Calcutta High Court (Appellete Side)
Austin Distributors (P) Ltd vs Sri Sri Iswar Ganesh Chandra Jiu & Ors on 20 April, 2026
2026:CHC-AS:614
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
SA 98 of 2011
With
IA No. CAN 3 of 2024, CAN 4 of 2024, CAN 6 of 2024
Austin Distributors (p) Ltd.
Vs.
Sri Sri Iswar Ganesh Chandra Jiu & Ors.
For the Appellant : Mr. Aniruddha Chatterjee, Sr. Adv.,
Mr. Debabrata Roy
Mr. Anil Choudhury,
Ms. N. Jain
For the Respondents : Mr. Surajit Nath Mitra, Sr. Adv.,
Mr. Partha Pratim Ray,
Mr. Sankarsan Sarkar,
Mr. Soumyadeeb Sinha,
Ms. Surnajana Chatterjee
Heard on : 05.01.2026
Judgment on : 20.04.2026
Dr. Ajoy Kumar Mukherjee , J.:
1. The respondents herein as plaintiffs instituted the Ejectment Case
no. 04 of 2004 for decree of eviction and recovery of possession from the
appellant herein, before learned Civil Judge (Junior Division) Sealdah. The
Appellant being a company was inducted as a tenant in respect of suit
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premises situated at 173 AJC Bose Road, Kolkata, at a monthly rental of
Rs. 790/-,payable according to the English calendar month under the
respondents herein by dint of a lease agreement dated 18.10.1947.
According to plaint case defendant was originally a lessee and after expiry
of the lease period he became the premises tenant under the plaintiff. The
suit property is actually a trust property by dint of an Arpan Nama
executed on 10.04.1950. The respondents herein served an ejectment
notice upon the appellant on 28.08.2002 for eviction and the appellant
herein replied the said notice of ejectment on 04.09.2002. Thereafter the
respondents herein filed the abovementioned ejectment suit no. 04 of 2004
on following grounds;
(a) The defendants/appellants have defaulted in payment of rent in
respect of suit premises since July, 1990.
(b) The plaintiffs reasonably required the suit premise for building and
re building purpose and /or to augment their income.
2. Prior to institution of present suit, the plaintiffs herein filed another
eviction suit on the ground of building/rebuilding against the same
defendant/tenant being T.S. No. 53 of 1967, which was decreed. The
defendant preferred Title Appeal being No. 991 of 1975 and the appeal was
allowed on the ground that the plaintiffs could not establish having
sufficient fund to make building/re building of the suit premises
3. In the instant suit the defendant/appellant contested the suit by
filing written statement thereby denying all materials allegations in the
plaint. The defendant in the written statement denied that they have
defaulted in payment of rent since 1990 and that plaintiffs have
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suppressed the fact that the said rent payable by the defendant was
directed to be paid to the credit of the earlier suit filed by the
plaintiff/landlord being aforesaid TS no. 53 of 1967, in the court of learned
9th Sub-Judge, Alipore. The defendant deposited the rent month by month
in compliance with the said order, before the court in TA 991 of 1975.
When the said Appeal was allowed, the defendant was directed to deposit
the rent month by month to the Nazir Khana of the court to the credit of
the said suit. Accordingly the defendant deposited the rent from the month
of February, 1967 to October, 1996, before the Court.
4. The defendant further stated in the written statement that the
plaintiff as Appellant filed an appeal before this High Court who directed
that 50% of the rent will be deposited towards arrear of municipal tax. In
due compliance of the order of this court, the defendant deposited monthly
rent from the year of 1996 to 2004 and municipal tax thereof. The
defendant paid the amount in excess to the monthly rent and that the
defendant is entitled to refund a sum of Rs. 7,61,271/-, which was paid
towards tax and therefore he is not a defaulter. The defendant in their
written statement had also denied plaintiffs requirement of suit premises
on the ground of building and re building.
5. In the aforesaid present suit defendant also filed an application
under section 7 (2) of the West Bengal Premises Tenancy Act, 1997 (in
short Act of 1997). Learned Trial Court was pleased to dispose of the said
application directing the defendant to pay the arrear rent for 188 months
with 10% interest amounting to Rs. 1,63,372/-. The said order was carried
up before this High Court through a revisional application and this High
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Court while disposed of the revisional application observed that the trial
court will modify the order to the extent that the amount of Rs. 85,000/- is
to be adjusted against the payment of RS. 7,00,000/- by way of municipal
taxes by the tenant and the tenant/petitioner shall not be considered to be
a defaulter in rent till march 2005.
6. Thereafter the instant suit was taken up for final hearing on
05.02.2009, when the trial court decreed the suit on contest in favour of
the respondents herein on the ground of default. However the ground of
building and re building was decided by the trial court against the
plaintiffs/respondents.
7. Being aggrieved by and dissatisfied with the judgment and decree
passed by learned Trial Court, in aforesaid Ejectment Suit no. 4 of 2004,
the appellant herein preferred an appeal before the first appellate Court
being TA no. 40 of 2009. Subsequently the respondents herein also filed a
cross appeal against he findings of the trial court relating to dismissal of
the eviction suit on the ground of building and re building.
8. Finally on 20.01.2011, said Title Appeal was taken up for
consideration and after hearing both the parties, learned First Appellate
Court by the impugned judgment dated 31.01.2011 had dismissed the
appeal on contest, affirming the decree passed by trial court on the ground
of default and at the same time allowed the cross appeal filed by the
respondents against the order of dismissal of the suit, on the ground of
building and re building. Being aggrieved by the aforesaid judgment
passed by the First Appellate Court the defendant/appellant herein have
preferred the instant second Appeal being SA 98 of 2011.
