JUDGMENT
1. This is an appeal from a judgment and decress dated 9.7.96 whereby partial eviction of the tenant defendant was permitted and a reference ordered as to mesne profits. The defendants are the appellants here.
2. There is a cross-objection by the plaintiff respondent also and they claim that they are entitled to full eviction. Before us they have also asked for qualification of mesne profits by the court itself.
3. The premises in question is 4, Mangoe Lane which is in a very congested office locality of Calcutta. It is not very far from the court premises. Three floors in that building (3rd to 5th) are involved here.
4. The plaintiffs are an extremely prosperous company and they have several subsidiaries and controlled companies. They were orginally managing agents but after the abolition of managing agency they joined hands with another group of managing agents. They own and control some 58 tea gardens and their tea empire is large.
5. The building in question came up sometime in or about 1968 and the defendants were one of the early tenants. They have been in the building from 1970. The rate of rent that they pay is only one rupee per square foot.
6. In the plaint mention has been made of several controlled companies, divisions and departments of the plaintiff. When giving evidence, one Bhaskar Gupta came as the first witness of the plaintiff and he answered some 900 questions or so. He is the principal architect of the plaintiffs’ case on facts. He has emphasized the need for centralization of the plaintiffs departments and controlled companies in the same building at 4, Mangoe Lane.
7. Thereafter, one Sundar Lall Mitra was called on behalf of the plaintiff’s for the purpose of proving mesne prints, which are claimed in the plaint at only Rs. 15/- per squre foot.
8. While granting stay in aid of the appeal, by our interlocutory appellate order dated 24.12.96 we have permitted occupation by the appellant during pendency of the appeal on deposit of charges @ twenty five rupees per square foot on 24,000 square foot.
9. The tenanted area is only 10 square foot less than 37,000. In the decree of the first court eviction has been allowed in respect of 26,305 square foot.
10. On behalf of the defendants three witnesses were called. They gave evidence mainly on a topic which is not today too relevant; the topic was the inadequacy of another building, viz. 2, Fairlie Place where the defendant
was being negotiated with for shifting.
11. In 1988 a move was made on the part of the plaintiff to shift the defendant to No. 2, Fairlie Place which was under occupation of the plaintiff as the tenant of a trust. A large area of the building was vacated by the plaintiff. They took three tenancies for accommodating their racated departments, viz. at St. George’s Gate, A.J.C. Bose Road and also at Diamond Harbour Road. Some departments even closed down then. The vacated protion of No. 2, Fairlie place was kept vacant for nearly 18 months but the Food Corporation did not shift. There was some trouble amongst their workers and they refused to shift.
12. The able arguments on behalf of the respondents were made by Mr. Anlndya Mitra, and those on behalf of the appellants were made by Mr. Chatterjee, and to an extent also by Mr. Majumdar, who had also appeared in the court below.
13. The most significant part of this case is the lack of challenge to the evidentiary part of the case proved by the plaintiff. The evidence of Bhaskar Gupta was summarized in the form of written notes given to court and those notes have also been included in the Paper Book. Although it is not customary to include notes of arguments in the Paper Book yet we find that the breach of this practice has produced some good results in this particular case. The two notes of Food Corporation preceding and following the plaintiff’s notes are also in the Paper Book. Even there, the evidentiary aspect of the plaintiff’s case is practically totally unchallenged.
14. The only case run by the defendant was that the plaintiff requires the space not only for its needs but also for the needs of its associated companies and subsidiaries. Therefore, according to the West Bengal Premises Tenancy Act of 1956, eviction cannot be had.
15. Under section 13(1)(ff) of that Act, a landlord is entitled to obtain possession from the tenant if “the premises are reasonably required by the landlord for his own occupation.”
