellate Court  having  affirmed  the decree  of eviction the appellant knew that now there is  no problem  and this additional flat which he acquired  out  of the savings of his service in Ghana he could utilise to have some earning which may help the family at this stage in life and  therefore he let it out so that he may  earn  Something out  of it whereas learned counsel for the  respondent  con- tended  that  all others got the possession of the  flat  in

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1977  but this appellant waited till he secured a decree  of eviction affirmed by the Appellate Court and it is only then that  he  took possession of the flat so that  a  reasonable explanation  is possible for having let it out  because  the decree  for eviction was already passed.  The  circumstances discussed  above and the suitability and the requirement  of the appellant the age and nature of practice possible for  a retired  doctor with only an MBBS degree establish that  the premises  in  question are suitable and so far  as  this  is concerned  there  is no dispute but in the  context  of  the facts and circumstances discussed above it could not be 1172 held that flat in South Calcutta on 13th floor could be said to  be a reasonably suitable accommodation for the  require- ment  of the appellant landlord and in the context of  these facts and circumstances not much could be made out from  the two dates i.e. the judgment of the Lower Appellate Court and the date on which the appellant got possession of the flat.     It is therefore clear that the learned Judge of the High Court  was not justified in second appeal under Sec. 100  to interfere  with the finding of fact unless there were  facts established  to  hold that  this  alternative  accommodation acquired  after  the  decree of eviction in  favour  of  the appellant was reasonably suitable.     Learned Judge of the High Court only drew inference from the fact that the appellant wanted to start a laboratory and the fact that he signed the agreement for acquiring the fiat which was meant for residence and in drawing inferences from these  two facts, the learned Judge omitted to consider  the positive  evidence and a positive statement  not  challenged that  this  flat  was not suitable for the  purpose  of  the appellant  landlord. The judgment of the High Court can  not be maintained. The appeal is therefore allowed. The judgment of  the High Court is set aside and the decree  of  eviction passed by the two courts below is maintained. In the circum- stances  of  the case the decree for eviction shall  not  be executed  against the respondent upto 31.3.88 on  respondent filing  an  undertaking in the usual form  and  also  paying rents  and  mesns profits upto date within  four  weeks.  If respondent fails to deliver possession on or before  31.3.88 the  appellant shall be entitled to execute the  decree  for eviction.  In the circumstances of the case no order  as  to costs. S.L.                                                  Appeal allowed. 1173