DUKHHARAN MUKHERJI Vs. TARA SUNDARI DASSI

JUDGEMENT

(1.) THIS Rule arises on application under section 115 of the Code of Civil Procedure and is directed against order dated 30th august, 1977, passed by Shri K. N. Muikherji, Judge, 10th Bench, City Civil court, Calcutta, in Miscellaneous Case no. 253 of 1976 arising out of Ejectment Execution Case No. 242 of 1975. The Opposite Parties as landlords instituted Ejectment Suit No. 284 of 1964 before the 10th Bench, City Civil Court, calcutta against the petitioner for eviction from the premises in suit, that is, 3 rooms on the first floor and a kitchen on the ground floor of premises No. 61 A, madhu Roy Lane on the ground that they reasonably require the same for their own use and occupation. The learned Judge decreed the suit. Being aggrieved, the petitioner preferred an appeal being F. A. No. 581 of 1967 before this court. During the pendency of the appeal clause (f) of sub-section (1) of section 13 of the West Bengal Premises ' Tenancy Act was substituted by Classes (f) and (ff ). The said new Clause (ff) applied to the aforesaid appeal and it became necessary to determine whether or not the opposite parties were in possession of any seasonable suitable accommodation. Chittatosh mukherji, J, who heard the appeal, as pleased to frame two additional issues for a proper determination of the case and to send the case to the trial court keeping the appeal pending before his lordship. The two additional issues were to the following effect :- (1) Are the plaintiffs already in possession of any reasonably suitable accommodation, or not? 20 (2) Whether the requirement of the plaintiffs may be substantially satisfied by ejecting the defendant from a part only of the premises in terms of sub-section (4) of section 13 of the West Bengal Premises Tenancy Act The trial court was directed, to make findings on the above two issues after giving the parties opportunities to adduce further evidence. The trial court after taking additional evidence passed an order on 20th March, 1972 to the effect that the plaintiffs' requirement, being only of one bed room, may substantially be satisfied by evicting the defendant from one of the 3 bed rooms in his occupation on the first floor and the learned Judge held accordingly. The learned Judge after making his findings as above on the two issues sent his findings to this Court. Thereafter, the appeal wais again heard by chittatosh Mukherji, J, who, however, set aside the judgment and decree of the trial court and dismissed the suit being aggrieved, the opposite parties preferred Letters Patent Appeal No. 30 ob' 1974. S. K. Mukherji and M. N. Roy, JJ, allowed the Letters Patent appeal. Their Lordships agreed with the finding of the trial court that the requirement of plaintiffs 1, 2 and 3 can be satisfied from the existing accommodation, but the plaintiff No. 4 required only one room. Their Lordships also agreed with the finding of the trial court that in the circumstances the plaintiffs' requirement may substantially be satisfied by evicting the defendant from one of the 3 rooms. Even though their Lordships very clearly found so in their judgment, in the concluding portion it was stated that the judgment and decree of the appellate court are set aside and those of the 'learned trial court are restored. It may be mentioned that the trial court decreed (he suit in full, though their lordships in the Letters Patent Appeal found that if the opposite parties got one room their requirement will be satisfied and that can be done by partially evicting the petitioner, yet the effect of the concluding portion of the judgment is that the opposite parties got a full decree.