16. On giving the evidence and the summary notes a thorough examination, we find that out of the 37,000 square foot claimed by the plaintiff practically the whole (34,700 square foot) is covered by the need for shifting of the plaintiff’s own departments, and reopening closed departments; some closed down, as we have said, when the plaintiff shifted from Fairlie Place. It is a matter of interest, but not of much relevance, that Unit Trust was introduced to the Fairlie Place area when Food Corporation refused to move in, and while the appeal was being heard, the building got largely gutted by fire and Unit Trust were thrown out, at least temporarily. A defendant’s witness had mentioned about the lack of fire fighting equipment there.
17. However, that the departments are the plaintiffs manned by the plaintiffs employees and are intended to be expanded by employment of further employees by the plaintiff is stated indetall by Bhaskar Gupta. This part of the evidence is not cross-examined upon at all.
18. The cross-examination has proceeded on the basis that these departments would work for the plaintiff, as well as, and in most cases even more for, the other companies controlled by it. The largest part of the decision of the case, therefore, hinges upon whether the need of a plaintiff company for accommodating its departments can be said to be not really its need, because the departments will also work for other companies.
19. Numerous cases have been cited on both sides. We have ourselves examined the matter by paying the greatest of attention possible for us but upon full examination it appears to us that it is impossible in any view of the matter to treat the requirement for the landlord-plaintiffs own departments as the requirement of any others persons’s than the plaintiff’s.
20. Mr. Mitter even cited the definition of landlord in section 2(d) of the West Bengal Premises Tenancy Act, 1956 to show that company landlords are included, and Mr. Chatterjee even gave us the objects and reasons of no fewer than four tenancy Acts, from 1948 to 1965 (the last an amending Act) to try and suggest that the Legislators had really only human refugees in mind. This only shows the tooth and nail nature of the battle which raged before us. We are of clear opinion, however that the definition does not in any manner exclude companies, and the word ‘his’ in section 13(1) (ff) occurring in the portion quoted above, in spite of doubtful grammar, does not alter the situation.
21. Learned counsel on both sides took the utmost pains and cited, both of them taken together, perhaps some fifty cases and statutes. We hope we are justified in going into the matter at length while hearing, and we hope that we are also justified in not dealing with the cases at all in coming to this decision that a plaintiff can require space for the plaintiffs own departments and characterized it as the plaintiffs own need, especially when such departments are not shown to be either engaging presently or proposing to engage in future in any activity which is either illegal or forbidden by any provisions of the Companies Act, any Taxing Statute or any allied Acts like the MRTP or the Securities and Exchange Board of India Act, 1992 and the SEBI Regulations framed thereunder in 1997.
22. Apart from claiming for the plaintiff’s own departments, the plaintiff made further claims, Inter alia on the basis of two divisions of its, being the Kilburn Divisions which were turned into separate companies before the date of the suit. However, two other departments were the plaintiffs departments at the date of filing of the suit, but were turned into companies after the filing.
23. Numerous authorities were cited as to whether the plaintiff company can obtain eviction of the tenant in West Bengal on the basis that the plaintiff needs the space for companies which are controlled by ft. We are not called upon to decide the general question whether a holding company can, in every case, obtain eviction of its tenant on the ground of requirement of space for its subsidiaries or economically controlled group companies.
We are called upon to decide here, and that too for the limited balance amount of less than 2500 (37000 less 34700) sqare foot, as to whether the landlord’s requirement changes or ceases to be the landlord’s requirement if its departments are converted into separate companies at its own choice. The plaintiff claimed 13200 square foot for its departments converted into companies. So much space is not even available with Food Corporation if the plaintiff gets the full 34700 sq. ft. for its won departments. No exact case, however, could be found where the facts are on all fours. There was no challenge to that important part of the evidence. It must always be remembered, that the plaintiffs departments were got changed into companies by the plaintiff on the basis of the plaintiffs own decision. We are of the opinion that disallowing part of the claim for possession on the ground of conversion of the plaintiff’s departments into the plaintiffs controlled companies would be unjust. Why this is so is explained below in relation to India Foils.
24. This judgment would be incomplete without the mention of that one in particular of the controlled companies of the plaintiff, that is, India Foils. The company shows its importance in several ways in this case.
