JUDGMENT
1. This second appeal has been preferred by the defendant/appellant against the judgment and decree dated 19-2-1985 passed by the Ld. Assistant District Judge, Murshidabad in Title Appeal No. 10/83 thereby affirming the judgment and decree dated 30-9-1982 passed by the learned Munsif, Second Court Berhampore, Distirct Murshidabad in O.S. No. 258/66. As it appears from the record the suit has a chequered career. Initially, the suit brought by the plaintiff respondent against the tenant defendant appellant was decreed in the trial Court on the grounds of nuisance, reasonable requirement and default by the judgment dated 10-12-1968. Against the said judgment and decree the First Appeal was preferred by the defendant appellant being T.A. 34/69 which was dismissed by the First Appellate Court as per judgment dated 24-6-1972. The Ld. Subordinate Judge held that the ground of nuisance or annoyance was not established. But the findings of the trial Court that plaintiff respondent reasonably required the suit premises for her own use and occupation and that the defendant appellant was a defaulter were confirmed and the trial Courts decree was upheld. Against the judgment and decree passsed in the said Title Appeal
No. 34/69 Second Appeal was preferred by the defendant appellant before this High Court and the said Appeal being S.A. 411/73 was heard and disposed of by B.N. Mitra, J. on 12-1-1981. The appeal was allowed. The judgment and decree appealed against were set aside and the suit was remitted to the trial court for disposal according to law on the specified directions given therein which 1 shall refer to in this judgment at appropriate stage. The suit was again decreed by the trial Court as per judgment dated 30-9-1982, The Ld. Munsif held that the defendant was a defaulter in payment of rent as he failed to prove when the M.O. for the rent for Sept. 1965 was sent and on which day the same was refused by the plaintiff and also on the ground that the plaintiff required the whole suit premises for her personal use and occupation. Again there was First Appeal being Title Appeal No. 10/83 at the instance of the defendant appellant which was dismissed by the Ld. Assistant District Judge by the impugned judgment and decree dated 19-2-1985 whereby the First Appellate Court affirmed the findings of the trial Court on the ground of default holding that the defendant had not made any valid tender of rent for the month of Sept. 1965. The finding of the Ld. Munsif as to the reasonable requirement of the suit premises for the plaintiffs own use and occupation was not concurred with The First Appellate Court held that the plaintiff could easily use the room measuring 8 ft x 10 ft on the ground floor as her drawing room. Against the finding of the Ld. Assistant District Judge deciding the issue of the plaintiffs reasonable requirements of the suit premises for her own use and occupation as a drawing room against her a cross objection has been filed on behalf of the plaintiff respondent which has been heard together along with this appeal. I shall take up the cross-objection while deciding the point of reasonable requirement at appropriate stage.
2. In this second appeal the only ground of objection taken on behalf of the defendant appellant is that the Ld. First Appellate Court made a serious error in law in holding that the defendant appellant failed to make any valid tender of rent for the month of Sept. 1965 before depositing the same with the Rent
Controller in Case No. 51/65 under Section 21 of the West Bengal Premises Tenancy Act. It is also urged in the memo of appeal that the Ld. First Appellate Court while concurring with the finding of the Trial Court absolutely misconstrued the postal money order receipt No. 134 and came to a baseless finding that the receipt related to some time in June 1965. It is asserted in the memo of appeal that the First Appellate Court should have held that the rent for Sept. 1965 was deposited with the Rent Controller after the same was tendered by money order and refused by the plaintiff landlord. It has been also urged in the memo of appeal that the Ld. First Appellate Court erred in law by holding that for want of valid tender of rent for the month of Sept. 1965 all the subsequent deposits of rent with the Rent Controller were invalid and the defendant was a defaulter within the meaning of the relevant provisions of the West Bengal Premises Tenancy Act. It is also urged in the memo of appeal that the validity of the deposits with the Rent Controller was not challenged in the plaint or in the evidence before the Courts below and that no particulars of default were disclosed in the plaint.
3. Mr. Sudhis Dasgupta with Shri A.K. Sahoo and Shri N. Karak has appeared in this appeal for the defendant appellants while Shri N.N. Bajpayee with Shri Subrata Chatteraj has appeared for the plaintiff respondent. The facts of the case would appear from the impugned judgment of the First Appellate Court which I do not think necessary to repeat here. It is worth mentioning at this stage that the judgment passed by this Court in Seond Appeal No. 411/73 has been (Adhir Kumar Das v. Smt. Judhika Sen). In the S.A. 411 /73 it was urged before this Court that the Court was to take notice of subsequent fact to do complete justice between the parties. It was urged that after the death of the plaintiff’s husband during the pendency of the suit one of the rooms fell vacant in the ground floor which was let out by the plaintiff to G.B. Pharmacy. In the original suit the plaintiff’s case was that she required the suit premises where the defendant appellant was running a press for using the same as her drawing room.