(2.) AFTER obtaining such a decree the opposite. parties started Execution case. The petitioner filed an application under Sec. 47 of the Code and hence, the Miscellaneous Case. In the objection under Sec. 47 of the Code it was stated. some subsequent events happened which clearly go to show that the plaintiff No. 4 is no more in requirement of any accommodation in the suit premises. It was also stated in the said application that the decree parsed by the High Court simply stated that the judgment and decree of the trial court were restored. The order of this court in Letters Patent Appeal required classification. In view of the findings of the learned Judges, the opposite parties cannot get a decree for recovery of possession of the entire premises. After the disposal of the Letters Patent appeal the petitioner filed an application in this Court for making a note of the subsequent events. The said application was ultimately taken up for hearing by R. Bhattacharyya and jana, JJ, who were pleased to allow the Petitioner to withdrew the said application and to file an application for review. Ultimately an application for review was filed. The said application was taken up for hearing by M. N. Roy, J, who dismissed the application as the same was barred by limitation. His Lordship however, did not enter into the merits of the application. The learned Judge, City civil Court, dismissed the application under Sec. 47 of the Code holding that this Court- restored the judgment and decree of the trial court which passed a full decree in favour of the opposite parties. An application for review was filed and the same Was dismissed. by this Court. That being so, the learned judge was of opinion that the execution of the decree cannot he effectively challenged by the judgment-debtor. Being aggrieved by the aforesaid order the petitioner has come up to this court.

(3.) MR. Sakti Nath Mukherji, learned Advocate appearing, on behalf of the petitioner, contends that the decree passed by the Letters Patent Bench is a nullity. In this connection, it is further submitted that the decree is not executable being contrary to the provisions of the West, Bengal Premises tenancy Act. Mr. Mukherji contends that section 13 (4) pf the West Bengal premises Tenancy Act provides that where the landlord requires the premises on any of ,the grounds mentioned, in clause (f) or clause (ff) of sub-section (1) and the court is of opinion that such requirement may be substantially satisfied by ejecting the tenant or the sub-tenant from a part only of the premises and allowing the tenant or the sub-tenant to continue in occupation of the rest, then, if the tenant or the subtenant agrees to such occupation, the court is to pass such decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant or the sub-tenant. Mr. Mukherji submits that section 13 (4) is really a proviso to section 13 (1) (f) and (ff)and the provisions of section 13 (4) are mandatory. Mr. Mukherji submits that the Letters Patent Bench in very clear terms agreed with the findings of the trial court that the plaintiff nos. 1, 2 and 3 did not require any portion of the suit premises and that their requirement could be substantially met by the existing accommodation. Their Lordships also agreed with the rending of the trial court that the plaintiff No. 4 required only one room of the suit premises. Their Lordships also agreed with the further finding of the trial court that plaintiff No. 4's requirement can be satisfied by evicting the defendant from one of the rooms of the suit premises. It may be mentioned that Chittatosh Mukherji, J. , did not agree with the finding of the trial court that plaintiff No. 4 required one room in the suit premises and dismissed the suit. The Letters Patent Bench was, therefore, correct in setting aside the judgment and decree of Chittatosh Mukherji, J. But, after setting aside the judgment and decree of Chittatosh mukherji, J. the Letters Patent Bench restored the judgment and decree of the trial court. Mr. Mukherji submits that the Letters Patent Bench omitted to note that the trial court passed a decree for eviction in respect of the entire suit premises. According to Mr. Mukherji the Letters Patent Bench never meant to pass a full decree in favour of the plaintiff. The Letters Patent Bench in very plain and clear words found that it was only plaintiff No. 4 who required one room in respect of the suit premises. Letters Patent Bench also agreed with the finding of the trial court that the requirement of plaintiff No. 4 can be satisfied by evicting the defendant from one of the rooms of the suit premises. In view of such finding it was incumbent on the Letters Patent Bench to pass a decree for partial eviction in respect of one of the rooms of the suit premises. But, that has not been done in this case. Instead, the decree of the trial court has been restored and as a result, the. plaintiffs have started execution of the said. decree. If this decree is allowed to be executed then the defendant will be evicted from the entire suit premises it may be mentioned that after the suit. was sent back, the trial court found that the plaintiffs required only one room and the Letters Patent Bench agreed with such finding. In suck circumstances, Mr. Mukherji submits that the decree passed by the Letters patent Bench being in violation of the provisions of section 13 (4) of the West bengal Premises Tenancy Act is a nullity and such a decree cannot be executed being contrary to the provisions of the Act. To fortify his argument, Mr. Mukherji cites before me several decisions.