23. The chief witness of the plaintiff. Bhaskar Gupta, though one time a Vice President of the plaintiff, was a whole time Director of India Foils when he gave evidence. The competence of Bhaskar Gupta was sought to be impeached before us, inter alia because he was only a man from India Foils and not directly from the plaintiff. We overrule such objections because these were not even whispered about in defence either during cross-examination or even in arguments in the court below. We cannot now allow the credit and acceptability of Bhaskar Gupta to be challenged, now when the plaintiff has no more chance to call corroborative witnesses. He claimed to have a general power for the plaintiff to sign legal papers. That claim cannot be doubted at the late stage of appellate arguments.
26. India Foils is again important because during the pendency of the suit it vacated an area of over 12000 square foot at 4, Mangoe Lane and the plaintiff, instead of occupying the area itself for its departments, brought 3 other companies controlled by it, all of which, we emphasize, were and are undisputedly under its control, to occupy the area vacated by India Foils.
27. On the strength of the case of Maqboolunnisa, reported at , Mr. Chatterjee argued that if the landlord has alternative accommodation available, then the landlord cannot obtain possession for his own requirement from the tenant just because he wishes to use some other available and suitable alternative accommodation for some impermissible purpose. We use the word ‘impermissible’ in the tenancy sense and not in the sense of suggesting any illegality. One such impermissible purpose for the landlord would be to let out the available alternative accommodation, and thereafter also, continue to press for eviction of the statutory tenant. Mr. Chatterjee argued that bringing over controlled companies to the 12.000 sq. ft. or so of space, was on the part of the plaintiff, as impermissible as letting out the space. He showed us the evidence that at 4, Mangoe Lane, the plaintiff company takes Rs. 4/- per sq. ft. of table space even from its controlled companies.
28. Section 13(1) (ff) mentions the lack of availability of alternative accommodation as important. The words are” … and the landlord … is not in possession of any reasonably suitable accommodation.” Mr. Chatterjee argued that if the landlord has ceased to be in possession of suitable accommodation because of his own deliberate acts, he cannot even thereafter claim possession from the- statutory tenant, because of his unsatisfied need, he having deliberately kept his need unsatisfied.
29. If the three controlled companies of the plaintiff are not looked upon as separate entities for tenancy purposes then this objection of the defendants would fall. This point is not the point of piercing of the corporate veil really, but of seeing whether the need of the plaintiff encompasses also the need to find suitable places for its economically controlled companies also. Also, in the context of the conversion of some of the departments of the plaintiff, both during and prior to the pendency of the suit, into controlled companies viz. Kilburn Engineering, Kilburn Reprographics, and two others, the same point shows its presence. If these companies are taken to be in the same position as the company’s departments, then the change does not alter the situation. In that event the company can continue to say at the date of the decree that it requires its own premises for its own occupation. If however, the controlled companies are to be treated as separate entitles for tenancy purposes then the situation is exactly the reverse.
30. We have mentioned that no cases could be found on all fours in this regard. The point is, whether the claim for occupation made by a company for its economically controlled companies (the nature of the complete and absolute control being not under any manner of challenge by the defendants whatsoever can be said to be the claim for occupation, and the requirement for occupation, by the controlling company itself.
31. Mr. Mitter gave us provisions from the MRTP Act [sections 2(g), 2(ef), SEBI Regulations, 1997 (Cl. 2(c)], from where he showed that group companies, control and connected companies are concepts known to and accepted in law. He showed us provisions from the Companies Act (sections 2, 2 (3), 4, 370(1-B), 372(2) 2nd proviso, Companies Amendment Ordinance. 1998, sections 14-16) where subsidiaries are defined and also provisions are made whereby, giving of loans to associate or group Companies is controlled.