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9. A Division Bench of this Court while admitted the second Appeal has
framed the following three substantial questions of law by an order dated
29th April, 2011.
I. Whether the learned Judge in the courts below, substantially, erred
in law in passing the decree for eviction on the ground of default,
when the appellant has complied with all the requirements of Sub-
section (1) of Section 7 of the West Bengal premises Tenancy Act,
1997?
II. Whether the learned judges in the lower appellate court,
substantially, erred in law in granting the decree for eviction on the
ground of building and re-building, when it has been proved that the
owners had no means but they had decided to engage a promoter for
development of the property in suit for augmentation of their income
?
III. In the absence of any provisions in the decree for giving back
possession, after the building and re-building is complete within a
specified period of time, whether the decree passed by the learned
judge in the lower appellate court would be sustainable in law?
10. During pendency of the second appeal the appellant herein on
12.04.2012 filed a stay application and this High Court directed the
appellant to deposit current occupational charges at the rate of Rs.
4,00,000/- per month till disposal of the appeal. Both the appellant and
respondent herein challenged the said order dated 12.04.2012 before the
Supreme Court and both the special Leave Petition were taken up together
and the court by an order dated October, 15, 2012 modified the said order
dated 12.04.2012 and directed appellant herein to deposit Rs. 2,00,000/-
per month before the executing court and furnish a bank guarantee of Rs.
200,000/- per month before the Registrar General of the High Court.
11. Learned Counsel for the appellant claimed that the appellant is
depositing the said amount month by month. It is further submitted that
the appellant herein as plaintiff had instituted a suit against the
respondent herein for recovery of the aforesaid Municipal Tax amounting to
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Rs. 7,61,272/-, which the appellant herein has already paid to the
Municipality. Said suit being T.S. no. 7 of 2010 has already been decreed
ex parte against the defendant/land lord/respondent herein and thereby
passed a direction for recovery of money of Rs. 7,61,272/- from the
defendant/respondent herein along with interest.
12. Being aggrieved by the judgment of affirmation passed in connection
with the instant Ejectment suit for eviction on the ground of default,
learned Counsel for the appellant Mr. Chatterjee argued that while the
decree for eviction on the ground of default was passed, the courts below
completely ignored the fact that the appellant has complied with all the
requirements of subsection (1) of section 7 of the Act of 1997. The appellant
as defendant paid amount excess to the rent and the said tenant had
deposited the rent from February, 1967 to October, 1996. The plaintiffs
infact suppressed the fact that the said rent payable by the
defendant/tenant was directed to be paid to the credit of the earlier suit
being T.S. 53 of 1967 in the Court of 9th Sub Judge, Alipore and the
appellant duly complied the said order and the appeal preferred therefrom
has been dismissed. Therefore the defendant has duly deposited the rent
from the month of February, 1967 to October, 1996. Thereafter in due
compliance of the High Court’s order passed in Civil Revisional Application
the appellant herein deposited monthly rent from the year of 1996 to 2004
along with municipal tax and thereby the defendant has made excess
payment and they have also obtained ex parte decree in respect of the sum
of Rs. 7,61,271/- paid for an on account of the petitioner/land lord. The
defendant appellant never defaulted in payment of Rent.
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13. Mr. Chatterjee strenuously argued that once this High Court has
held that the appellants are not be considered as defaulter in payment of
rent till March 2005, in absence of any finding to the contrary the trial
court could not have come to a finding that the defendant/tenant was in
default. The courts below completely overlooked the fact that there was
decree for recovery of money in T.S. 7 of 2010, whereby and whereunder
the plaintiffs were directed to pay money to defendant in lieu of municipal
tax, which are paid by the tenant. Till March 2005, every payment liable to
be made by the appellant/tenant were paid off and the records of Courts
below show that since March 2005 the tenants have been making payment
regularly without any default.
14. Per contra learned counsel for the respondent Mr. Mitra argued that
the defendant/appellant infact continued to occupy the suit property under
its erstwhile owners even after expiry of its lease, upon payment of Rs.
790/- per month as monthly rent and in addition to the monthly rent, the
appellant was under an obligation to pay property tax payable to the
Kolkata Municipal Corporation in terms of the Tenancy Agreement and to
maintain regular payment of such dues as part of its obligations as tenant.
The appellant had paid rent upto June, 1990 but thereafter defaulted in
payment of Rent and statutory dues continued for years together despite
repeated oral and written demand from the respondents.
15. In the meantime demand notice for property tax were issued by KMC
in respect of the suit property and the corporation by its letter dated 12th
April, 2002 called upon the respondents to pay an outstanding amount of
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Rs. 4,86,838.74/- by April, 30,2002, failing which there would be
disconnection of services.
16. Mr. Mitra further argued that appellants made payment of the
property tax to KMC in respect of the suit property being aggregate amount
of Rs. 7,61,272/- from April, 20, 1998 to April, 30 2002. However appellant
filed aforesaid T.S. No. 86 of 2002/T.S. No. 7 of 2010, where they have
obtained ex-parte decree against the respondents. He further submits that
the appellant/defendant failed to deposit last paid rent within statutory
timeline before the controller. He further submits that during examination-
in-chief the defense witness no.1 admitted that there was non payment of
rent on and from 1996 since the disposal of TA 991 of 1975. It has been
further deposed that the appellants had paid Rs. 7,61,271/- towards
municipal tax and has also sought for its adjustment in TS no. 86 of 2002
filed by the Appellant against respondents.