The question before this Court in S. A. 411 / 73 whether the room which was let out in the G.B. Pharmacy during the pendency of the suit could be used as the drawing room of the plaintiff. It was also urged that in the plaint there was no assertion that the plaintiff was not in possession of any reasonable suitable accommodation elsewhere within the meaning of Section 13(1)(ff) the West Bengal Premises Tenancy Act. As the suit was filed in the year 1966 and the amended provision of Section 13(1)(ff) of the Act came into force thereafter this Court in the second appeal thought that the plaintiff should be given a chance to amend the plaint suitably. It was also urged before this Court in course of hearing of the said S. A. 411/73 that the rent for the month of Sept. 1965 was sent by money order to the plaintiff within that month which was refused on 1-10-1965. It was ‘further urged that the defendant filed the postal acknowledgment receipt to show refusal by the landlord in the office of the Rent Controller along with an affidavit for depositing the rent of Sept. 1965 regarding the premises in question. It was also the plea that the defendant subsequently took back those documents from the Rent Controller for filing the same in the present suit but subsequently all the papers so taken away were misled and could not be traced and as such this could not be filed in the trial Court. It was urged in the said Second Appeal before this Court that the money order coupon No. 134 is used to him in postal department in Sept. 1965 has since been recovered and was in the custody of the defendant and that an opportunity should be given to the defendant to adduce additional evidence by admitting the said receipt. This Court held in the aforesaid second appeal as follows:–
“The defendant is negligent. There is no reason why he did not produce the money order coupon and the postal acknowledgment receipt in the Trial Court or in the First Appellate Court. So this negligence cannot be condone and the plaintiff’s prayer for acceptance must be rejected.”
This Court further held as follows:–
“In this case, the defedants own default or
neglect is apparent because he duly called for the records of rent control case, but failed to produce the same before the Ld. Munsif. Hence he cannot be permitted to give secondary evidence regarding the contents of the postal acknowledgment refusal receipt out even then this Court felt the necessity to admit the postal receipt No. 134 as additional evidence arrive at a finding if the rent of Sept. 1965 was sent in time and then refused by the plaintiff, i.e., whether the same was duty tendered by the defendant”. Following the decisions of this Court in the Bench Case of Anima Das Sharma reported in 1976 (2) Cal LJ 243 and the decision of the Privy Council in the case of Parsotin v. Lal Mohan and also a decision of the Supreme Court in the case of K. Venkat-ramiah v. A. Seetharama and also decision of the Surpeme Court in the case of N. Singh v. Financial Commissioner this Court observed that the true test to be applied in dealing with an application for additional evidence is whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Applying that test the Hon’ble Judge Shri B.N. Mitra held that in the instant case it is clear that the Appellate Court is not able to pronounce the judgment satisfactorily on the materials before it firstly because there was non-examination of the plaintiff. It would be helpful to quote the relevant portion of the judgment of this Court delivered in, the S.A. 411/73:-
“The law is that non-examination of the parly is the strongest possible circumstance to discredit the truth of one’s case, vide the case of Sardar Gurbaksh Singh v. Guridal in . In this Court an affidavit has been filed on behalf of the plaintiff-respondent, but that has not been sworn in by herself. Her son purported to file it. D.W. 1 Adhir Das is the defendant. He gave evidence. There is inherent defect or lacuna because of the deeming provision envisaged by the proviso to Section 21 of the West Bengal Premises Tenancy Act when it is considered
along with the postal acknowledgment receipt No. 134. So despite the negligence of the defendant the Court is not able to pronounce the judgment on the materials on record. In order to deliver the judgment in a more satisfactory manner, it is absolutely necessary to admit that postal receipt as additional evidence to arrive at a finding if the rent of Sept. 1965 was sent in time and then refused by the plaintiff, i.e. whether the same was duly tendered by the defendant.”
Regarding reasonable requirement the Hon’ble Judge while remanding the suit to the Trial Court directed as follows:–
“The law is that the Court can take notice of subsequent events to shorten litigation and to do justice between the parties. Since the matter will be remitted to the trial Court, that Court will have to consider whether the alleged room which has been let out to G.B. Pharmacy could be used by the plaintiff as her drawing room.”
