Holding

The flat on the 13th floor in South Calcutta was not reasonably suitable; therefore, the landlord’s genuine requirement was not satisfied by the alternative accommodation and the eviction decree stands.

Summary

Dr. Saroj Kumar Das, a medical practitioner residing in Ghana, sued tenant Arjun Prasad Jogani for possession of the second‑floor rear portion of 248 C.I.T. Road, Calcutta, claiming a genuine requirement for personal use and no alternative accommodation. The trial court and the Additional District Judge granted eviction under the West Bengal Premises Tenancy Act, 1956. While the appeal was pending, the landlord acquired a flat on the 13th floor in South Calcutta and the tenant sought to set aside the decree, arguing that the new flat satisfied the landlord’s requirement. The Calcutta High Court allowed amendment, admitted fresh evidence, and held that the flat constituted suitable alternative accommodation, thereby vacating the eviction decree. On special leave, the Supreme Court examined whether the flat was reasonably suitable and held that, given the landlord’s age, practice location, and his own statement that the flat was not suitable, it could not be deemed a reasonable alternative. Consequently, the Court set aside the High Court’s order and reinstated the eviction decree, subject to a stay on execution until 31 March 1988 upon compliance by the tenant.

Issues considered

Whether the acquisition of a flat on the 13th floor in South Calcutta constitutes a reasonably suitable alternative accommodation that defeats the landlord’s genuine requirement for possession under the West Bengal Premises Tenancy Act, 1956.

Legislation cited

West Bengal Premises Tenancy Act, 1956

Subjects

landlord-tenantevictionreasonable requirementalternative accommodationgenuine requirementWest Bengal Premises Tenancy Actsuitability

Judgment

DR. SAROJ KUMAR DAS
A
v.
ARJUN PRASAD JOGANI

/ SEPTEMBER 1, 1987
1
B (SABYASACHI MUKHARJI AND G.L. OZA, JJ.]

West Bengal Premises Tenancy Act, 1956-Landlord-tenant ~
dispute under-Eviction of tenant sought on reasonable requirement of

c
landlord for his personal use and occupation in the absence of any other
reasonably suitable accommodation.

The appellant-landlord, a medical practitioner, flied a suit for
recovery of possession of the 2nd floor. rear portion of premises, 248,
~
-
C.I.T. Road, Calcutta, let out to the respondent-defendant, on the
ground of the reasonable requirement of the landlord for his own occu-
pation as be bad no other reasonably suitable accommodation in the
D town. The appellant contended that be bad been residing in Ghana, ~
Africa, where he had been temporarily appointed as a Physician, and he
wanted to come back to India after retirement and settle down in medi-
cal practice in the locality where his house was situated.

The trial court granted the decree for eviction in accordance with
E the West Bengal Premises Tenancy Act, 1956. The first appellate
court-the Court of the Additional District Judge-maintained the
decree in favour of the appellant by its judgment dated September 29,
1978.
ll

r
-
During the pendency of this litigation, the appellant had entered
F into an agreement with some construction company for a flat in South
Calcutta, and got the flat in October, 1978. This flat was on the 13th
floor in South Calcutta, a posh locality.

The respondent-tenant preferred a second appeal before the High
Court against the judgment of the first appellate court. During the
G pendency of this appeal, the respondent-tenant submitted an applica- ~
lion for consideration of the subsequent events, i.e. the acquisition of a
flat by the landlord suggesting that the need of the appellant-landlord
had been satisfied, etc. The High Court permitted this application for
amendment and permitted the parties to lead additional evidence, and
in consequence, the appellant-landlord also was examined once again.
H On consideration of the evidence, the High Court came to the conclu·

1164
S.K. DAS '· A.P. JOGANI 1165

sion that now as alternative accommodation-The nat in Sooth A
Calcutta--was available, and, therefore, it set aside the decree of evic-
tion. Aggrieved by the decision of the High Court, the appellant-
landlord appealed to this Court for relief by special leave.

