Flora Elias Nahoum And Ors. vs Idrish Ali Laskar

2. In order to appreciate the issues involved in this appeal, it is necessary to set out the facts in detail herein-below.

4. The appellants (plaintiffs) are the owners/landlords of one shop (room) bearing premises No.1, Hartford Lane, Calcutta (hereinafter referred to as “the suit shop”), which was originally owned by Late Nahoum Elias and Miss Resmah Nahoum. The present appellants are the successors-in-interest of the suit shop. They had let out the suit shop to one - Alfajuddin Laskar on a monthly rent of Rs.40/-. In the suit shop, 2 Alfajuddin Laskar used to do the business of sale of eggs under the name “24, Parganas Egg Stores”.

5. Alfajuddin Laskar expired in 1976. The respondent being his son became the tenant of the appellants on same terms and conditions. The respondent, however, closed his father's business of selling of eggs and started his tailoring business under the name “New India Tailors” in the suit shop.

6. In 1978, the appellants filed an Eviction Suit against the respondent under the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as “the Act”. The eviction was claimed on four grounds, viz., default in payment of monthly rent, bona fide need, sub-letting and lastly, making of unauthorized construction in the suit shop by the respondent. 3

7. The respondent filed the written statement and denied all the four grounds. Parties adduced their evidence. The Trial Court, by order dated 30.01.1984, partly decreed the suit. It was held that so far as the grounds relating to default of rent and bona fide need are concerned, both are not made out whereas the other two grounds, namely, sub-letting and making of unauthorized construction in the suit shop, both stood made out against the respondent.

8. In this view of matter, the appellants’ suit was decreed in part against the respondent and the decree for eviction on the ground of sub-letting and unauthorized construction made by the respondent in the suit shop was passed. The respondent was granted six months’ time to vacate the suit shop and handover its vacant possession to the appellants.

9. Being aggrieved by the said order, the respondent filed appeal before the High Court at Calcutta. The appellants, however, did not file any cross appeal or cross-objection against that part of the order by which two grounds, viz., default in payment of rent and bona fide need were held not made out. The judgment of the Trial Court thus became final to that extent.

12. The High Court, by impugned judgment, allowed the respondent’s appeal and dismissed the appellants’ eviction suit. The High Court held that no ground of either sub-letting or an unauthorized construction was made out, hence, the suit was liable to be dismissed in its entirety. It was accordingly, dismissed.

18. As mentioned above, the Trial Court held that the appellants were able to make out two grounds for respondent's eviction, namely, sub-letting and 7 unauthorized construction made by him in the suit shop. The High Court, accordingly, reversed the findings on these two grounds and dismissed the suit.

48. In our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynal Mullick’s presence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.

49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case of sub-letting against the respondent.

50. We cannot thus concur with the reasoning and the conclusion arrived at by the High Court and instead prefer to agree with the conclusion of the Trial Court insofar as it relates to the ground of sub-letting. In view of this, it is not necessary to examine the other ground relating to making of unauthorized construction by the respondent in the suit shop.

51. In the result, the appeal succeeds and is allowed. The impugned judgment is set aside and that of the Trial Court is restored.

52. The respondent is, however, granted three months’ time to vacate the suit shop, subject to the respondent filing in this Court a usual undertaking that he will deposit the entire arrears of rent up to the date as per the agreed rate within one month and will also deposit the mesne profits for a period of three months up to the date of vacation in 20 advance at the agreed rate and would vacate the suit shop on or before 30.04.2018.

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