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Hari Narayan Mondal & Others v/s M/s. Track India Pharma Div

    S.A. No. 43 of 2010

    Decided On, 06 March 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SAHIDULLAH MUNSHI

    For the Appellants: Arijit Roy, Balarko Sen, Abhijit Kumar Ghosh, Advocates. For the Respondent: -----



Judgment Text

Sahidullah Munshi, J.

This second appeal is at the instance of the plaintiffs against the judgment and decree dated 31st July, 2009, passed by the Chief Judge, City Civil Court at Calcutta, in Title Appeal No.81 of 2009, reversing the judgment and decree dated 23rd December, 2008, passed by the learned Judge, 5th Bench of the Presidency Small Causes Court at Calcutta, in Ejectment Suit No.891 of 2000.

According to the plaint case, the defendant was a tenant under the plaintiff and his tenancy was determined by concerned ejectment notice served by the plaintiff requesting the defendant to quit and vacate and hand over peaceful possession of the suit premises on the expiry of the last day of June, 1994. The ejectment sought for by the plaintiff was on the ground that-

1) The defendant was a habitual defaulter in payment of monthly rent;

2) The defendant was not using the suit premises for the purpose which it was let out;

3) The defendant made addition and alteration in the suit premises without previous consent of the plaintiff and

4) The suit premises was reasonably required by the plaintiffs and their family members.

Defendant entered appearance and filed written statement denying the plaintiffs' case. As many as 10 issues were framed by the trial Court including issue nos.4 and 5 which says -

"4. Does the plaintiff reasonably require the suit premises for use and occupation by herself and members of her family?"

"5. Is there any suitable alternative accommodation of the plaintiff other than the suit premises?

The First Appellate Court concurred with the decision of the trial Court on all other issues except the issue of reasonable requirement. The first Appellate Court reversed the finding of the trial Court on the issue of reasonable requirement holding that the trial Court decreed the suit on reasonable requirement only on the basis of the evidence of Subrata Mondal (PW-1). According to the first Appellate Court below, the trial Court proceeded and decreed the suit on the basis of the sole testimony of PW-1. According to the first Appellate Court below, when evidence of PW-1 transpired that family consists of wife and son and it was a four-storied building, whereas the PW-1 was in occupation of nine rooms already, unless other member

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s of the family corroborates the evidence of PW-1, the same cannot be relied on to fulfil the requirement of the plaintiff/landlord. Accordingly, the Appellate Court below held that the plaintiffs have failed to prove their reasonable requirement in respect of the suit premises in which eviction of the defendant was necessary. The first Appellate Court below set aside the decree for eviction passed by the trial Court.

This Second Appeal was admitted by an Order dated 2nd March, 2011 on the following substantial question of law -

i. "Whether the Appellate Court below substantially erred in law in reversing the decision of the trial Court in respect of the issue of reasonable requirement on account of non-examination of other plaintiffs to corroborate the evidence of the plaintiff's witness no.1, though, in fact, there were corroboration of the same by documentary evidence, i.e., Ext. 10 series the Ration Cards of the plaintiffs' family members and Ext. 12 (Commissioner's Report), the report of the learned Commissioner of local inspection showing the extent of the plaintiffs' accommodation in the suit premises?

ii. Whether the learned Judge in the lower Appellate Court substantially erred in law in not holding that there was not necessity to examine each and every plaintiff to prove the requirement of each of the family members?

iii. Whether the learned Judge in the lower Appellate Court substantially erred in law in holding that the plaintiff's witness no.1 was occupying nine rooms in the suit premises which were contrary to the evidence on record and on such erroneous view the learned Judge misdirected himself by reversing the decree of the trial Court?

Learned Counsel appearing for the appellant submitted that the judgment and decree passed by the first Appellate Court below cannot be sustained on the ground that there was no need for other family members or individual plaintiffs to prove their respective requirement in the suit premises. He submitted that the learned first Appellate Court below has made a substantial error of law in passing the judgment and decree reversing the decree passed by the trial Court on the issue of 'reasonable requirement' where the defendant has not specifically denied in his written statement about the requirement of the daughters. Therefore, when such requirement of the daughters has been admitted by the defendant in its written statement, the Appellate Court below cannot hold that all the plaintiffs or other family members should have deposed individually before the Court to prove their requirement or that the evidence of PW-1 ought to have been corroborated by leading evidence through other family members for the purpose of corroboration of the evidence of PW-1. The learned Counsel has pointed out before this Court that the trial Court clearly considered the requirement of the plaintiff for the suit premises and not only such requirement has been proved by the PW-1, trial Court has also satisfied itself from the plaint case and the evidence in support thereof that the plaintiffs have no other reasonable suitable accommodation other than the suit premises. Learned Counsel pointed out that the trial Court duly considered Exhibit 10 series which proves that the family of the plaintiffs consists of Hari Narayan Mondal, Gouri Shankar Mondal and his wife Radha Rani Mondal, Subrata Mondal and his wife Anandamoyee Mondal, granddaughters Pew Mondal and Puja Mondal and grandson Arya Mondal.