4. After remand the plaintiff respondent amended the plaint in terms of the directions given by this Court and the defendant appellant filed additional written statement. I will first take up the findings of both the Courts regarding the point of default allegedly made by the defendant appellant in the matter of payment of rent staring from Sept. 1965. As to the finding of the reasonable requirement I shall lake up that matter along with the cross objection preferred by the plaintiff respondent thereafter. In the plaint, it is surprising to note there is no specific ground of default has been taken or made out excepting a bald statement that the defendant has not been paying rent in terms of the contract and that as such he is a defaulter. Under the provisions of the West Bengal Premises Tenancy Act no suit for eviction on the ground of default of payment of rent lies unless the defendant tenant has defaulted in payment of rent for two months within a period of 12 months before the filing of the suit. Admittedly rent up to August 1965 has been duly paid to the plaintiff landlord. The Ld. Advocate appearing for the appellant has submitted that as there is no case of the plaintiff respondent that the defendant has
defaulted in payment of rent for two months within a period of 12 months before the filing of the suit, the ground of default should be outright rejected. But I am unable to accept this contention of Shri Dasgupta as in the order of remand passed by this Court in S. A. 411/73, the scope of enquiry is limited to the question whether the rent of Sept. 1965 was sent in time as per postal receipt No. 134 and then refused by the plaintiff i.e. whether the same was duly tendered by the defendant. The postal receipt No. 134 was admitted as an additional evidence in the Court below and was marked Exbt. ‘F’, but the trial Court did not place any reliance on the said receipt No. 134 as per Exbt. ‘F’ as a proof that the rent of Sept. 1965 was sent by M.O. to the plaintiff sometime in Sept. 1965. The trial Court has held that the defendant has failed to prove his contention regarding the tender of rent for the month of Sept. 1965 to the plaintiff by M.O. and her refusal of the same and that as such the defendant is a defaulter in the payment of rents. The reasonings given by the trial Court are as follows:–
“On perusal of the aforesaid evidence on record the document filed on considering the facts and circumstances of the case. I find that the postal receipt No. 134 (Ext. F) bears the stamp of the Khagra Post Office dated 6.65 (The portion bearing the exact date, being torn in not visible). The defendant claims that he has tendered the rent for the month of Sept. 1965, within that month. If that be the real position, then why the postal receipt No. 134 bearing the date -6-65 (the portion bearing the exact date, being torn, is not visible was filed in court). There is no explanation to the effect either in the addl. written statement or in the evidence of the defendant. Furthermore, there is nothing on record regarding the date of the alleged tender of rent for the month of Sept. 1965 by the defendant. Regarding tender of rent for the month of Sept. 1965 and the refusal of the M.O. by the plaintiff, the defendant has failed to give the respective dates to the satisfaction of the Court. While the date regarding tender of the said rent was not at all pleaded or stated in the evidence, two dates i.e. 1-10-1965 and 4/5-10-1965 were pleaded and stated in the evidence
on record. Why this discrepancy regarding this date of refusal? There is no explanation though the defendant has deposed that the said dates of sending the rent and refusal of the M.O. were known to him all along. “The Ld. First Appellate Court has accepted the reasonings given by the trial Court and has held that the defendant had not made any valid tender of rent for the month of Sept. 1965 before depositing the same with the Rent Controller under Section 21 of the West Bengal Premises Tenancy Act and therefore the defendant “is a defaulter within the meaning of the word in the relevant provision of the said Act.” In the impugned judgment the First Appellate Court has concurred with the finding of the trial Court that the postal money order receipt No. 134 was granted sometime in the month of June, 1965, as was evident from the date seal of the post-office. The Ld. First Appellate Court observes:
“The actual date has become bleary to view. The Ld. Munsif found it to have been granted sometime in June, 1965. I have personally examined it and found that it was granted sometime in the month of June, 1965. Therefore, the story of the defendant that his deposit of the rent for the month of Sept. 1965 with the Rent Controller was made after due tender thereof with the plaintiff through any money-order is hardly believable. The defendant, namely, Shri Adhir Kumar Das is the witness No. 3 for the defence. He was examined and cross examined after the remand of the suit on 21-9-1981. Restates in his cross examination on 21-9-1981 that the plaintiff refused to accept the money order for the rent of Sept. 1965 on 4/5th day of October, 1965. On the other hand he has stated in the additional statement that the refusal took place on the 1st day of October, 1965.”