32. Also Mr. Mitter relied on serveral cases wherein it has been held, for human landlords, that the requirement of the person for his own occupation has to be extended to mean, and include the requirement for his grown up children, his foster son, his son’s business, his spouse, his Deities, his business purposes, the vistis of a married daughter, and even the requirement for an independent brother in commonness who can be expected reasonably by the landlord to live with him. Mr. Mitter argued therefrom that the controlled company is in no different a position from such relations and needs of natural persons (See the cases of Mst. Baga Begum reported at , K.V. Muthu reported at AIR” 1979 SC 628. Bhairab Chandra Nandan reported at , Smt. Bibhabati Ghosh reported at , Himanshu Bikash Das reported at 1991) 1 CLJ 392, Ajit Kumar Majumdar reported at 94 CWN 977, a single
bench decision in Puspa Lata’s case, reported at 85 CLJ 74 and Krishnan Nair reported at (for son’s business, but Tamil Nadu section not expressly quoted). Also Mr. Mitter gave cases where the conversion of a partnership or a single partner’s tenancy into a company tenancy, when made by the tenent, was held not to change materially the real tenant so as to affect the position and possession of the tenancy (see M/s. Madras Bangalore Transport Co. reported at and a Delhi D.B. decision in Inder Mohan Khanna’s case, reported at 1978) 2 Rent Control Journal 99).
33. Both Mr. Mitter and Mr. Chatterjee relied on passages from pp. 159-177 of the 6th Edition of Gower’s Company Law, referring to many English cases regarding piercing of the corporate veil. Both of them cited also cases on the English Rent Control Laws, referred to therein, but in our opinion it would be dangerous to rely on those as the English section in the Landlord and Tenant Act 1954 is substantially differently worded. Mr. Chatterjee drew our attention to 7(1) Halsbury 93 regarding corporate veil, and also to the case of Tunstall v. Steigmann. C.A., 1962) 2Q. B. 593, which interpreted the English section 30(1) (g), and which held to the effect that even if the ‘landlord’ controls all but two shares of a company yet the company’s business purpose is not her own business purpose. Under section 30(1), a landlord could oppose a tenant’s renewal application if he “intends to occupy the holding for the purposes, or partly for the purposes, of a business to be carried on by him therein.” Mr. Chatterjee showed us from Gower p. 164 that some 7 years after this decision the English Parliament had to introduce an amendment in their tenancy law by the Law of Property Act 1969 to put at par the requirements for a business to be carried on by the landlord and a business to be carried on by the landlord’s controlled company. Mr. Chatterjee commented that there is no such amendment made in section 13 (1) (ff) of the W.B.P.T. Act by which a company’s own occupation can be said to include the controlled company’s occupation also. In our opinion, if the words of section 13(1) (ff) are compared with the English section, if will be seen that drawing a paralel in India from the English experience in this regard would be, with due respect, as their words and ours are not substantially identical.
34. Although the West Bengal and the English sections are materially different, we set out below the relevant parts of those, as the important word ‘occupation’ occurs in those every time.
West Bengal Premises Tenancy Act, 1956, section 13(1) (ff):–“… No. … decree for the recovery of possession shall be made … except … where the premises are reasonably required by the landlord for his own occupation … and the landlord … is not in possession of any reasonable suitable accommodation.”
Landlord and Tenant Act. 1927, section 5(3) :–
“… the grant of a new lease … shall not be … reasonable-(a) unless the tenant proves … ” (not material for us)”… or (b) if the landlord proves-(i) that the premises are required for occupation by himself, or, where the landlord is an individual, for occupation by a son or daughter of his over eighteen years of age…” Landlord and Tenant Act, 1954, section 30 (1) (g) :–
” … a landlord may oppose an application (for a new tenancy under the Act) … (on) …grounds… that on the termination of the current tenancy the landlord intends to occupy the holding for the purposes, or partly for the purpose, of a business to be carried on by him therein, or as his residence.”