17. Mr. Mitra further argued on behalf of the respondents that the Trial
Court while disposed of section 7(2) of the Act of 1997 was pleased to held
that the defendant is a defaulter in paying monthly rent since July 1990 for
a period of 188 months and directed the appellant herein to pay of arrears
of rent amounting to Rs. 1,63,372/- together with interest at the rate of
10% per annum, which was subsequently modified by this High Court in
CO no. 967 of 2006, wherein the Respondents herein agreed to have sum of
Rs. 85,000/- to be adjusted against total amount of property Tax allegedly
paid by the appellant to KMC being a Sum of Rs. 7,00,000/- and thereby
appellant would not be considered as defaulter in payment of rent till
March, 2005 and it was further held that the said order was passed
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without prejudice to the rights and interest of the parties, wherefrom it is
clear that said order was not final but tentative upon final adjudication of
the suit. Therefore, aforesaid order passed in CO 967 of 2006 passed by
this High Court was subject to fulfilment of the adjustment of the amount
and therefore the benefit under such orders are conditional upon
compliance of the same. Delay or failure to perform the obligation within
the specified period gives rise to the forfeiture of the benefit and
subsequent deposit or performance after the passing of the decree is not
permissible. It is clear from the facts and circumstances of the case that
even after adjustment of RS. 85,000/- with the consent of the respondents,
the appellant did not pay the remaining arrears of Rs. 78,372/- (1,63.372/-
– 85,000/- ) along with interest within time as directed by the Court and
therefore the appellant remained statutory defaulter under section 7(2) and
therefore liable to be evicted under section 6(1) (b). Both the courts below
after due consideration of the aforesaid facts and circumstances of the
case, have granted decree of eviction on the ground of default.
18. Mr. Mitra further argued that once the appellant chooses to sue for
refund of the alleged municipal payment and succeeded in obtaining an
exparte decree for Rs. 7,61,272/-, which has also been put in execution,
the appellant herein cannot treat any part thereof as adjustment towards
rent. The appellant itself gave a go by to the order dated July 5, 2006
passed in CO no. 967 of 2006 by this High Court, which was obtained with
the consent of the respondents regarding adjustment of Rs. 85,000/-and
furthermore the appellant did not make any attempt to deposit the
aforesaid Rs. 78,372/- at any point of time.
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Decision
Substantial Question No. 1:-
19. Before going to further details let me cut the long story short in
connection with factual background of the respondents allegation,
pertaining to default in payment of Rent. In the ejectment suit the
respondents as plaintiffs had claimed that the appellant herein is a
defaulter in payment of rent since July 1990. After entering appearance the
appellant herein filed application under section 7(2) of the Act of 1997
praying for determination of the arrears of the rent due and payable by
him. On 08.02.2006 the said petition was disposed of by the trial court
observing that the tenant/appellant is a defaulter in payment of monthly
rent since July 1990 and the arrears of rent for Rs. 188/- along with
interest at the rate of 10% amounting to Rs. 1,63,272/- which was
directed to be paid within 30 days. This High Court modified the said order
while disposing the CO 967 of 2006 on 05.07.2006 with the following
observation.
“..in the interest of early disposal of the suit and as instructed by his client,
the opposite parties agree to have the amount of Rs 85,000/- adjusted
against the total amount of Rs. 7,00000/- paid by the petitioner by way of
tax, without prejudice to its rights. The revisional application is thus
disposed of with the observations that the orders of the learned Civil Judge
(Junior Division), Sealdah passed in connection with the Civil Suit No. 4 of
2004 are , modified to the extent that the amount of Rs 85,000/- is to be
adjusted against the payment of RS. 700000/- paid by way of municipal
tax and since adjustment of rent against the payment of tax is being
allowed, the petitioner/tenant shall not be considered to be a defaulter in
payment of rent till March, 2005. This order is passed without prejudice to
the rights and interest of either of the parties…”
Learned Counsel for the defendant strenuously argued before the
trial court that in view of the observation made by the High Court the
appellant /defendant cannot be held to be defaulter till March, 2005 by
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any means. Learned Trial court while granted decree in favour of
plaintiff on the ground of default made following observation.
“upon careful perusal of the order of the Hon’ble High Court dated
5/7/06, it appears that the expression” without prejudice to the rights
and interests of either of the parties,” has dual connotations:- (a) rights
and interests of the parties with regard to the demand in respect of Rs.
7,61,272/- which has been claimed by the instant opposite party in T.S.
No. 86/2002, as demands of Corporation Taxes purportedly paid by it
unduly, under distress order, and warrant of attachment issued by the
KMC, and (b) rights of either parties respect of the entire demand of Rs.
1,63,372/- towards arrears of rent claimed by the opposite party in the
7(2) petition.
In terms of the Hon’ble Court’s order, it appears that
approximately 50% of the total arrears of rent determined under section
7(2), (i.e., Rs 85,000/-) was allowed to be adjusted against the sum
claimed to have been paid by the opposite party on behalf of the
petitioner, towards taxes due and payable to the KMC. Against such
adjustment, the opposite party is not to be deemed a defaulter for the
period from July 1990 to March 2005. The order passed by this court
under section 7(2) of the WBPT Act 1997 on 8/2/06, has been modified
to that extent only, and no further. Accordingly, for the period from April
2005 till date, it is to be ascertained whether the opposite party is a
defaulter in the following two aspects (i) payment of the balance amount
or arrear rent determined under section 7(2), i.e. Rs 63,520/- (Rs.