5. It has been contended by Shri Bajpayee, the Ld. Advocate appearing for the plaintiff respondent that the concurrent finding of both the Courts below on the fact that the rent for Sept. 1965 was not duly tendered by the defendant appellant by money order receipt No. 134 as per Exbt. ‘F’ and that the defendant has failed to show that the rent of
Sept. 1965 allegedly sent by postal receipt No. 134 to the plaintiff was refused by her cannot be challenged in second appeal. Shri Das-gupta on the other hand appearing for the appellant has argued with reference two reported decisions of the Supreme Court and of this High Court and to the provisions of Sections 100 and 103 of the amended Code of Civil Procedure that in the instant case this court while sitting in Second Appeal can look into the question of fact decided by the Courts below. In order to appreciate the contentions of Shri Dasgupta and Shri Bajpayee it would be helpul to refer to the provisions of Sections 100 and 103 of the amended Code of Civil Procedure. Section 100 runs as follows:–
“Section 100. Second Appeal. — (1) Save as otherwise expressly provided in the body of this Code or by any other law for he time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard only on the question so formulated, and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
Section 103 runs, as follows:-
“Section 103. Power of High Court to determine issue of fact. — In any second
appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,–
(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court by reason for decision on such question of law as is referred to in Section 100.
Shri Dasgupta has referred to a Full Bench decision of this High Court in Ratanlal Bansilal v. Kishorilal‘s case . After consideration of a catena of reported cases decided by the Supreme Court and our High Court that the Second Appeal would lie on finding of fact arrived on no evidence or arrived at perversely on erroneous application of the principle of law otherwise settled. In the said reported case the view taken by a Division Bench of this High Court reported in 1988 (1) CLJ 278 (Devoki Nandan Boobna v. Hara Sunder) was differed from and the perspective of Sections 100 and 103 of the Code of Civil Procedure was considered at length in the context of a large number of decisions of the Supreme Court. Shri Dasgupta has also referred to a decision of the Supreme Court (Mattulal v. Radhe Lal). This case was not, however, considered in the above Full Bench case of Calcutta High Court. In this case it has been held by the Supreme Court that the finding reached by the Additional District Judge, the First Appellate Court, on an appreciation of evidence that the landlord does not bona fide required the premises in question for the purpose of starting business as a dealer in iron and steel materials is a finding of fact and not a finding of mixed law and it cannot be interfered with by the High Court unless it is shown that in reaching it a mistake of law is committed by the Additional District Judge or it is based on no evidence or is such as no reasonable man can reach. It has been argued by Shri Dasgupta that the concurrent findings of both the Courts below that the postal receipt No. 134 as per Exbt. ‘F’ does not relate to the rent for the month of
September 1965 and the date seal appearing there is of sometime in June, 1965 is per-versed, absolutely baseless and indicates a third case made out arbitrarily by the Courts below which was not the contention of any of the parties made there. It has been argued by Shri Dasgupta that none of the Courts below cared to follow the spirit of the directions given by this High Court in remanding the suit. In the judgment passed by this Court justifying the remand the Ld. Judge took serious note of the fact that the plaintiff was not examined in this case. The Ld. Judge has observed that the law is that the non-examination of the party is the strongest possible circumstances to discredit the truth of one’s case. After remand the plaintiff did not examine herself before the Court or on commission to deny that the rent for the month of September, 1965 was tendered to her by money order in September, 1965 and was refused by her. After remand the plaintiff’s son Binod Sen was recalled and cross examined. He says that his mother was suffering from heart trouble and in cross examination he says on 10-7-1981 that his mother was suffering for the last 17/18 years. The plaintiff is still alive. There is no explanation why she could not come to Court to depose or why she could not be examined on Commission. The said Benod Sen is PW 2, after remand he says in his cross examination that he heard from his mother that she never refused any M.O. for the rent of September, 1965. In the absence of the mother, being herself examined all these evidences are inadmissible. The defendant appellant is PW 3. After remand he was recalled and his evidence is that he sent the rent of September 1965 to the plaintiff by M.O. as postal receipt which was marked Exbt. ‘F’. He says that this Exbt. ‘F’ bearing No. 134 was the receipt filed by him before the Hon’ble Court. He also says that the plaintiff refused to accept the M.O. in October, 1985. He could not remember the date but said that the plaintiff refused to accept the same in his presence. In his cross examination the defendant has said that he sent the M.O. in the last part of Sept. 1965 and the plaintiff refused the same on 4/5th of October, 1965. As I have already noted both