.,.. Allowing the appeal, the Court,
B
HELD: It is well-settled that the alternative accommodation must
)- be reasonably suitable and if it is not so, then, the mere availability of

-
the alternative accommodation will not be a ground to refuse a decree
for eviction, if otherwise, the courts are satisfied about the genuine
requirement of the landlord, and to this, counsel for both the parties
also agreed, but the main contention was whether on the facts appear- c
-{ ing in evidence in the case, the inference could be drawn that the flat on
the 13th floor in South Calcutta was reasonably suitable to satisfy the
need of the appellant landlord. Counsel for the appellant had contended
inter alia that for the appellant, who bad lived and practised (as a
doctor) in the suit premises in the C.I. T. Road, it was not possible at
that stage in life to start practice in South Calcutta on the 13th floor. D
~
Counsel for the parties conceded that from C.I.T. Road where the
premises in question were situated, the place where the flat was situated
in South Calcutta, would be a distant place. As regards evidence it was
no doubt true that after these facts were pleaded in the statement of the
appellant, the only statement in regard to suitability was "the flat is not
suitable for my purpose." Counsel for the respondent emphasised that E
ii
the above-quoted statement was the only statement made by the appel·
"' lant in the additional evidence. It was no doubt true that this was the
.
only statement made by the appellant when he was examined afresh
1 after these facts were brought in the pleading by way of additional
evidence, but it could not be doubted that whatever was in evidence
earlier could not be brushed aside and it was also clear that on the basis F
of evidence recorded earlier, the two courts of facts came to the conclu-
sion that the appellant-plaintiff bad established bis genuine require·
ment. On the basis of the facts, the genuine requirement of the
appellant-plaintiff was held to have been proved and the High Court
also bad accepted this concurrent finding of fact. The only consider&·
t: lion which weighed with the High Court was the acquisition of the flat G
on the 13th floor in South Calcutta. (1170A·G]

It could not be disputed that if a medical practitioner is an old
resident of a particular locality and had practised in that locality, it
would not be easy for bim at a stage in life after retirement to start
practice afresh in some new area and that too on 13th floor in a modem H
1166 SUPREME COURT REPORTS [ 1987] 3 S.C.R.
....._
flat. There was nothing in the evidence on the basis of which it could be
A
said that the flat in South Calcutta was reasonably suitable for the
appellant. In the context of the facts and circumstances of the case, it
could not be held that the flat in South Calcutta on the 13th floor could
be said to be a reasonably suitable accommodation for the requirement
of the appellant-lan11lord. [1170H; 1171A·C]
i
B
The High Court was not justified in the second appeal to interfere
with the finding of fact unless there were facts established to hold that {
alternative accommodation acquired after the decree of eviction in

c
favour of the appellant was reasonably suitable. The High Court
omitted to consider the positive evidence and a positive statement, not
challenged, that this flat (in South Calcutta) was uot suitable for the
purpose of the appellant-landlord. [1172B·C]

Judgment of the High Court was set aside. Decree of eviction
~
-
passed by the two courts below was maintained. The court directed in
the circumstances of the case that the decree for eviction would not be
D executed against the respondent upto 31.3.88 on the respondent's filing
an undertaking in the usual form and also paying the rents and mesne
profits upto date within four weeks, and that if the respondent failed to
•
deliver possession on or before 31.3.88, the appellant would be entitled
to execute the decree for eviction. [1172D·E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8295
E ~
of 1983. ,-
From the Judgment and Order dated 29. 7. 1982 of the Calcutta
High Court in Appellate Decree No. 385 of 1979. r
F
D .N. Mukherjee and N.R. Choudhary for the Appellant.

Dr. Shankar Ghosh, P,R. Seetharaman and M.T. George for the
Respondent.