1,63,372/- minus Rs 85,000/-), and (ii) payment of the current rent
from month to month.
Exhibit-D series comprises of only current rent deposit challans,
for the period from April 2005 to March 2007, at the rate of Rs 790/- per
month. Throughout the entire case record, and the documents exhibited,
I do not find any document filed by the O.P. to show that the balance
amount of Rs 63,520/- towards arrears of rent, has ever been paid by
the opposite party.
In his cross-examination, DW-1 has admitted that the opposite
party was directed to pay the arrear rent to the tune of Rs. 1,63,372/-
by the instant court. Rs. 85,000/- was directed to be adjusted by the
Hon’ble High Court. He has admitted that he did not deposit the rest of
the amount after adjustment. He has further admitted that Hon’ble High
Court had not exempted him from paying the rest of the amount, being
the arrear rent since July 1990.
If that be so, then there can be no hesitation to hold that the
opposite party has committed default in payment of the arrear rent as
determined under section 7(2) and as modified by Hon’ble Court in its
order. Upon strenuous analysis of the order passed by the Hon’ble
High Court I do not find anything therein which either (i) alters the
quantum of arrear rent determined by this court while disposing off the
petition. u/s 7(2) of W.B.P.T. Act 1997 vide its order dated 8/2/06, or
(ii) exempts the O.P. from paying the balance sum, remaining after
deduction of the amount of Rs. 85,000/- from the total sum of Rs.
1,63,372/- determined as arrears of rent under section 7(2) of the Act.
In other words, there has been no valid payment of the arrear
rent determined u/s 7(2), as adjusted vide Hon’ble High Court’s order
dated 5/7/06. Under the provisions of section 7(4) of the West Bengal
Premises Tenancy Act 1997, it the tenant makes deposit or payment as
required by sub section (1) or sub section (2), no order for delivery of
possession of the premises to the landlord on the ground of default in
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payment of rent by the tenant shall be made by the civil judge, but he
may allow such cost as he may deem fit to the landlord.
Since such payment has not been made by the O.P., it is not
entitled to the protection u/s 7(4) of the West Bengal Premises Tenancy
Act 1997. In the order passed on the 7(2) petition, O.P. was adjudged a
defaulter for more than three months within a period of twelve months.
Hence, the ground of default stands established against the opposite
party, and the petitioners are entitled to get a decree/order on the
ground of default under clause (b) of section 6(1) of the Act. Thus, this
point is decided in favour of the petitioner.
20. When the matter was placed before the 1st Appellate Court he
affirmed the judgment of the trial court in respect of granting decree on the
ground of default with the following observation.
“Accordingly, the appellant/opposite party was under obligation to
pay the arrear rent for the said period amounting to Rs. 63,520/- at a
time in terms of order dated 08.02.2006 passed by the Ld. Trial Court
and modified by the Hon’ble Court in CO No. 967 of 2006 and current
rent month by month from March, 2006 to till delivery of judgment i.e.
10.06.2009 under Section 7(1) of the W.B.P.T. Act, 1997. Admittedly,
the appellant/opposite party has not deposited the arrear rent
amounting to Rs. 63,520/- at a time in court and as such it can be
said without any hesitation that the appellant/ opposite party has not
complied with the order passed by the Ld. Court below under Section
7(2) of the W.B.P.T. Act, 1997 and modified by the Hon’ble High Court
in CO No. 697 of 2006. It further appears that the appellant/opposite
party has deposited rent in the Ld. Trial Court by challans till March,
2007 but no rent was deposited in the Ld. Court below in terms of
Section 7(1) of the WBPT Act, 1997 from April, 2007 to June, 2009.
Accordingly, I am of the view that the court below considering
materials or record has come to right findings in a very comprehensive
manner with regard to point no. 2 and that the said findings having
been based on materials on record warrant no interference.”
21. Therefore it is apparent that during the pendency of the suit, the
appellant herein filed applications under section 7(1) and section 7(2) of
the Act of 1997, seeking permission to deposit alleged last paid rent
before the controller and for determination of the arrear amount of rent
to be deposited respectively. Learned Civil Judge by an order dated 8th
February, 2006 was pleased to held that the appellant is a defaulter in
paying monthly rent since July, 1990 i.e. for a period of 188 months and
directed the appellants to pay arrear rent of Rs.1,63,372/- together with
interest at the rate of 10% to the respondents within 30 days and also to
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pay current monthly rent within 15 days of each succeeding month. Said
order, when assailed before this High Court the respondents have agreed
to have adjusted a sum of Rs. 85,000/- against the total amount of
property Tax paid, by appellant to KMC and the appellant would not be
considered as a defaulter in payment of rent till March, 2005. The said
order was passed without prejudice to the right and interest of either of
the parties. It appears that even if it is taken for granted that Rs.
85,000/- was adjusted the appellants have nothing to show that he has
paid the rest amount of arrear rent of Rs. 78,372/- along with interest
within time. Thus the appellant remains statutory defaulter under
section 7(2) and is not entitled to get benefit of protection against
eviction under section 7(4) on the ground of default of rent and therefore
liable to be evicted under section 6(1) (b) of the Act of 1997.