the Courts disbelieved the story on tender of rent of September, 1965 by M.O. as per postal receipt No. 134. Both the Courts below have held that the receipt No. 134 does not relate to the rent of September, 1965. Both the Courts below have found the date of the receipt to be sometime in June, 1965. Shri Bajpayee has argued that this concurrent findings of fact even if held to be erroneous cannot be challenged in second appeal. He has also relied upon the decision of the Supreme Court in Muttatal’s case . In this case the Supreme Court has held that on erroneous finding of fact made by the Ld. Additional District Judge would not entitle the High Court to interfere in second appeal and set aside the findings of fact so long as there was some evidence to support it and it could not be branded as arbitrary, unreasonable or perverse. In the said case there was evidence to sustain the findings of fact arrived at by the Additional District Judge. The question in our case is whether the finding made by the First Appellate Court in the impugned judgment regarding the particulars of the money order receipt No. 134 as per Ext. ‘F’ is sustained by any evidence on record. Shri Bajpayee submits that there is supporting evidence while Shri Dasgupta submits that there is none. Furthermore, according to Shri Dasgupta the impugned findings is arbitrary, unreasonable and perverse making out their case which is neither here not there. In my opinion the starting point is what was produced before this Court for admitting the same as additional evidence in S. A. 411/72 in support of the contention that the rent for September, 1965 was sent by M.O. as per postal receipt No. 134. It is the defendants categorical evidence in the Trial Court after the case was sent back on remand that Exbt. F which is the postal money order receipt No. 134 by which rent for September, 1965 was sent to the plaintiff, was produced before this Court for admitting the same as additional evidence. It has been contended by Shri Bajpayee that the Expt. ‘F’ is not the same receipt which was produced before this High Court, in view of the fact that both the Courts below came to a finding that the date seal
appearing on the same refers to a date sometime in June, 1965. It is difficult to accept such contention. Aftergoing through the judgment of this High Court passed in the aforesaid second appeal there is no doubt about the fact that postal receipt No. 134 showing the remittance of rent of September 1965 to the plaintiff was filed before this Court for its acceptance additional evidence. In paragraph 14 of the judgment the Hon’ble Judge has recorded as follows:–
“Then about the case of default, the receipt No. 134 said to have been issued by the postal department to the defendant in September, 1965 has been filed in this Court for its acceptance as an additional evidence.” In paragraph 16 the Court further records that nevertheless the original postal receipt No. 134 has been produced in this Court. Such recording of fact made by this Court while hearing the above mentioned second appeal must be taken in the context of the entire judgment. This Court being satisfied that the said receipt No. 134 is required to be admitted as an addition evidence for ends of justice allowed the defendant to put the said receipt in evidence after the suit was remitted back to the Trial Court. This Court directed the Trial Court to accept the said document as additional evidence and to arrive at a finding if the rent of September, 1965 was sent in time and then refused by the plaintiff. It is difficult to conceive that after a protracted trial the defendant on getting permission of this Court to tender receipt No. 134 as additional evidence to prove that the rent of September, 1965 was duly sent to the plaintiff and was refused by her, would just for fun of it filed a different receipt bearing a date seal of sometime in June, 1965. I have gone through the Exbt. F which has been produced before me. It is now almost obliterated, torn and indecipherable. The date seal is partially torn and indistinct. The name of the payee is Juthika Sen who is the plaintiff. There is nothing to show that the date seal relates to June, 1965. Even the number is not now there as the vital portion is torn. But both the Courts below have found the receipt to bear the No. 134. From the judgment of this Court passed in second appeal in S.A. No. 411/73,
the relevant portions of which I have already quoted, there is no doubt that this receipt No. 134 issued by the postal department to the defendant in September, 1965 was filed in this Court and was allowed to be admitted as an additional evidence. There is absolutely no justification factually or legally of the concurrent finding of fact made by both the Courts below that the receipt No. 134 as per Exbt. ‘F’ relates to June, 1965. There was no legal reason on the part of the First Appellate Court or for that matter of the Trial Court to come to such a finding. It is based on no evidence and from the evidence on record no reasonable man can reach such conclusion. The finding is arbitrary, unreasonable and perverse. Both the Courts below in their finding that the rent for September, 1965 was not tendered by the defendant by M.O. in time to the plaintiff and that the plaintiff never refused to accept the same based their reasoning on hearsay and inadmission evidence as I have already noted. The plaintiff was not examined and there is no cogent explanation for non-examination. The First Appellate Court most illegally rejected the defence evidence while concurring with the finding of the Trial Court that the rent for September was sent by M.O. as per postal receipt No. 134 in September, 1965 and was refused by the plaintiff. The matter purely comes under Section 103(B) of the Code of Civil Procedure. Such a finding of fact which has been wrongly determined by both the Courts below by reason of a decision on such question of law as is referred to in Section 100 can definitely be looked into by this High Court in exercise of its power under Section 103 read with Section 100 of the Code. While looking into the evidence on record I find no legal basis (sic) for the concurrent finding of both the courts below that the postal receipt No. 134 as per exhibit (F) relates to June 1965 and that the defendant-appellant has failed to prove that the rent for the month of September, 1965 was sent to the plaintiff respondent landlord within time as per the above exhibit and the same was refused by her. On the other hand this court finds that the rent for the above month was duly tendered to the plaintiff landlord by M.O. as per Exhibit (F) within time and the same was refused by her.