35. Mr. Mltter cited the single Judge’s decision in Nuthall Ltd., (1947) 2A11 E.R. 384, where on the basis of the 1927 Act, the film people odeon were allowed to refuse a new lease on the ground that they intended to carry on a Cafe business in conjunction with film shows. Their Cafe managers would not be themselves, but Nuthall, who would occupy the Cafe and not Odeon themselves. It was said :–
” … a mere legal right to possession is not enough to constitute occupation for the purposes of this provision.” (390G);
‘ … if not an individual, any physical occupation must clearly be by proxy.’ (391A); and
“… Odeon may be briefly described as a closely associated company.” (391D).
36. In two other cases given by Mr. Mitter, Lord Denning said, quoting himself in the latter of the two,
“Possession in law is, of course, single and exclusive; but occupation may be shared with others or had on behalf of others.”
See Willis’ case, 1965) 1Q.B.140 at 148, referring also to Hills(Patents), 1956) 1Q.B-90 at 99 (lines 5 to 7).
37. Our section uses both the words, possession and occupation. Possession is a more formal legal word than occupation. The plaintiff sues for possession for all three floors, and there is no case that possession will be parted with by the plaintiff, after recovery, in favour of any another individual, whether it is a controlled company or no. The evidence states that more than 90% will be possessed and occupied by the plaintiff through its departments, and the rest occupied by departments converted into companies. If the legal possession of even that rest of the area be with the plaintiff, and the plaintiff has the ability to change the occupation of it at will, the occupation by the controlled company cannot be said to be exclusive of occupation by the plaintiff also. In our opinion the words ‘own occupation’ in section 13(1) (ff) signify the legal right to immediate possession, (which the plaintiff here will admittedly be having, the other companies being totally under its control), coupled with reasonable control over the actual physical occupier, where it is plain that the occupier will occupy because the plaintiff needs him to occupy, and not that he will occupy for needs not sufficiently reasonably connected or related to the plaintiffs own needs. What is sufficiently reasonable will depend, as is so often the case, on the facts and circumstances of each different situation.
38. Mr. Chatterjee gave several cases also to show that piercing the veil is often refused, e.g., Attorney General’s Reference, (No. 2 of 1982} 1984 B.e.L.e 60 (even if all shareholders act by consent, they are capable, of stealing company property). Hungerford investment, ILR (1972) 1 Cal 286/ para 112.
39. In interpreting section 13(1) (ff) of the West Bengal Premises Tenancy Act, 1956, lifting the veil is not, in our opinion, in issue. It cannot be that we lift the veil of the plaintiff company, and also the veil of the controlled companies and look at the corporators behind all these. Such a wholesale lifting of veil is, in our opinion. impermissible. Although the New Horizons case reported at mentions (para 34, quotation from Renusagar case) that the horizons of veil lifting are expanding and although the Indian Courts would be more ready to lift the veil wherever the justice of the case so demands (a view not accepted by the House of Lords as can be seen from the case of Adams v. Cape Industries, reported at 1990) 2 WLR 786 mentioned in Gower, p. 166, ftnt. 13, referred to above), yet the justice of the case cannot demand that we strip the owner plaintiff company of its veil altogether and look at the corporators themselves for the requirement of the plaintiff company’s space for the plaintiff company’s own occupation.
40. In deciding this point, we must again emphasize that the degree of control exercised by the plaintiff company over its subsidiaries and group companies has not come under any challenge from the defendant at all. Exhibit F, which gives the shareholding and controlling pattern of 15 companies, as against only 8 mentioned in the plaint, was not a subject of challenge in the court below. The refresher sheet was admitted to evidence without any objection being raised thereto. No cross-examination was made about the possibility of Exhibit ‘F’ being either inadmissible or being in serious conflict with the members’ registers of any of the companies involved.
41. In this state of the evidence, the only conclusion possible on facts is that the controlled companies move entirely at the behest of the plaintiff company. They go where the plaintiff wants them to go. They are formed when the plaintiff wants them to be framed. They are born from the plaintiffs own departments at any time the plaintiff should so choose.