The Judgment of the Court was delivered by
G ~
OZA, J. This is an appeal preferred by the appellant after get-
ting leave from this court against the judgment and decree passed by
the High Court of Calcutta wherein the High Court allowed the appeal
of the respondent-tenant and set aside the decree for eviction granted
by the courts below in favour of the appellant.
H
The appellant-landlord filed a suit for recovery of possession of
S.K. DAS v. A.P. JOGANI [OZA, J.) 1167

the 2nd floor rear portion of the premises 248, C.I.T. Road, Calcutta A
which was let out to the respondent defendant as a monthly tenant on
the ground that the landlord reasonably required the suit premises for
his own occupation and had no other reasona~ly suitable accommoda-
tion in the town. The decree was also sought on other grounds which is
"not relevant for the purposes of this appeal.
B
Both the courts the Trial Court and the First Appellate Court
} found that the suit premises were reasonably required for the personal
use and occupation of the appellant-landlord and his family which
consisted of his wife one son one daugther and therefore the decree
was granted in accordance with West Bengal Premises Tenancy Act,
1956.
c
What was urged by the appellant plaintiff in support of genuine
requirement was that he is a Medical practitioner and was appointed as
a Physician in Ghana (Africa in 1964) where he has been residing
temporarily. In Ghana after some time his family could not stay and
-1 his wife and children have come back and are residing in Calcutta. His D
service in Ghana was terminable by giving a notice of 3 months and the
plaintiff landlord desires to come back to India and settle down in
medical practice in this locality where the house is situated. It was also
alleged in the plaint that he could not come back as the accommoda-
tion was not available, and that after taking retirement from Ghana
, cJ they will settle down in Calcutta in this house in dispute. The require- E
_......_ ment of the family also was alleged on the ground that the son and the
daugther of the appellant have also grown and they also need rooms
for their use. It was also alleged that apart from the residential portion
,,. he also needs one room for his medical practice.

The trial court and the first Appellate Court accepting this con- F·
tention of the plaintiff appellant granted decree for eviction.

It appears that during the pendency of this litigation the present
appellant also had entered into an agreement with some construction
.company for a flat in South Calcutta and ultimately in October 1978 he
'f'got possession of that flat. The First Appellate Court i.e. the Court of G
Additional District Judge maintained the decree in favour of the
appellant by its judgment dated 29th September 1978 and against this
judgment the respondent tenant preferred a second appeal before the
High Court. During the pendency of this appeal in the High Court
the respondent tenant submitted an application for considera-
tion of subsequent events i.e. the acquisition of the flat in South H
1168 SUPREME COURT REPORTS (1987] 3 S.C.R.

A Calcutta suggesting that the need of the appellant landlord has been
satisfied and therefore the decree of eviction should be set aside.
The High Court permitted this application for amendment and
permitted parties to lead additional evidence and in consequence
the appellant landlord also was examined once again and it is
B not disputed that apart from his statement which was recorded earlier i
additional evidence was recorded and it is on this evidence that the
High Court came to the conclusion that as now alternative accommo-
dation i.e. a flat in South Calcutta which was acquired in 1978 is J
available the decree of eviction was set aside and it is against this
judgment of the High Court that the present appeal has been
preferred.
c
Learned counsel appearing for the appellant contended that ~
while in service in Ghana since 1975 the appellant wanted to come
back but could not because the premises were not available and there-
fore the suit was filed. During this period out of some savings from the
earnings that the appellant made in Ghana, he booked a flat and
D ultimately a flat was practically ready in 1978. It was contended that ~
after the judgment of the power Appellate Court where the decree was
confirmed t.he appellant felt secured that he will now get the premises
in suit where he wanted to settle down in practice and where in fact in
part of the premises his family was staying and as the appellant had no
sufficient funds he let out this flat in South Calcutta and it is the tenant
E who invested some money and got it completed. According to learned \
counsel the alternative accommodation should be reasonably suitable
and available and it is only then it could be said that as the. alternative
accommodation which is reasonably suitable is available that the
decree for eviction could be refused when the two courts the court of y
facts have found it in favour of the appellant that he required the
F premises in question for his bona fide use.