22. It also needs to be mentioned that appellant already obtained
decree for recovery of sum of Rs. 7,61,272/- from the respondents as
refund of arrears of rates and taxes paid by him to KMC and said decree
has already been put into execution and the respondents herein have
already filed a petition on September, 2025 in the said execution case
regarding their intention to pay the decretal amount in full and final
satisfaction of the exparte decree on January, 30 , 2016. Therefore the
appellant itself gave a go by to the order passed by this High Court in CO
967 of 2006, regarding adjustment of Rs. 85,000/- also which
culminates the fact that the appellants herein as tenant neither
deposited the arrear of RS. 78,372/- (Rs. 163372/- –85,000/-) nor has
adjusted Rs. 85,000/- from the arrear rent and as such
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defendant/appellant has miserably failed to show compliance of section
7(2) of WBPT Act, in depositing the arrear rent as was directed by the
Trial Court read with the judgement passed by the High Court in CO no.
967 of 2006 and as such he is not entitled to get benefit of protection
against eviction under section 7(4) of the Act of 1997.
23. In Bijay Kumar Singh and Ors. Vs. Amit Kumar Chamariya and
ors. reported in (2019) 10 SCC 660, the Supreme Court specifically held
that non-payment on determination of the arrears of the rent, will entail
the eviction of the tenant, provided that the tenant takes steps as
contemplated under sub section (2) of section 7 of the Act and deposits the
arrear of rent on determination of the disputed amount. Para 21 of the
judgment reads as follows:-
21. Sub-section (3) provides for consequences of non-payment of rent i.e.
striking off the defence against the delivery of the possession and to proceed
with the hearing of the suit. Such provision is materially different from sub-
sections (2-A) and (2-B) which was being examined by this Court in B.P.
Khemka [B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick, (1987) 2 SCC
407] . Sub-sections (2-A) and (2-B) of Section 17 of the 1956 Act confer
unfettered power on the court to extend the period of deposit of rent, which
is circumscribed by the proviso to Section 7(2) and sub-section (3) of Section
7 of the Act. Therefore, the provisions of sub-section (2) are mandatory and
required to be scrupulously followed by the tenant, if the tenant has to avoid
the eviction on account of non-payment of arrears of rent under Section 6 of
the Act. There is an outer limit for extension of time to deposit of arrears of
rent in terms of the proviso to sub-section (2) of Section 7 of the Act. The
consequences flowing from non-deposit of rent are contemplated under sub-
section (3) of Section 7 of the Act. Therefore, if the tenant fails to deposit
admitted arrears of rent within one month of receipt of summons or within
one month of appearance without summons and also fails to make an
application for determination of the disputed amount of rate of rent and the
period of arrears and the subsequent non-payment on determining of the
arrears of rent, will entail the eviction of the tenant. Section 7 of the Act
provides for a complete mechanism for avoiding eviction on the ground of
arrears of rent, provided that the tenant takes steps as contemplated under
sub-section (2) of Section 7 of the Act and deposits the arrears of rent on
determination of the disputed amount. The deposit of rent along with an
application for determination of dispute is a precondition to avoid eviction on
the ground of non-payment of arrears of rent. In view thereof, tenant will not
be able to take recourse to Section 5 of the Limitation Act as it is not an
application alone which is required to be filed by the tenant but the tenant
has to deposit admitted arrears of rent as well. (emphasis added)
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24. It is true that the concurrent finding of fact that the tenant has not
deposited the arrear amount of rent in terms of 7(2) of the Act of 1997 is
based on question of fact and not question of law but still High Court can
interfere if it is found that finding of fact as stated above is recorded dehors
the pleading or is based on no evidence or misreading of material
documentary evidence, or is recorded against any provision of law or the
decision is one, which no judge acting judicially could reasonably have
reached such ground within the periphery of section 100 of CPC.
25. In the present case the trial court and first appellate court recorded a
concurrent finding of fact that appellant did not pay the arrear rent in
terms of the order passed by the Trial Court read with order of this court
passed in CO 967 of 2006, within the statutory period. It is not open to the
High Court to interfere with the finding of the facts which was based on
proper appreciation of evidence on record. The appellant herein is unable to
state that he had deposited the entire arrear amount of rent within the
statutory period as stated above. Such finding of fact on proper
appreciation of evidence could not have been interfered with by the High
Court within the scope of section 100 of CPC. Moreover default in payment
of rent, in true sense does not give rise to any substantial question of law.
It is entirely matter to be decided on the appreciation of the evidence. High
Court does not have any scope to re appreciate the evidence and come to
the conclusion that the appellant had deposited the arrear amount of rent,
decided and or adjusted within the statutory period.
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26. In Gurdev Kaur and Ors. Vs. Kaki and Ors. reported in AIR 2006
SC 1975 the Apex Court has clearly laid down the legislative mandate of
section 100 CPC which may be reproduced below:-
71. The fact that, in a series of cases, this Court was compelled to interfere was
because the true legislative intendment and scope of Section 100 CPC have
neither been appreciated nor applied. A class of judges while administering law
honestly believe that, if they are satisfied that, in any second appeal brought
before them evidence has been grossly misappreciated either by the lower
appellate court or by both the courts below, it is their duty to interfere, because
they seem to feel that a decree following upon a gross misappreciation of
evidence involves injustice and it is the duty of the High Court to redress such
injustice. We would like to reiterate that the justice has to be administered in
accordance with law.