There was no lawful reason for the courts below to reject the evidence of the defendant appeallant in this regard. The defendant landlord having refused to accept the rent for September, 1965 duly tendered within time by M.O. as per Exhibit (F) sent by the defendant appellant the latter was quite within his right to deposit the same as well as the rents for the successive months with the rent controller under Section21 of the West Bengal Premises Tenancy Act. The defendant appellant in his cross-examination after remand has stated that he sent the relevant M.O. in the last part of September but does not remember the date. Naturally after a long lapse of 16 years it might not have been possible for him to remember the exact date. He has further said that the plaintiff refused to said M.O. on 4th-5th of October 1965. The courts below should have relied upon this evidence of the defendant appellant as the plaintiff did not avail herself of the opportunity given by this court to examine herself before the trial court on oath and to deny the defendant’s allegation in this regard. Accordingly, on the basis of the postal receipt as per Exhibit (F) the defendant appellant is entitled to get the benefit of the presumption to be drawn under the proviso to Section 21 of the West Bengal Premises Tenancy Act. As I have already held, the concurrent findings of both the courts below on the point of default are absolutely baseless and unrelated to the evidence on record and defendant appellant must be found to have committed no default in the matter of payment of rent for the month of September, 1965 according to law while accepting the evidence adduced by him on the point. There is no basis of the plaintiff’s case that the defendant appellant is a defaulter in the payment of rent in respect of the suit premises. In course of his argument Shri Sudhis Dasgupta, the Learned Advocate appearing for the defendant appellant has filed an application for additional evidence under Order 41, Rule 27 of the Code of Civil Procedure and has produced a postal M.O. receipt bearing No. 4204 dated 10-6-1965 addressed to the plaintiff and the connected M.O. acknowledge receipt dated 11-6-1965 purporting to show that the finding of both
the courts below that the Exhibit F is related to June, 1965 is absolutely wrong. This, in my opinidn, is not permissible. Courts findings are to be challenged on the basis of the materials and evidence on record and by the provisions of law I have already found that the finding of both the courts below that the postal M.O. receipt No. 134 as per Exhibit (F) relates to June, 1965 is baseless and is noboy’s case. Both the courts below made out a third party case beyond the scope of the pleadings and evidence adduced by the parties which must be rejected according to law. The above application for additional evidence filed on behalf of the defendant appellant is unwarranted and must be rejected.
6. The first appeal court has dismissed the appeal preferred by the defendant appellant on the finding that the defendant appellant had not made any valid tender of rent for the month of September, 1965 before depositing the same with the rent controller under Section 21 of the West Bengal Premises Tenancy Act and has held the defendant to be a defaulter. As this finding cannot be allowed to stand in view of the above facts and circumstances as discussed above the impugned judgment and decree passed by the first appeal court must be set aside.