Learned counsel contended that admittedly the flat which was
allotted was a flat on the 13th floor in South Calcutta which is a posh
locality. For the appellant who is a M.B.B.S. and who had been living
and practising in C.J.T. Road in the suit premises for him at this stage._
G in life it was not possible to start practice in South Calcutta on 13th ~
floor. It was also contended that the wife of the appellant is also
working as a teacher in one of the schools in the locality and it would
not be convenient and possible for her to live in South Calcutta and
come to this area for discharge of her duties. According to learned
counsel although the flat was acquired but it was not at all suitable and
H therefore the High Court was not right on this basis to interfere with
S.K. DAS v. A.P. JOGANI (OZA, J.] 1169

the concurrent findings of facts arrived at by the courts below. A
Learned counsel by reference to certain decisions of this court
contended that mere fact that the landlord had purchased or acquired
an accommodation is not sufficient to negative the genunine require·
ments but it has further to be found that the premises so acquired are
reasonably convenient and in this regard it was contended that the
learned Judge of the High Court omitted to consider these circum- B
stances. It was also contended that the learned Judge omitted to consi·
der the positive evidence and drove inference from the fact that the
flat was acquired on the basis of agreement that it is being acquired for
residential purposes and further averment made to indicate that the
appellant landlord intended to start some laboratory in the flat in
South Calcutta. c
{
Learned counsel for the respondent contended that after the
additional facts came to the knowledge of the respondent tenant it was
pleaded an additional evidence produced. The respondent produced
evidence that in fact all other purchasers of the flats got possession of
the flats in 1977 whereas the present appellant got it in October 1978 D
when the judgment in lower appellate court was pronounced on 29th
September 1978. It was contended that the present appellant delayed
taking of possession just to wait till the decree for eviction was
affirmed by the Appellate Court. He further contended that there is no
evidence to indicate that this alternative accommodation acquired is
E
\.I not reasonably suitable. According to the learned counsel South
Calcutta where this flat is situated is one of the posh localities of
Calcutta and after having acquired a flat almost of the same area which
is in possession of the respondent in the suit premises, the High Court
was right in coming to the conclusion that the alternative accommoda·
ti on satisfies the need of the landlmd appellant.
F
Learned counsel further contended that the fact that the appel·
!ant's wife is in service and for her it will not be convenient if they stay
in South Calcutta and the fact that for practice of the appellant it will
not be convenient are facts which have not been stated by the appel·
!ant. When after the amendment fresh evidence was recorded and the
appellant was given an opportunity and he in fact examined himself G
and gave additional evidence but only fact that he stated in the addi·
tional evidence is that the flat is not suitable for his purpose. It was
therefore contended that the High Court was right in coming to the
conclusion that the need of the appellant landlord is satisfied. Learned
counsel also referred to some decisions for their above stated·
preposition. H
1170 SUPREME COURT REPORTS [1987) 3 S.C.R.

A So far as the law on the question is concerned it is well settled
that the alternative accommodation must be reasonably suitable and if
it is not so then more availability of alternative accommodation will
not be a ground to refuse a decree for eviction if otherwise the courts
are satisfied about the genuine requirement of the landlord and to this
counsel for both the parties also agreed but the main contention was
B that on the facts appearing in evidence in this case whether the infer-
ence could be drawn that the flat on the 13th floor in Sonth Calcutta
was reasonably suitable to satisfy the need of the appellant landlord.
As regards evidence it is no doubt true that after these facts were
pleaded in the statement of the appellant the only statement in regard
to suitability is that "the flat is not suitable for my purpose". It is not
c disputed that this is a flat on the 13th floor in South Calcutta and
learned counsel for parties conceded that from C. I. T. Road where
premises in question are situated this place where the flat is situated in
South Calcutta will be a distant place.

Although learned counsel for the respondent emphasised that
D the above quoted statement is the only statement made by the appel-
lant in additional evidence. It is true that this is the only state-
ment when be was examined afresh after these facts were brought
in the pleading by way of additional evidence. But it could not be
doubted that whatever was in evidence earlier could not be brushed
aside and it is also clear that on the basis of evidence which was
E recorded earlier the 2 courts of facts came to the conclusion that
plaintiff has established his genuine requirement.

Before these facts were introduced by amendment it was clearly
stated that the appellant wanted to start his practice after taking retire- )
ment from his service in Ghana. It was also stated that he intended to
F start private practice as a medical practitioner in Calcutta. It is also
clear that before going to Ghana the appellant was living in the said
premises and was practising. It had also come in evidence that his wife
was also serving in some nearby institution. On this basis his genuine
requirement was held to have been proved and the learned Judge of
the High Court also accepted this concurrent finding of fact. The only ....
G consideration which weighed with the High Court was the acquisition
of this flat on the 13th floor in South Calcutta.

