MAHANANDA DAS KARMAKAR Vs. BISWANATH DEY

JUDGEMENT

(1.) This appeal is by the defendant against whom a decree was passed for eviction from the suit premises in an action brought by the plaintiffs, his landlords. In the first appeal taken by the defendant, he was not successful and the first appellate court affirmed the decision of the trial court. In short, the plaintiffs' case before the learned Munsif was that they were running a shop known as "Ghatal Cloth Stores" in the premises let out by the trust estate of Srinibash Sureka. Their landlord served a notice upon them for eviction. The plaintiffs who are the owners of the suit premises wanted to raise two-storied building in place of the existing two rooms which they own so that they could start the cloth business there and in that case the business in the premises of the trust estate would be shifted. The plaintiffs got a plan sanctioned by the municipality and they have also obtained permits for cement for such construction. The definite case of the plaintiffs is that they want to make alterations and also build the second storey on the existing premises for their own occupation and for carrying on business there for their own interest. The further ground of eviction was that the defendant was a defaulter. The contesting defendant is the defendant No. 1 and there was another defendant described as pro forma. The contesting defendant is, however, admitted to be the tenant under the plaintiffs. The defence case was that the defendant was not a defaulter as alleged and that there was no requirement by the plaintiffs either for the suit premises or for any construction thereon. There was of course a challenge as to the validity of the notice to quit. The learned Munsif after hearing the parties on trial held that the case as to default in payment of rent was not proved but he was satisfied that the plaintiffs reasonably required the suit premises for building and construction of the first storey and also for their own occupation in connection with their cloth business. An appeal was taken against that decsion before the District Judge and the court which heard the appeal found no merit in the appeal and concurred with the learned Munsif as to his findings regarding the requirement by the plaintiffs. It was also held that the notice was legal and sufficient. Against that decision an appeal was taken to this Court. The learned Advocate appearing on behalf of the defendant-appellant submitted that due to the West Bengal Act 34 of 1969 there had been amendments in respect of Section 13 (1) (f) and instead of that Clause (f), Clauses (f) and (ff) were brought into existence. According to the amendment it was necessary for the court to determine whether the additions, alterations or building could be carried without the premises being vacant and further that whether the landlords had in their possession any reasonable suitable accommodation. The prayer was that the case might be sent back on remand for taking additional evidence on those points for coming to a correct and relevant decision. Accepting that prayer this Court set aside the judgment of the first appellate court and sent back the case to the first appellate court for determination as to the plaintiffs' requiring the suit premises reasonably for their own occupation and also for building, additions or alterations of the suit premises by taking additional evidence as to whether such building or alterations could be carried out without the premises being vacated and whether the plaintiffs had any reasonable suitable accommodation elsewhere. After the said remand, the first appellate court took additional evidence of the parties and after hearing the parties and on consideration of the evidence and circumstances it was held that the plaintiffs did require reasonably the room in suit for alteration and for construction of upper storey and also for the reasonable requirement of the plaintiffs. It was held that there was no other reasonable suitable accommodation at the disposal of the plaintiffs and that the constructions sought to be made by the plaintiffs could not be carried out without the premises being vacated. Against that decision the instant appeal has been preferred by the defendant No. 1.

(2.) Mr. Bhunia, the learned Advocate for the appellant, has taken several points in support of the appeal and Mr. Mitter on behalf of the respondents has opposed to justify the decisions of the courts below. The first point taken by Mr. Bhunia is that the appeal is not maintainable because after the amendment by the Act 34 of 1969 a fresh notice ought to have been given stating that no construction could be carried out without the premises being vacated and that the landlords, that is to say, the plaintiffs had no reasonable suitable accommodation but to fall upon the suit premises for the business in question. I am afraid this contention is unacceptable. The notice to quit and the notice for the threat of suit is already there in the original notice served upon the defendant. The amendment only required the courts to consider the question whether for alterations and building purposes the tenant should vacate the premises and whether for the purpose of determination of the reasonable requirement of the plaintiffs, did satisfy the court that they had no other suitable accommodation. There can be no question of issuing fresh notice. It has been submitted by Mr. Bhunia in this connection that the plaintiffs ought to have stated in the notice to quit that they had received a notice to quit from their landlords and that in the absence of such indication in the notice served upon the defendant the suit should have been dismissed. This submission is again unacceptable. It has been held by the majority decision in the case of Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar decided by the Special Bench that there is no necessity to indicate the grounds of eviction in a notice contemplated under Section 13 (6) of the West Bengal Premises Tenancy Act. Of course in this case the grounds were stated but the plaintiffs did not indicate the nature of evidence as to be produced at the time of trial, that is to say, that they had already received a notice from their landlords to quit the room in which they had been carrying on business. The first point, therefore, in my view has got no substance

(3.) The second point urged by Mr. Bhunia is that after the amendment in 1969 already referred, to the plaintiffs ought to have amended their plaint stating that they required the suit premises for their own use and occupation as they had no other reasonable suitable accommodation and that the additions and construction on the suit premises could not be done without the suit room being vacated. It should be noted in this connection that on the prayer of the learned Advocate appearing on behalf of the defendant-appellant in the previous second appeal the matter was sent back on remand to the first appellate court for taking additional evidence from the parties on the point whether the constructions could be made without the premises being vacated and whether plaintiffs had any other reasonable suitable accommodation as indicated in the amended Clauses (f) and (ff) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act of 1956. The parties well knew what evidence was to be adduced by the parties and what decision should be arrived at by the first trial court. The points for decisions were well known to the parties. Besides the knowledge of the parties, in my view, in a case like this there could be no question of amendment of the plaint or inserting the allegations about the absence of suitable accommodation of the plaintiffs or that the constructions could not be made without the premises being vacated. Moreover, at no point of time earlier, any such plea was taken either in the previous second appeal or before the first appellate court after remand. This second point, therefore, is overruled.