ADHIR KUMAR DAS Vs. JUTHIKA SEN

JUDGEMENT

(1.) This second appeal has been preferred by the defendant/ appellant against the judgment and decree dated 19-2-1985 passed by the Ld. Assistant District Judge, Murshidabad in Title Appeal No.10 /83 thereby affirming the judgment and decree dated 30-9-1982 passed by the learned Munsif, Second Court Berhampore, District Murshidabad in O.S. No. 258 / 66. As it appears from the record the suit has a chequered career. Initially, the suit brought by the plaintiff respondent against the tenant defendant appellant was decreed in the trial Court on the grounds of nuisance, reasonable requirement and default by the judgment dated 10-12-1968. Against the said judgment and decree the First Appeal was preferred by the defendant appellant being T.A. 34/69 which was dismissed by the First Appellate Court as per judgment dated 24-6-1972. The Ld. Subordinate Judge held that the ground of nuisance or annoyance was not established. But the findings of the trial Court that plaintiff respondent reasonably required the suit premises for her own use and occupation and that the defendant appellant was a defaulter were confirmed and the trial Court's decree was upheld. Against the judgment and decree passed in the said Title Appeal No. 34/69. Second Appeal was preferred by the defendant appellant before this High Court and the said Appeal being S.A. 411/ 73 was heard and disposed of by B.N. Mitra, J. on 12-1-1981. The appeal was allowed. The judgment and decree appealed against were set aside and the suit was remitted to the trial court for disposal according to law on the specified directions given therein which I shall refer to in this judgment at appropriate stage. The suit was again decreed by the trial Court as per judgment dated 30-9-1982. The Ld. Munsif held that the defendant was a defaulter in payment of rent as he failed to prove when the M.O. for the rent for Sept. 1965 was sent and on which day the same was refused by the plaintiff and also on the ground that the plaintiff required the whole suit premises for her personal use and occupation. Again there was First Appeal being Title Appeal No. 10/83 at the instance of the defendant appellant which was dismissed by the Ld. Assistant District Judge by the impugned judgment and decree dated 19-2-1985 whereby the First Appellate Court affirmed the findings of the trial Court on the ground of default holding that the defendant had not made any valid tender of rent for the month of Sept. 1965. The finding of the Ld. Munsif as to the reasonable requirement of the suit premises for the plaintiff's own use and occupation was not concurred with The First Appellate Court held that the plaintiff could easily use the room measuring 8 ft x 10 ft on the ground floor as her drawing room. Against the finding of the Ld. Assistant District Judge deciding the issue of the plaintiff's reasonable requirements of the suit premises for her own use and occupation as a drawing room against her a cross objection has been filed on behalf of the plaintiff respondent which has been heard together along with this appeal. I shall take up the cross-objection while deciding the point of reasonable requirement at appropriate stage.

(2.) In this second appeal the only ground of objection taken on behalf of the defendant appellant is that the Ld. First Appellate Court made a serious error in law in holding that the defendant appellant failed to make any valid tender of rent for the month of Sept. 1965 before depositing the same with the Rent Controller in Case No. 51/65 under Section 21 of the West Bengal Premises Tenancy Act. It is also urged in the memo of appeal that the Ld. First Appellate Court white concurring with the finding of the Trial Court absolutely misconstrued the postal money order receipt No. 134 and came to a baseless finding that the receipt related to some time in June 1965. It is asserted in the memo of appeal that the First Appellate Court should have held that the rent for Sept. 1965 was deposited with the Rent Controller after the same was tendered by money order and refused by the plaintiff landlord. It has been also urged in the memo of appeal that the Ld. First Appellate Court erred in law by holding that for want of valid tender of rent for the month of Sept. 1965 all the subsequent deposits of rent with the Rent Controller were invalid and the defendant was a defaulter within the meaning of the relevant provisions of the West Bengal Premises Tenancy Act. It is also urged in the memo of appeal that the validity of the deposits with the Rent Controller was not challenged in the plaint or in the evidence before the Courts below and that no particulars of default were disclosed in the plaint.

(3.) Mr. Sudhis Dasgupta with Shri A.K. Sahoo and Shri N. Karak has appeared in this appeal for the defendant appellants while Shri N.N. Bajpayee with Shri Subrata Chatteraj has appeared for the plaintiff respondent. The facts of the case would appear from the impugned judgment of the First Appellate Court which I do not think necessary to repeat here. It is worth mentioning at this stage that the judgment passed by this Court in second Appeal No. 411/73 has been reported in AIR 1981 Cal 334 (Adhir Kumar Das v. Smt. Judhika Sen). In the S.A. 411 /73 it was urged before this Court that the Court was to take notice of subsequent fact to do complete justice between the parties. It was urged that after the death of the plaintiff's husband during the pendency of the suit one of the rooms fell vacant in the ground floor which was let out by the plaintiff to G.B. Pharmacy. In the original suit the plaintiff's case was that she required the suit premises where the defendant appellant was running a press for using the same as her drawing room. The question before this Court in S.A. 411/73 was whether the room which was let out in the G.B. Pharmacy during the pendency of the suit could be used as the drawing room of the plaintiff. It was also urged that in the plaint there was no assertion that the plaintiff was not in possession of any reasonable suitable accommodation elsewhere within the meaning of Section 13(1)(ff) the West Bengal Premises Tenancy Act. As the suit was filed in the year 1966 and the amended provision of Section 13(1)(ff) of the Act came into force thereafter this Court in the second appeal thought that the plaintiff should be given a chance to amend the plaint suitably. It was also urged before this Court in course of hearing of the said S.A. 411/73 that the rent for the month of Sept. 1965 was sent by money order to the plaintiff within that month which was refused on 1-10-1965. It was further urged that the defendant filed the postal acknowledgment receipt to show refusal by the landlord in the office of the Rent Controller along with an affidavit for depositing the rent of Sept. 1965 regarding the premises in question. It was also the plea that the defendant subsequently took back those documents from the Rent Controller for filing the same in the present suit but subsequently all the papers so taken away were misled and could not be traced and as such this could not be filed in the trial Court. It was urged in the said Second Appeal before this Court that the money order coupon No. 134 issued to him in postal department in Sept. 1965 has since been recovered and was in the custody of the defendant and that an opportunity should be given to the defendant to adduce additional evidence by admitting the said receipt. This Court held in the aforesaid second appeal as follows: -