72. When Section 100 CPC is critically examined then, according to the
legislative mandate, the interference by the High Court is permissible only in
cases involving substantial questions of law.
73. The Judicial Committee of the Privy Council as early as in 1890 stated that
there is no jurisdiction to entertain a second appeal on the ground of an
erroneous finding of fact, however gross or inexcusable the error may seem to be,
and they added a note of warning that no court in India has power to add to, or
enlarge, the grounds specified in Section 100.
74. The High Court seriously erred in interfering with the findings of facts
arrived at by the trial court and affirmed by the first appellate court.
27. In Kondiba Dagadu Kadam Vs. Sabitribai Sopan Gujar
and Ors. reported in (1999) 3 SCC 722 supreme court has
reiterated that in a second appeal under section 100 CPC, the High
Court cannot substitute its own opinion for that of the first appellate
court, unless it finds that the conclusions drawn by the court below
was erroneous being;
I) Contrary to the mandatory provisions of the applicable
law or
II) Contrary to the law as pronounced by the supreme Court
or
III) based on inadmissible evidence or no evidence
28. It was further observed by the Court in the aforesaid decision that if
the first appellate court has exercised its discretion in a judicial manner,
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its decision cannot be recorded as suffering from an error either of law or of
procedure requiring interference in second appeal. It was further observed
that the trial court could have decided differently is not a question of law,
justifying interference in second appeal.
29. In the instant case the observation of both the courts below that
appellant failed to comply the statutory mandate of section 7 (2) of the Act
is based on evidence and document and both the courts below have given
satisfactory explanation in coming to the conclusion. It is not within the
domain of the High Court to investigate the grounds on which the findings
were arrived at by the last court of fact.
30. It is well settled that even in a case wherefrom a given set up
circumstances two inferences of fact are possible, the one drawn by the
lower appellate court will not be interfered by the High Court in second
appeal. The High Court is expected to interfere, if it is found that the
conclusion drawn by the courts below were erroneous being contrary to the
mandatory provisions of law applicable ( here Section 7(2) of the Act of
1997) or its settled position on the basis of judgment pronounced by the
Apex Court in Bijay Kumar Singh (Supra) or if it was shown that the
decision is based upon ignoring any material evidence that the
defendants/appellant have duly complied the statutory mandate, laid down
under sub-section (2) in depositing the arrear rent in time.
31. Mr. Chatterjee though argued in favour of remanding the case for
fresh evidence on the point of excess payment made by the appellant in
order to nullify the ground of default. But I do not find any substance in
such argument since the decision rendered by the court below on the
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material question did not violate any settled position of law or is liable to be
vitiated by perversity. It is nobody’s case that the evidence taken as a
whole does not reasonably support the finding of the court below that total
arrear amount of rent determined by the court while disposing section 7(2)
of the application, has been deposited or that the courts below have
interpreted the evidence on record in an absurd on capricious manner.
There is also nothing to show that the courts below have arrived at its
decision ignoring or acting contrary to any legal principle. Therefore, I do
not find that the decision rendered by the courts below in granting decree
of eviction against the appellant herein on the ground of default warrants
any interference by this court.
Substantial Question No. 3
32. Whether in absence of the provision in the decree for giving back
possession after the building and re building is complete within a specified
period of time is sustainable in law or not, cannot be a substantial question
of law, in view of the fact that it is no more res integra that in absence of
such direction by the Trial Court, it does not vitiate the judgment and the
High Court in second appeal can issue such direction. Failure on the part
of the court below to issue direction as provided in section 11(1) of the Act,
would not render the judgment or decree for eviction under section 6(1) ( c)
invalid and the appellate court after hearing the appeal can issue such
direction in view of the judgment passed by this High Court in Mahananda
Vs. Biswanath, reported in AIR 1976 Cal 185 wherein it was held as
follows:-
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“4. It has next been submitted by Mr. Bhunia that the judgment is vitiated as
there is no time stipulated in the plaint of the construction as required under
Section 18-A of the West Bengal Premises Tenancy Act. According to sub-section
(1) of Section 18-A of the Act when the court passes a decree for recovery of
premises on the ground mentioned in clause (f) of sub-section (1) of Section 13, it
shall specify the period within which building or rebuilding or the additions or
alterations to such premises shall be completed and may on the application of
the landlord extend such period from time to time for good and sufficient reason.
Of course in the present judgment we find no such direction. But the absence of
such direction does not vitiate the judgment when the second appeal is pending
because this Court sitting in second appeal can pass necessary direction under
Section 18-A of the Act. Of course Mr. Bhunia has conceded that this Court has
power to pass such directions.”
Substantial question no.2
33. If section 6 (c) of the West Bengal Premises Tenancy Act 1997 is
considered with clause (f) of Section 13(1) of the West Bengal Premises
Tenancy Act 1956, it appears that the word ‘reasonably’ has been omitted
in the present Act. However, the expression as used in 1956 Act “where the
premises is required by the landlord for the purpose of the building or re
building or for making thereto substantial addition or alteration and such
building or re building or addition or alteration cannot be carried out without
the premises being vacated”, still retained in the present Act. Therefore, the
said ground of ejectment in both the statute have laid the stress on the fact
that such building or re building cannot be carried out without the
premises being vacated.
34. This condition is important one, even though in the present Act the
expression “required” is only used instead of “reasonably required’.