7. The Learned first appeal court has, however, found that the plaintiff respondent doe not reasonably require the suit premises for her personal use and occupation, most specifically to be used as a drawing room of her son. Admittedly the plaintiff respondent during the pendency of the present litigation let out a room of her premises on the ground floor to one G.B. Pharmacy. This court while remanding the suit as per judgment passed in S.A. No. 411 of 1973 gave an opportunity to the plaintiff respondent to amend the plaint by pleading that he is not in possession of any reasonably suitably accommodation elsewhere apart from the disputed premises. This court further directed while remaning the case that the defendait will be given a chance to file additional written statement and thereafter further evidence will have to be taken by the court of first instance. The Trial Court was directed to consider on remand whether
the alleged room which has been let out to G.B. Pharmacy could be used by the plaintiff as her drawing room. After remand the plaint was amended accordingly and the parties adduced additional evidence on the point. There has been a local inspection in respect of the room occupied by the G. B. Pharmacy and pleader Commissioner’s report is Exhibit (I). The plaintiff has not examined herself in the trial court either by appearance or in commission. The Learned Munsif in his judgment dated 30-9-1982 has come to the conclusion that the alleged room which has been let out to G.B. Pharmacy could not be used as her drawing room. For coming to such conclusion he has referred to certain discrepancies in the evidence of the defendant which are not clear to this court. Such discrepancies have nothing to do with the question whether the room let out to G.B. Pharmacy during the pendency of the suit could not be used by the plaintiff as her drawing room. The local inspection report as per Exhibit (I) shows that the room of the G.B. Pharmacy is quite a big one. The trial Court while relying upon the evidence of the (sic) that she has no other reasonably suitable accommodation elsewhere apart from the disputed premises has held that he has no hesitation to come to the conclusion that the plaintiff has no other reasonably suitably accommodation elsewhere apart from the disputed premises. The Learned Munsif decreed the suit on the ground of reasonable requirement also. The first appeal court has not agreed with the above findings of the trial Court on the issue of reasonable requirement of the suit premises by the plaintiff for the same to be used as her drawing room. He has also not agreed with the finding of the trial Court that the room or the rooms which was or were let out to the G.B. Pharmacy could not be used as a drawing room. The Learned first appeal court has noted the non-examination of the plaintiff herself as a witness in this case. The Learned first appeal court has considered the local inspection report as per Exhibit (I) which shows that the room now in occupation of the G.B. Pharmacy measures 20’6 1/2″ in length and 6’4″ in breadth. The pleader Commissioner’s report shows that there has
been some alterations in the said room regarding the removal of some doors and windows and the floor level to make the same usable as a shop room. On due consideration of the evidence of the plaintiff’s son, Binode Sen PW 2, the Learned first appeal court has come to a finding that the present measurement of the room occupied by the G.B. Pharmancy tallies with the statement of Binode Sen made on oath as to the existence of three rooms 4′ x 4′, 8′ x 10′ and 6′ x 4′ amalgamated into a single room. He has come to a definite finding that the plaintiff during the pendency of the suit had let out three rooms of the respective size of 4′ x 4′, 8′ x 10′ and 6′ x 4′ to G.B. Pharmacy in 1971. The Learned first appeal court has observed that the plaintiff could have used the room measuring 8′ x 10′ on the ground floor as her drawing room before the same along with two other rooms were let out to the G.B. Pharmacy. He has further found that the said three rooms on the ground floor before these were let out to the G.B. Pharmacy had formed a compact unit for the dwelling house. As a result, the Learned first appeal court set aside the finding of the Learned Munsif that the plaintiff was not in possession of any reasonably suitable accommodation elsewhere except the suit premises and that he reasonably required the same to be used as her drawing room. Against this finding of the Learned first appeal court the plaintiff respondent has filed a cross-objection. It is urged before me by Shri Bajpayee, the Learned Advocate appearing for the plaintiff respondent that the first appeal court has erred in holding in disagreeing with the finding of the Learned Munsif that the ground floor room which was let out to G.B. Pharmacy could have been used by the plaintiff or his son as a drawing room, ft has been contended by Shri Bajpayee that the Learned first appeal court has misunderstood the evidence on record about the existence of any room of the size of 8′ x 10′ in the possession of the plaintiff which at least could be used as a drawing room before the same along with two other rooms was let out to the G.B. Pharmacy. According to Shri Bajpayee there was no existence of any such room of the measurement of 8′ x 10′ as noted by the
Learned first appeal Court Immediately after the close of his argument Shri Bajpayee filed an application for local inspection in respect of the existing rooms in the premises in the ground floor including a further report about the room and space which constituted the present room occupied by the G.B. Pharmacy. I have heard Shri Bajpayee and Shri Dasgupta on this application and I find no merit in the same. From the impugned judgment of the first appeal court it does not appear that the Learned Judge has misconstrued the evidence on record or his finding is not based on the evidence on record and is vitiated by any perverse conclusion. It does not appear that he has referred to the existence of a room of the size of 8′ x 10′ out of imagination. Shri Bajpayee has argued that the Learned first appeal court should not have set aside the finding of the Trial Court that the plaintiff reasonably requires the suit premises to be used as her drawing room and that she has no other suitably reasonable accommodation elsewhere except the same. Shri Bajpayee has further submitted that the Learned first appeal court should not have set aside the finding of the Trial Court that the room occupied by the G.B. Pharmacy could not be used by the plaintiff as her drawing room. Shri Bajpayee has relied upon a decision of the Supreme Court , Budhwanti v. Gulab Chand Prasad. It has been held there that it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong test or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in second appeal a patently erroneous finding in order to render justice to the party affected by such erroneous finding. There can be no dispute about the above legal principle settled by the Supreme Court but the question is whether there is any reason to apply the above principle in the present case. The Learned first appeal court has carefully considered the evidence on record adduced by both the parties and on due consideration of the same he has come to a finding that the plaintiff had let out three rooms of the respective size 4′ x 4′, 8′ x 10′ and