42. In this state of complete control by the plaintiff, it is not possible to hold that the vacating of one controlled company, viz., India Foils and the reoccupation by other 3 controlled companies, is a matter which shows that the plaintiff had alternative accommodation at its disposal but did not use it with an oblique or impermissible motive. Also, e.g., if the Kilburn Division changes into the Kilbur Company, then, it cannot be held that the requirement of the plaintiff landlord has changed in any substantial manner. The change is brought about at its will, and all by itself, and it does not touch the defendants in any manner. We are not of the opinion that such achange alters the requirement of the landlord for the landlord’s own occupation. If the converted departments cannot be placed, then the coverted department will not themselves look for space in a disjointed manner from the plaintiff company but it is the plaintiff comapany itself which for its own requirement and for its own interest, will look for space for its controlled companies, or departments converted into controlled companies.
43. Also, if the distinction pointed out by us earlier, between ‘possession’ and ‘pccupation’ is borne in mind, it will be seen that the vacating by India Foils and occupation by three other companies in its stead, had never thrown by the plaintiff out of possession, or (this please note) occupation.
Why? Because the needs of India Foils are not any more reasonably related to the plaintiff’s than those of the three newly occupying companies are.
44. The case of Phiroze Bawanji reported at referred to in Bega Begum at AIR 1979 SC at 277 emphasizes the necessity for the presence of an element of need of the landlord while invoking successfully provisions allowing for possession for the landlord’s own occupation: so also in the case of mattulal, .Thus, in our opinion, there should be the presence of this need, of the landlord itself, in whatever manner the actual words of the statute might be interpreted, interpreting section 13(1) (ff) of the West Bengal Premises Tenancy Act we are also of the opinion that the element of the landlord’s need must be present if this provision is to be successfully invoked. The words in this section must be construed as a whole and not dissected into different parts. It would be improper to try to see whether the different parts independently satisfied.
45. For example, the words “for his own occupation”, if interpreted to mean for the occupation of the plaintiff company alone, would lead to results which are in conflict with the ratio, that for successfully invoking such provisions, the element of need of the landlord is to be present. Were we to give this part of the phrase such a restricted meaning, we would be generating cases where in spite of the landlord’s own real need, it cannot get occupation from the tenant, even if the building belongs to the landlord itself, just because the landlord needs to place there its subsidiary companies and controlled companies which are dependent on it. The need in reality is of the controlling company which is the plaintiff. In spite of this need the plaintiff would not, on the restricted meaning, succeed in getting possession because, it has fairly and squarely come out with the case that it will have to house its converted departments also in the area which it will occupy on getting possession from the tenant. We are therefore of opinion that neither the vacating of India Foils and reoccupation by 3 other companies, nor the conversion of the departments of the plaintiff into controlled companies, both prior to and during the pendency of the suit, materially alters the strength of plaintiffs case so far as the invocaton of section 13(1) (ff) and its applicability to the plaintiff’s case on facts are concerned.
46. We are of the opinion that the element of the landlord’s own reasonable need, however generated, is the key to the applicability of this section; such need must the present, and the presence of such need is enough, for the section to operate. Such an interpretation, though more purposive, and less word-bound, is both in line with the authorities discussed, and also more in consonance with the justice of the landlord-tenant situation. It is unjust to evict a statutory tenant without the landlord’s own real and reasonable need, and unjust not to in spite of it. We decide this case on the basis of this interpretation, so far as the small portion of 37,000 minus 34,700 sq. ft. is concerned and also so far as the larger area of above 12000 sq. ft. is concerned, regarding India Foils vacating and three other controlled companies coming in (see Qq. 587 seq. of Bhaskar Gupta).
47. That the plaintiff company takes from its controlled companies Rs. 4/- as rent or occupation charge does not alter the picture. Such charge
is not the same as rent taken from independent third parties. Although it is four times the rate paid by Food Corporation, it is about one fourth the rate claimed by the plaintiff as mesne profits. Such charge, and the taking of such charge do not alter the necessity and need for space felt by the plaintiff for getting its controlled companies housed together with its departments in the same centralized building owned by it. In our opinion the taking of the charge is an economic, arrangement made by the plaintiff at its own unilateral choice, and this is not akin to letting out the space to outsider third parties.