Emphatically the word “require” means ” to be in need of”. So there must
be element of need in demanding vacant possession from the tenant for the
purpose of building or rebuilding. Therefore in order to get decree for
eviction under clause ( c) what is needed is the landlord’s honest intention
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and genuineness of his claim, which has to be satisfied from surrounding
circumstances. For determining whether the landlord requires the premises
for the purpose of building or re building and/or substantial addition or
alteration, the land lord still has to establish that his requirement in
respect of the suit premises is genuine and not fanciful. If this was not the
intention of the legislature, then they would not have retained the word
“required” in the present statute also.
35. In fact in absence of such interpretation the view expressed in the
judgment passed in Netaram Vs. Jiwan lal, reported in AIR 1963 SC
499, i.e. the purpose of the rent legislation which protects the tenant from
eviction, would be frustrated. The land lord still has to prove his
bonafideness if he requires the premises for building or re building or for
substantial addition or alteration. In the said judgment supreme Court
held that before a land lord can obtain a decree of ejectment on the ground
of his requirement of reconstruction of a house, he must satisfy about the
genuineness of his claim and this can only be established by looking at all
the surrounding circumstances namely conditions of the building, the
situation, the possibility of its being put to a more profitable use for
reconstruction, the means of the landlord and so on. It is also pointed out
in that decision that it is not enough that the land lord comes forward and
says that he entertains a particular intention, however strongly, said to be
entertained by him and that it is impossible therefore to held that the
investigation should be confined only to the existence of an intention in the
mind of the landlord to re-construct and that this intention must be
honestly held in relation to the surrounding circumstances. This principle
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has been reiterated subsequently in Pachmal Vs. Basthi reported in AIR
1971 SC 742. Therefore, it is clear that the aforesaid ground of eviction
required more than mere financial capacity or the question of sanction plan
for the building and re building. The plaintiff must establish his
“requirement” as genuine.
36. In the present case while dealt with the said issue the trial court held
as follows:-
“On a through analysis of the evidence adduced by Pw-1, I find that no
evidence has been brought on record by the petitioners to show as to what
expenditures are required to be incurred on behalf of the deities from year to
year, for holding its ceremonies, and other religious observations, and no
materials have been produced to show the present income of the deities, and
the source thereof.
In absence of these particular, this court cannot subjectively ascertain
whether the present income arising out of the properties belonging to the
deities, are insufficient for their maintenance, so as to justify the plea of
augmentation of income of the deities. It is to be remembered that the nature of
requirement of a deity, which is a juristic person, is dissimilar to that of a
natural person, as, in the case of a natural person, a mere motive for earning
more profit by putting the premises to a more profitable venture, may justify a
plea of building and rebuilding for augmentation of income, whereas, in the
case of requirement of a deity, there cannot be any existence of a “mere profit”
motive, and a case of requirement of augmentation of income may arise only
when the existing income of the deity becomes insufficient for the purpose of its
maintenance, including daily “Seva Puja”, periodical ceremonies, etc.
Although it has been expressly admitted by the petitioners that there are other
properties of the deities in and around Calcutta and particularly at Chinsurah,
where the deities themselves have their seat or “adhistan”, no explanation is
forthcoming as to why such other properties cannot be developed in likewise
manner, for the purpose of augmentation of income. More importantly, PW-1
has expressly resented from furnishing particulars of such properties, insptie of
being asked to do so.
On perusal of Exhibit-2, which is the certified copy of arpannama dated
10/4/1950, I find that there are 9 items of immovable properties spread over
Chinsurah, Chandannagar and Calcutta, which had been settled in favour of
the deities. No evidence has been adduced to show, what income accrues from
these properties.
Accordingly, in absence of any evidence on such vital aspects, I have no
constraints to hold that the petitioners have miserably failed to establish the
requirement of augmentation of income of the petitioner nos. 1 to 7, so as to
justify a claim of eviction on the ground of building and
rebuilding…………However , so far as the entire question of building and
rebuilding of the suit premises for augmentation of income is concerned, I find
that two vital aspects involving the same, have not been established before this
court, namely, (i) requirement of augmentation of income of the deities, and (ii)
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the necessary preparations on the part of the landlords or their collaborators for
implementing the project of building and rebuilding, by procuring sanctioned
plan of the proposed building, and necessary permissions from the Corp-oration
and other authorities.
In absence of proper satisfaction of these two vital ingredients/aspects, I have
no constraints to hold that the requirement of the suit premises by the
petitioners as a whole, for the purpose of building and rebuilding the same, to
ensure augmentation of income of all of them, has not at all been established
before the court with adequate strength and credibility, so as to demand a
decree/order of eviction of the opposite party by virtue of the same.
Accordingly, this question is decided against the petitioners.
