Case: Dr. Saroj Kumar Das Vs. Arjun Prasad Jogani

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. 9. Before these facts were introduced by amendment it was clearly stated that the appellant wanted to start his practice 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. 10. It could not be disputed that if the medical practitioner 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. 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 pleadings were amended. This statement is no t 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. 11. Both the learned counsel emphasised the date of the judgment of the Lower Appellate Court and the date of acquisition of the flat as it is apparent that the judgment of the Lower Appellate Court was de livered on 29th September, 1978 and the possession of the flat was given on 5th October, 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 contended that all others got the possession of the flat in 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 beheld that flat in South Calcutta on 13th floor could be said to be a reasonably suitable accommodation for the requirement of the appellant landlord and in the context of these facts and circumstances not much could be ma de 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. 12. 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 circumstances of the case the decree for eviction shall not be executed against the respondent upto 31.3.88 on respondent filing a n 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. 13.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 availability 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 "t he 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 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 additional 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 genuinethese facts were introduced by amendment it was clearly stated that the appellant wanted to start his practice 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 ofthe learned counsel emphasised the date of the judgment of the Lower Appellate Court and the date of acquisition of the flat as it is apparent that the judgment of the Lower Appellate Court was de livered on 29th September, 1978 and the possession of the flat was given on 5th October, 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 contended that all others got the possession of the flat in 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 beheld that flat in South Calcutta on 13th floor could be said to be a reasonably suitable accommodation for the requirement of the appellant landlord and in the context of these facts and circumstances not much could be ma de 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 reasonablyJudge 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 circumstances of the case the decree for eviction shall not be executed against the respondent upto 31.3.88 on respondent filing a n 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.