According to the learned Counsel for the appellant, number of family members of the plaintiff has been proved by him. According to the trial Court, it is also proved that the plaintiff no.1 has one daughter, Namita Roy who has two sons. The original plaintiff stated in the plaint that the plaintiff was and/or is in occupation of eight rooms in the whole premises. She stated that out of eight rooms, one room is of tin shed and the other is of tile shed and another is a "chillakotha" that is a very small room at the end of the staircase. The trial Court also considered Exhibit 12 (Commissioner's Report) that the entire premise is a 4-storied building. Learned Advocate Commissioner stated that on the third floor there are two rooms, on the second floor there are three rooms, one bath with attached privy, one verandah and terrace, on the first floor there are three rooms, one bath with attached privy, a small space attached with staircase and verandah. On the ground floor there are altogether three tenants. The defendant holds two rooms and the other two tenants are using the room on the roadside by taking their respective tenancies with a wooden Chowki. In the middle of that room there is also a verandah behind the back of the defendant's room. There is also another small room and by each side there is pump room on the ground floor. So, from the Commissioner's report, it is clear that the plaintiff is in occupation of two rooms on the third floor, three rooms on the second floor, three rooms on the first floor and one room in the ground floor. Therefore, the plaintiffs are in occupation of altogether nine rooms.

On the basis of evidence the trial Court also held that it was further proved from Exhibit 12 that one room on the third floor is covered with bamboo frame with tin shed, the second room in the third floor is a small room measuring 10 ft. 6 inch X 4 ft. 11 inch. Commission report revealed that the room no.1 in the third floor is used as storeroom as unused articles were kept there and in room no.2 there is a wooden chowki. However, the said room cannot be used for living because the room being only 4 ft. wide cannot be used as bedroom. On the basis of the unchallenged testimony of PW-1, trial Court held that the said room is used as puja room. In cross-examination, the PW-1 admitted that they are in occupation of nine rooms at the suit premises. Therefore, trial Court held that it was proved from Exhibit 12 that the plaintiffs are in occupation of nine rooms in the suit building. These details in the judgment of the trial Court have not been considered by the learned first Appellate Court below. The order of reversal has been made only on the ground that the testimony of PW-1 was not corroborated by other family members. No cross-appeal has been filed by the defendant before this Court. The proof which has already been made by the plaintiff and the finding arrived at by the trial Court with regard to the requirement of the plaintiff, has not been disturbed by the appellate Court below save and except the point of corroboration. Learned Counsel in support of his submission has relied on the following decisions:

* Pandurang Jivaji Apte -Vs. - Ranchandra Gangadhar Ashtekar (dead) by Lrs. and Ors. reported in (1981) 4 SCC 569;

* Gulraj Singh Grewal -Vs. - Dr. Harbans Singh and Anr. reported in (1993) 2 SCC 68;

* Santosh Hazari -Vs. - Purushottam Tiwari (deceased) by Lrs. reported in (2001) 3 SCC 179 and

* Mehmooda Gulshan -Vs. - Javaid Hussain Mangloo reported in (2017) 5 SCC 683.

Decision in Pandurang Jivaji Apte (supra) has been relied on by the learned Counsel for the appellant to submit that when a fact has been admitted no further evidence is required for the proof. This is a settled principle of law that admission is the best evidence. Therefore, there is no controversy with regard to the same.

The decision in Gulraj Singh Grewal (supra) has been relied on to show that even one of the plaintiffs can prove the requirement of the other plaintiffs. In the given decision respondent no.1 who was the father of the respondent no.2 supported and proved the need of the respondent no.2 who was the landlord. Therefore, this decision is on the point in issue whether the plaintiff no.1's evidence was sufficient to prove the requirement of the suit premises for himself and also for other plaintiffs.

The decision in Santosh Hazari (supra) has been placed to argue that the responsibility of a first Appellate Court cannot be shortened within the technical flaws. According to the Hon'ble Apex Court, while writing a judgment of reversal, the Appellate Court must remain conscious of two principles firstly, the finding of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court, more so, when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. Secondly, while reversing a finding of fact, the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. Paragraph 15 of the said decision is important to take note of and is set out hereinbelow:

"15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it.

While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."

The decision in Mehmooda Gulshan (supra) has been cited on the specific point that non-examination of the member of the family who intended to do business in the premises cannot non-suit the landlady when she otherwise established a genuine need. The issue in the said decision whether non- examination of the family member (son of the landlady) who intended to do business could be taken as a ground for repealing the reasonable requirement of the landlord and whether the requirement of the landlord for his own occupation would also mean occupation by a member of the family if he is the son. The Hon'ble Apex Court in paragraphs 12 and 13 of the said decision held :

"12. We fail to understand the approach made by the High Court. It has clearly come in evidence of the appellant that her one son is unemployed and in view of unemployment, he was frustrated. The appellant's husband had contracted second marriage and he had deserted the appellant. The appellant herself was unemployed with no source of income. The appellant, hence, prayed that the property be returned to her so that her son can look after the family. In cross-examination, she denied the suggestion that the son was doing business with his father. It had also been stated further that "except the premises and the residential house, the plaintiff has no other property". The trial court has meticulously analyzed and appreciated the reasonable requirement of the premises for the business to be managed by the son of the appellant especially in her peculiar family circumstances. In our view, trial court has appreciated the evidence in the right perspective and held that it is not mere desire but genuine need. The finding of the trial court was challenged mainly on the ground that the son, for whose benefit the eviction is sought, has not been examined.