37. Admittedly suit property partly secular and partly devattar.
Respondents nos. 1 to 7 are deities and the respondent no,. 8 to 12 are
other individual co-sharer of the suit premises. The deities have been
represented by the shebait. Admittedly the suit premises has not been
partitioned amongst the co sharer by metes and bounds. PW1 has deposed
in the trial court on behalf of all the respondents, on the strength of power
of attorney executed by them being exhibit 14 herein. However 1st Appellate
Court has granted decree of eviction on the ground of building re building
on a different consideration. The relevant portion may be reproduced
below:-
“I am not in agreement with the submissions of the Ld. Lawyer appearing
for the appellant/opposite party. Sanctioned plan is only a piece of evidence
without which the conclusion about the landlord’s requirement for building
and rebuilding can also be reached. It is not rule that no sanctioned plan no
requirement. In the case in hand, respondents/petitioners have proved all the
factors as required under law except the sanctioned plan. Exhibit no.9 is the
development agreement entered into by and between the
respondents/petitioners and M/S Merlin Project Ltd. In the said agreement
nature and extent of proposed multi-storied building are clearly mentioned
and that the Ld. Court below has not casted any doubt on the said
agreement. On the other hand, the Ld. Court below relying upon Exhibit NO.9
has come to a finding in terms that the respondents/petitioners in the
necessary financial support required for implementing the proposed project of
building and rebuilding on the suit premises. The area of the suit premises is
more or less 2 bighas and 16 cottahs and the project undertaken in the
development agreement is big one. To prepare a effective sanctioned plan for
such big project measurement of the land and testing of soil are highly
required and such things can only be done when the respondents/petitioners
and their collaborator will have access in the suit premises for the aforesaid
purpose. Accordingly, I am of the view in the facts of the present case that the
case of the respondents/petitioners is not affected any way for not having
232026:CHC-AS:614
sanctioned plan. Considering the pleadings and evidence on record and also
in view of above discussions I am of the view that the respondents/petitioners
have proved their case of building and rebuilding for augmentation of income
and as such findings of the Ld. Court below with regard to point no.3 is set
aside.
In result, appeal fails and cross-appeal succeeds.
38. As I have stated above that the suit premises is partly secular partly
devattar and the plaintiff no. 1 to 7 represent the devattar property where
as plaintiff no. 8 to 12 represent the person who are secular, I find
sufficient force in the submissions made by learned counsel for the
Appellants that the rights of the respondents in regard to the suit premises
are not similar and as such the cause of action for two separate groups can
also be different. There are restrictions as regard how far a devattar
property can be transferred for sale to the Marlin Group and the same does
not apply to the persons who own the property in their own right. It is also
doubtful whether the property of the deity can be transferred to an outsider
who is not shebait in order to augment the income of the shebait, as
admittedly the property in question is unpartitioned. Another tricky point is
also involved in the instant case as to whether the property of a deity can
be divested by the shebait for augmentation of their own income and not
for the welfare of the deity. Such divest of the property by the shebait in
favour of third party in respect of devattar property is also beyond the
intention of the settler. It is also pertinent to be mentioned that in the
previously instituted suit, the shebait has failed to show that they had
sufficient fund for the purpose of building and rebuilding.
39. Mr. Chatterjee on behalf of the appellant strenuously argued that
after being defeated in the previous suit, in the present suit also the
shebaits have failed to show that they have sufficient income of their own
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for development without transferring a portion of developed property to the
Marlin Group. Therefore he argued that there is no change of
circumstances of previous suit to the present suit in regard to the income
to the plaintiff no. 1 to 7 who have failed to show that they have any fund
to their own to develop the property and therefore the suit is barred by the
principles of res judicata. Mr. Chatterjee also argued in this context that
section 34 of trust Act 1881 have no manner of application as regards sale
of devattar property. It is evident that the owner of the property having no
means, have decided to engage promoter for augmentation of their income,
and have proposed to hand over the property to Marlin Projects Limited,
whereby said Marlin would get a lion share of 76% of the total property.
PW1 admitted in his evidence that there is no demarcation of share of the
deities with the individual share. The plaintiff nos. 8 to 12 are not the
shebait of the deity and they are the owner of 1/3rd undivided share and
the deity is the owner of 2/3rd share. In cross examination PW1 stated that
they have never given permission to sell their portion of the property.
40. Therefore it appears that the plea of augmentation of income is mere
desire to earn more money or derive surplus financial benefit. Over and
above whether plaintiffs actually have the genuineness of the claim have
not been established. It is also evident from the cross examination of PW1
that they have other properties in Kolkata but they have not filed any
document to that effect. He also does not know whether other account of
the deity are regularly maintained or not. No evidence has been brought on
record on behalf of plaintiff to show what expenditure is required to be
incurred on behalf of the deities. The two vital aspect involving the issue of
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building and rebuilding have not been established i.e. the requirement of
augmentation of income of the deities and the necessary preparation on the
part of the land lord that they have obtained sanction plan or they are
collaborates for implanting the project of building and rebuilding by
procuring sanction plan of the proposed building and necessary permission
from the corporation and other authority.
41. In order to pass a decree by the court on the ground of building or
rebuilding, he has to satisfy himself about the genuineness of the claim
and also about the reality of the claim made by the landlord and this can
only be established by looking at all surrounding circumstances as decided
in Netaram’s Case (supra). The requirement of the plaintiffs for building
rebuilding must be honest and should not be confined only to the existence
of an intention in the mind of the landlord to divest the interest with the
object of augmentation of personal income.
42. Therefore according to this court, all relevant factors have been taken
into consideration in the illustrated and well reasoned judgment passed by
the Trial Court and the finding of the trial court in arriving at a conclusion
on the point of appellant’s eviction on the ground of building rebuilding
hardly calls for interference, special when first appellate court has failed to
deal with the issues in connection with surrounding circumstances as
stated above.
43. In view of above, the judgment and decree passed by the trial court
and the first appellate court in passing decree of eviction of the appellants
from the suit premises on the ground of default is hereby affirmed but the
judgment and decree passed by the first appellate court in granting decree
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of eviction on the ground of building and re building in TA No. 40 of 1990,
is hereby set aside.
44. SA 98 of 2011 thus stands disposed of.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(Dr. AJOY KUMAR MUKHERJEE, J.)