It could not be disputed that if the medical practitioner is an old
resident of a particular locality and had practised in that locality it will
not be easy for him at a stage in life after retirement to start afresh
H practice in some new area and that too on 13th floor in a modern flat.
S.K. DAS v. A.P. JOGANI [OZA, J.] 1171

What has weighed with the learned Judge of the High Court was the A
statement made by the appellant that he intended to start a laboratory
after retirement in the flat which he acquired and the other fact which
weighed was the agreement which stated that ihe flat was required for
residence. Apparently not much could be drawn from these facts as
~ starting a laboratory admittedly is much different from starting private B
practice as the medical practitioner and signing an agreement which
llllli.
talks of residence is nothing but a mere formality if he at alt intended
~ to acquire a flat.

It is clear that there is nothing else in the evidence on the basis of
~ which it could be said that this flat is reasonably suitable. Learned
counsel for the respondent contended that the appellant said nothing C
{ else except the statement that this flat is not suitable for his purpose
but it is very significant that this statement made by the appellant when
he was examined additionally after the pleadings were amended. This
statement is not challenged by way of cross-examination at all and it
clearly states that for the purpose for which the appellant needs the
~ premises and he sought eviction this flat is not at all suitable for that D
purpose which also is apparent from the situation and the circumst-
ances discussed above.

Both the learned counsel emphasised the date of the judgment of
. the Lower Appellate Court and the date of acquisition of the flat as it
.:J
is apparent that the judgment of the Lower Appellate Court was E
c delivered on 29th September, 1978 and the possession of the flat was
given on 5th October, 1978. On the one hand the counsel for the
appellant contended that the Appellate Court having affirmed the
i decree of eviction the appellant knew that now there is no problem and
this additional flat which he acquired out of the savings of his service in
Ghana he could utilise to have some earning which may help the family F
at this stage in life and therefore he let it out so that he may earn
something out of it whereas learned counsel for the respondent con-
tended that alt others got the possession of the flat in 1977 but this
appellant waited till he secured a decree of eviction affirmed by the
Appellate Court and it is only then that he took possession of the flat
~so that a reasonable explanation is possible for having let it out G
because the decree for _eviction was already passed. The circumstances
discussed above and the suitability and the requirement of the appel-
lant the age and nature of practice possible for a retired doctor
with only an MBBS degree establish that the premises in question are
suitable and so far as this is concerned there is no dispute but in the
context of the facts and circumstances discussed above it could not be H
1172 SUPREME COURT REPORTS (1987] 3 S.C.R. ~

A held that flat in South Calcutta on 13th floor could be said to be a
reasonably suitable accommodation for the requirement of the appel-
lant landlord and in the context of these facts and circumstances not
much could be made out from the two dates i.e. the judgment of the
Lower Appellate Court and the date on which the appellant got
possession of the flat. i
8
It is therefore clear that the learned Judge of the High Court was . . . . .
not justified in seCOQd appeal under Sec. 100 to interfere with the . . .
finding of fact unless there were facts established to hold that this
alternative accommodation acquired after the decree of eviction in
favour of the appellant was reasonably suitable. ,,,..
c
Learned Judge of the High Court only drew inference from the )
fact that the appellant wanted to start a laboratory and the fact that he
signed the agreement for acquiring the flat which was meant for resi-
dence and in drawing inferences from these two facts, the learned Judge
omitted to consider the positive evidence and a positive statement not
D challenged that this flat was not suitable for the purpose of the appel- ~
!ant landlord. The judgment of the High Court can not be maintained.
The appeal is therefore allowed. The judgment of the High Court is set
aside and the decree of eviction passed by the two courts below is
maintained. In the circumstances of the case the decree for eviction
shall not be executed against the respondent upto 31.3.88 on respon- { _
E dent filing an undertaking in the usual form and also paying rents and "'-
mesns profits upto date within four weeks. If respondent fails to
deliver possession on or before 3 1.3.88 the appellant shall be entitled to
execute the decree for eviction. In the circumstances of the case no
order as to costs.

S.L. Appeal allowed.