48. In the court below the allowance for possession was made on the basis (largely) that the employees of the plaintiff would require 85 square foot each for occupation. Both sides have felt aggrieved with this method of calculation. This 85 square foot is mentioned in the notes of the plaintiff also, except for Directors. But the learned Judge in the court below has calculated it on the basis of the average occupation per employee by the defendants in their tenanted portion, though the notes, based on evidence, give such area as 82 sq. ft.
49. We do not feel called upon to enter into these calculations as, if the evidence of the sole witness of the plaintiff is to be accepted, there is absolutely no reason why a part of it should be accepted and another part rejected. If the defendant’s only defence, that the requirement of the plaintiff, is a way of smuggling in the requirement of the plaintiffs companies also, fails, then the whole defence falls and the plaintiff’s case must be accepted in toto.
50. If the plaintiffs case on facts is accepted with regard to the departments to be shifted and expanded, as well as the departments to be reopened, and the departments converted into companies, the defendant has to suffer a full decree for eviction.
51. Although the case has been productive of an important decision on the construction of section 13(1)(ff), in regard to how far a plaintiff company can claim possession from the tenant on the basis of its needs for its thoroughly controlled subsidiary and associate companies, yet this case rests, in respect of the facts, on the doctrine as propounded by Lord Herschell in Browne v. Dunn, (1893) 6R 67 (the case is not reported elsewhere than in The Reports).
The passage is set out below :
“I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, i have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not
only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with the witness.”
52. The quotation is there in the judgment of Tek Chand, J. given in the case of M/s. Chunilal. reported at . We have put a comma after ‘circumstances’, because the connected words are ‘explain … circumstances’.
53. The question is also considered and applied in a well known Division Bench judgment of our court, being the will case of Carapiet, reported at .
54. We have accepted this rule of fair play and fair dealing in India, as they have in England, although perhaps not in ireland (see Phlpson, para 1593). Let us see how this rule operates on the facts and the first trial of this case, after one interposing paragraph.
55. We have duly noted, that as regards one of the two departments converted into companies during the pendency of the suit, Bhaskar Gupta mentioned the name in his evidence, but the exact area needed for it (2500 sq. ft.) is not mentioned, not even once, in his evidence. Only in the notes of arguments the estimated requirement of 2500 sq.ft. is given. This we discount, since notes cannot replace the necessity for oral evidence. However, the mention of this ‘department company’ remains, and the claim for floor area made for the other department company, namely McNeill International and the two other Kilburn companies, which were converted before filing of the suit, would bring the claim to a figure in excess of what is possessed by the Food Corporation, if these are added to the claims made for the departments of the plaintiff which have remained as departments.
56. The sketchiest part of Bhaskar Gupta’s evidence is, to take it as an illustrative example, perhaps with regard to the package tea division. Only three questions were asked in chief. 6000 square foot was claimed on this basis but there was no cross-examination. There was no suggestion that the evidence of Gupta is inadequate. There was no indication given that arguments would be made, if further evidence was not led, whereby the court would be asked not to act on the evidence of Bhaskar Gupta.
57. This strategy in cross-examination was kept up in arguments and inadequacy of evidence was not a point on which the learned Judge in the court below was asked to dismiss the plaintiffs suit, either as to any part or the whole.
58. Only in the fifth ground of the Memorandum of Appeal is inadequacy of evidence mentioned. It is also argued on the basis ofthe case of K.K. Chari, reported at that it is the duty of the court to give a decision on the existence of good grounds for the tenant’s eviction on the basis of the landlord’s own requirement. Reliance is also placed on the case of Bahadur Singh reported at 1969 (2) SCR 432. We are of the opinion that no arguments about inadequacy of evidence having been made before first Judge, it ts unfair both to him and to us now, to ask to upset the entire case on that hitherto unargued ground.