6′ x 4′ to the G.B. Pharmacy in 1971. The pleader Commissioner’s report as per Exhibit (I) shows that during the inspection commission found signs of alterations in the room so as to make it a compact block to be used by the G.B. Pharmacy as a shop room. The measurement of the room now in occupation of the G.B. Pharmacy is 20’6 1/2″ x 6’4″ this is quite a big room. There is no cogent reason why this room could not be used by the plaintiff as her drawing room. The finding of the Learned Munsif which has been set aside by the Learned first appeal court in this regard is rather obscure. The above finding of the first appeal court being purely a finding of fact, there is hardly any scope for this High Court to interfere with the same. There is nothing to show that above finding of first appeal court is vitiated by application of wrong test or the same based on conjectures and assumptions for which it should be set aside by this High Court following the above principle of the Surpeme Court relied upon by Shri Bajpayee. Shri Dasgupta while supporting the above finding of the first appeal court has referred to a decision of the Surpeme Court (Hasmat Rai v. Raghunath Prasad). In that case the Surpeme Court held that the finding of fact ignoring incontrovertible admitted position which would non-suit the plaintiff if upheld would be travesty of justice. In that case the tenant pointed out that the landlord during the pendency of the litigation had acquired possession of another premises in the building in question which would meet the landlord’s need. It has been held by the Supreme Court that the finding given by ignoring this admitted position would not be binding in appeal under Art. 136. Shri Dasgupta submits that in our case the admitted position is that the plaintiff landlord let out a portion of her premises to the G.B. Pharmacy during the pendency of the case and the Learned first appeal court has found that the plaintiff could have used that portion as her drawing room without letting it out to the G.B. Pharmacy. Shri Bajpayee has relied upon a decision of this High Court reported in (1956) 60 C. W.N. 783 (Sumatibala Sen v. Heramba Kumar Roy). In that case this court has found that the fact that the plaintiff has chosen to evict
some of the tenants to the exclusion of others or that the plaintiff has chosen not the contiguous rooms but two rooms separated by a tenanted room, does not also necessarily make any case against the plaintiff landlord’s plea of reasonble requirement. Shri Bajpayee submits that the plaintiff was quite within her right to ask for eviction of the defendant from the suit premises and she cannot be compelled to use the room let out to the G.B. Pharmacy. Against this Shri Dasgupta has referred to a decision of the Supreme Court (M. M. Quasim, v. Manohar Lal Sharma). It has been held there that the plea that landlord has unfettered right to re-enter premises of his choice is not maintainable. It has been observed by the Supreme Court that it would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. The Supreme Court has emphasised that this approach would put a premium on the landlord’s greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. In the present case there is no reasonable explanation why the plaintiff could not use the room let out to the G.B. Pharmacy during the pendency of the suit as her drawing room. Shri Daspugta has submitted that the finding of the first appeal court against the plaintiff’s reasonable requirement of the suit premises is a finding of fact and it is’not competent to the High Court interfered with the same by reappreciating the evidence. He has relied upon a decision of the Supreme Court (Phiroze Bamanji Desai v. Chandrakant M. Patel). It has been held there by the Supreme Court that if the lower court had applied a wrong test on a misconstruction of the word ‘requires’ the finding recorded by it would have been vitiated by the error of law. I have already noted there is nothing to show that the lower appellate court had applied any
such wrong test in the matter of appreciation of the evidence in reference to the reasonable requirement of the plaintiff.
8. In view of the above facts and circumstances and the materials on record and in the light of the legal principles as settled by our High Court and by the Supreme Court as discussed above I find no reason to interfere with the finding of fact made by the first appeal court regarding the plaintiffs reasonable requirement of the suit premises as her drawing room. The finding of the first appeal court that the plaintiff could have used the room now occupied by the G. B. Pharmacy as let out to it during the pendency of the suit as her drawing room is a purely finding of the fact and does not call for interterence in second appeal by this High Court. Furthermore, as I have already noted there is nothing to show that the said finding is based on any surmise conjecture or confusion or is vitiated by the application of wrong test for which the same deserves to be interfered with in second appeal as a question of law. There is no substance in the cross-objection which must be dismissed. As a result, the instant appeal in allowed and the judgment and decree appealed against be here by set aside along with the judgment and decree passed by the Trial Court. The O.S. suit No. 258 of 1966 of the court of the second Munsif, Berhampore be dismissed. The cross-objection filed on behalf of the plaintiff respondent also stands dismissed. There would be no order as to costs.
9. Appeal allowed.