13. Mere non-examination of the family member who intends to do the business cannot be taken as a ground for repelling the reasonable requirement of the landlord. Under the Act, the landlord needs to establish only a reasonable requirement. No doubt, it is not a simple desire. It must be a genuine need. Whether the requirement is based on a desire or need, will depend on the facts of each case."

In the present case, the trial Court has clearly and meticulously arrived at a finding that the suit premises was required by the plaintiffs and in order to prove such requirement only the plaintiff no.1 came to the witness box. He proved the requirement not only for himself but for other members of the family. The need for the premises is a common need for the plaintiffs. Although, such common need for and on behalf of the plaintiffs has been proved by the plaintiff no.1 in the box the Appellate Court below, while reversing the judgment and decree passed by the trial Court, has not discussed anything about the finding of the trial Court as to whether the trial Court committed any error of law in holding that the plaintiffs were able to prove their reasonable requirement and further that the landlord had no other alternative accommodation. The Appellate Court below simply held that the requirement could not be proved on behalf of the others and further that in order to prove such requirement corroboration of PW-1 was necessary. In my view, this stand is contrary to the ratio of the judgment of the Hon'ble Apex Court in the case of Santosh Hazari (supra) where the Hon'ble Apex Court held that the first Appellate Court cannot just set aside the judgment and decree on any technical ground without giving its detailed observation dealing with the evidence dealt with by the trial Court and without furnishing reason as to why the decree passed on evidence discussed by the trial Court, is erroneous. In giving answer to the first and second substantial questions of law, I hold that the learned Appellate Court below has committed grave error in failing to discharge its duty as a first Appellate Court. As held by the Hon'ble Apex Court the judgment of the Appellate Court must reflect its conscious application of mind and record of findings supported by reasons, on the issue in question. In my view, the Appellate Court in the present case, with a non-application of mind, has discarded the sincere act of the trial Court by showing a technical ground that the evidence of PW-1 was not corroborated. The trial Court discussed not only the evidence of PW-1 in support of its final decision to decree the suit, but also discussed the scope of Exhibits 10 and 12 and the evidentiary value thereof. It is settled law that the duty of a first Appellate Court is broader in sense and it has to deal with both fact and law and in fact, it is the last Court of fact. Therefore, without reappraisal of the evidence on record reversal to the decree and finding of the trial Court is to be considered failure of judicial duty of the first Appellate Court. There is no doubt that the first Appellate Court has also got the authority and jurisdiction to reverse or affirm the findings of the trial Court but by giving a proper decision and not in a cryptic manner as has been done in the present case. In my view, the first Appellate Court ought to have understood that the first appeal is a valuable right of the parties and unless otherwise restricted by law, the entire case is open for re-hearing before it both on the questions of law and fact. The first Appellate Court should be more careful particularly when it is reversing a judgment and in doing so, in my view, the first Appellate Court ought to have assigned proper reasons after considering thoroughly the evidence and other materials on record. Having not done so, the judgment and decree passed by the first Appellate Court should not be sustained. The learned Appellate Court below also did not examine the findings arrived at by the trial Court as has been pointed out in the third substantial question of law - "Whether the plaintiff was in reality occupying nine rooms." Although, from the evidence of the Pleader Commissioner (Ext. 12) it was proved that there are other portions which were not usable at all, this part has also been overlooked by the first Appellate Court when the trial Court meticulously dealt with the issue and gave its finding. In my view, the learned first Appellate Court below is completely wrong in holding that the PW-1's evidence was not sufficient to prove the requirement of the landlord for self and on behalf of the others. The logic cannot be supported not only because it is contrary to the judgment of Hon'ble Supreme Court in Mehmooda Gulshan (supra) but at the same time, if we apply our common sense, we may get the reply. If some of the plaintiffs stay abroad then they are to be brought to the Court only for the purpose of giving evidence when Civil Procedure Code authorises to hold evidence even on commission and there is no doubt that law permits the parties to authorise one to depose on their behalf. These disputes having not been raised during cross- examination by the defendant, it was not proper for the Appellate Court below to come to such a finding. Even those apart, the Appellate Court's judgment is erroneous in view of the fact that the daughter's requirement has never been denied by the defendant and at least some of the plaintiffs' requirement was not necessary to be proved in such background the finding of the first Appellate Court cannot be held to be justified in reversing the judgment of the trial Court. Therefore, I am of the view that the judgment and decree passed by the learned first Appellate Court below is liable to be set aside and I, accordingly, set aside the judgment and decree dated 31.07.2009 passed by the learned first Appellate Court below and restore the judgment and decree dated 23.12.2008 passed by the learned trial Court.

Appeal is allowed. However, in the facts and circumstances of the case, there will be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities
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