59. If we were to allow arguments of this type to be advanced for the first time in the appellate court, then we should be encouraging the growth
of a most unwholesome and unhealthy practice. That practice would be for the defendant to hold back the exposure of the lacunae in the evidence of the plaintiff, both oral and documentary, both during cross-examination and during arguments before the first court, even if those are apparent to the adversary, and then expose those for the first time in the appellate court. If this practice is encouraged, a plaintiff with even a good case, might have to face untold harassment. Also it will encourage trickery in advocacy, as Mr. Mitter correctly argued. We therefore do not allow the urging of factual points on inadequacy of evidence for the first time before us, as it is not the law to allow it. We, therefore, conclude that no challenge was thrown to the evidence given by Bhaskar Gupta, because it was the defendant’s considered choice (of course, through counsel) not to challenge it in the court below. The defendant thereby impliedly conceded that it had no case, or a weak case on facts. It would be wholly improper, in our opinion, and as correctly argued by Mr. Mitter, to allow the defendant to make a volte-face now, and contend that in the court below the defendant did not have a weak case, but that its case suffered from a weak conduct of it.
60. We, therefore, allow the plaintiffs claims in full. The cross-objection is also allowed and eviction is permitted to be had from the entirety of the three floors under occupation of the defendant at premises 4, Mangoe Lane. The evidence regarding mesne profits was equally, if not even more unchallenged during cross-examination. Sundar Lall Mitra had mentioned several rates ranging from 28 rupees per square foot to even near 50 rupees per square foot. The claim in the plaint is a modest 15 rupees per square foot. We do not think it will be just to the parties, although they are perhaps both rich enough to bear litigation costs, to send them now to a referee as has been directed in the court below. On the basis of the evidence (we have to exercise great judicial restraint not to say on the basis of well known facts also, but we do not say it) 15 rupees per square foot mesne profits per mensem should be and is allowed here and now. There shall be no further enquiry in regard thereto. There shall thus be a decree in terms of claim (a) of the plaint. The plaintiff shall also be entitled to mesne profits @ 15 rupees per square foot per month from the date of pronouncement of the decree by the First Court in so far as 26,305 square foot is concerned and from date hereof in so far as the rest of the area (10,685 sq. ft., be it a little more or less) is concerned. This has to be so. as a plaintiff in West Bengal cannot claim mesne profits at any rate higher than rent until the snapping of relationship of landlord and tenant by a decree of a competent court. We have not been addressed on any unpaid arrears of rent and as such we do not pass any other decree.
61. The plaintiff will be entitled to adjust as against the decreed amounts the moneys which have been or shall be deposited by the Food Corporation of India so as to enjoy the appellate interlocutory order of stay against execution of the decree appealed from.
62. In the result, the decree appealed from and cross objected to is altered both as to the area of eviction allowed we having enhanced it to the full extent claimed, as well as in respect of mesne profits, we having allowed that again to the full extent claimed, without the necessity of a reference. The appeal fails but the cross objections succeed.
63. The Food Corporation prays for stay of operation of the appellate decree and the order of adjustment passed by us today. Such prayer is allowed/There shall be a stay of operation as asked for a period of four months from date hereof.
64. We clarify that during the continuation of the stay granted today, our interim order dated 24.12.96 (Paper Book, p. 946) will remain operative; in other words, if the Food Corporation makes default in payment of the amount ordered therein they will subject themselves to execution proceedings in regard to the first court’s decree including the area allowed to be possessed by the landlord in that court. Although costs were not allowed in the court below, we are of the opinion that there being about 18 days of hearing in the court below and 13 before us, it would be most unfair if costs were not to follow the result. The plaintiff respondent will be entitled to such costs as might assessed by the Taxing Department, both in the court below and before us.
65. Copy of the judgment delivered to-day containing the decree and the order for adjustment be made available by way of authenticated photocopies to the parties subject to their undertaking to have the appellate decree and order duly perfected hereafter. Parties, the departments including the Taxing Department and all others concerned to act on such authenticated photo copies untill certified copies are available.
66. Order accordingly