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

The appellant-landlord filed a suit for recovery of possession of 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 relevant for the purposes of thisthe 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 w ith West Bengal Premises Tenancy Act,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 t o 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 forappears that during the pendency of this litigation 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 appellant 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 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 application 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.

Reasoning:
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.