Tarundeep Singh Chawla v. Avtar Baath

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT : THE HON'BLE JUSTICE BISWAJIT BASU SA/6/2024 I.A. No. CAN/1/2023, CAN/2/2024, CAN/3/2024 TARUNDEEP SINGH CHAWLA ... APPELLANT VS.

AVTAR BAATH ... RESPONDENT For the appellant : Ms. Anjili Nag, Sr. Advocate Mr. D.K. Bawali For the respondent : Mr. Arul Prasanth Hearing concluded on : September 03, 2025 Judgment delivered on : September 08, 2025 BISWAJIT BASU, J.

1.

The instant second appeal is at the instance of the plaintiff in a suit for eviction and is directed against the appellate decree dated March 24, 2021 passed by the learned District Judge, A & N Islands at Port Blair in Other Appeal No. 16 of 2019 thereby affirming the judgment dated August 30, 2019 and decree dated September 16, 2019 passed by the learned Civil Judge (Senior Division), South Andaman, Port Blair in Other Suit No. 30 of 2013. 2.

The plaintiff had inducted the defendant as a tenant in respect of the first floor of the House No. 20 at Sahajeevan Housing Cooperative Society, Haddo, Port Blair (hereinafter referred to as the

suit property, in short). The plaintiff filed the aforementioned suit for eviction of the defendant from the suit premises on the ground that he requires the suit premises for his own requirement and for the requirement of his family members, as envisaged under regulation 13(1)(c)(i) of the Andaman and Nicobar Islands Rent Control Regulation, 1964 (hereinafter referred to as the said Regulation of 1964, in short). The learned Trial Judge had dismissed the said suit holding that the plaintiff has failed to prove of ground of bonafide requirement which the appeal Court below by the impugned judgment and decree has affirmed.

3.

The Plaint Case (i) The plaintiff is the recorded owner of the two storied building at House No. 20 at Sahajeevan Housing Cooperative Society, Haddo, Port Blair (hereinafter referred to as the suit premises, in short). The plaintiff on December 01, 2000 had inducted the defendant as tenant in respect of the suit property on a monthly rent of Rs. 5,000/- payable according to English calendar month, the rate of rent was subsequently increased to Rs. 7,500/- per month.

(ii) The sons of the plaintiff are the students, they are facing difficulties in pursuing their studies at the ground floor as there is dearth of accommodation. The mother of the plaintiff is residing in a different place which does not have enough space

to accommodate all the family members of the plaintiff besides the mother wants to stay with the plaintiff as due to her age she requires constant care of the plaintiff as such to accommodate her the suit property is required. The plaintiff to meet the said requirements would carry out addition and alteration in both the floors of the suit premises. 4.

The defence in the written statement (i) The defendant had contested the suit alleging that the plaintiff has six houses, all are given in rent and one three storied RCC building is under construction at Biggiline, Port Blair. The sole intention of the plaintiff is to evict the defendant illegally and to induct a new tenant with higher rate of rent. The mother never resided with the plaintiff, she has a house wherein she is residing independently. The two children of the plaintiff are studying in the mainland, they occasionally visit the Port Blair during the summer vacation of their schools and stays for a brief period of one or two months. 5.

The second appeal was admitted under Order 41 Rule 11 of the Code of Civil Procedure to answer four substantial questions of law, in support thereof Ms. Anjili Nag, learned senior advocate argues as follows:- (i) The defendant in his cross-examination has admitted that the specification of the ground floor is identical with that

of the first floor i.e. suit property and has also described the specification of the suit property in detail. The learned Trial Judge has erroneously come to a finding that unless the court gets a clear picture about the extent of accommodation of the plaintiff within the suit premises, it will never be possible for the Court to come to a definite conclusion as to whether the available accommodation is sufficient or insufficient. The appeal Court below has committed substantial error of law in affirming the said finding of the learned Trial Judge by holding that admission of the DW-1 during cross-examination that interior design of the ground floor and the first floor are almost identical cannot help the plaintiff to make out a prima facie, case of bonafide requirement.

(ii) The decision of the Hon'ble Supreme Court in the case of Sarla Ahuja vs. United India Insurance Company Ltd. reported in (1998) 8 SCC 119 is cited to contend that the Courts below should not proceed on a presumption that the requirement of the landlord is not bonafide and it is not for the tenant to dictate the terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. Another decision of the Hon'ble Supreme Court in the case of S.R. Babu vs. T.K. Vasudevan and others reported in (2001) 8 SCC 110 is cited on the same proposition of law.

(iii) The allegation of the defendant that the plaintiff has alternative accommodation which can be utilized to accommodate the entire family suggests that he is admitting the requirement of the plaintiff for his two sons besides the defendant has also admitted in cross-examination that he agreed to vacate the premises on the request of the plaintiff after two months. The decision of the Hon'ble Supreme Court in the case of Kailash Chand and another vs. Dharam Dass reported in (2005) 5 SCC 375 is cited to contend that the requirement of the family members is the requirement of the landlord for his own use and occupation.

(iv) The defendant is now taking the plea that bonafied requirement of the plaintiff ceases to exist as his sons are studying in the mainland but he is forgetting that the sons are not permanently settled in the mainland, they have gone only for their studies and would return to the Port Blair to stay with the plaintiff and their mother at least 6-7 times in a year and to accommodate them the suit property is required. (v) The availability of the alternative accommodation is not a bar to get a decree of eviction under Regulation 13(1)(c)(i) of the said Regulation of 1964, nonetheless the defendant has failed to prove that the plaintiff has such alternative accommodation. The defendant has miserably failed to prove that the plaintiff is the owner of six residential houses at Port Blair. The alleged

building sanctioned plan, the exhibit-B cannot cast a cloud of doubt on the bonafide requirement of the plaintiff for the suit property.

(vi) In the schedule appended to the plaint, the suit property has been described with minute precision, as such the approach of the both the Courts below that there is ambiguity in the description of the suit property is completely erroneous. The plaintiff at paragraph 5 of the plaint has described the manner in which the plaintiff wants to alter the suit property to accommodate the requirement of his two sons. The plaintiff in his examination-in-chief has detailed his requirements. The defendant in his cross-examination has described the specification of the suit property therefore, the finding of the Courts below that there is ambiguity in the description of the suit property is completely perverse as such not sustainable.

(vii) The applications for reception of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure are aimed to bring on record events allegedly happened subsequent to the filing of the present appeal and evidence in support thereof. On the death, the requirement of the plaintiff for his mother ceased to exist nonetheless the requirement of other family members of the plaintiff including the requirement of the sons remain.

(viii) The plaintiff due to the bad condition of the suit premises most of the time is residing at his brother's house such temporary stay cannot be construed that the plaintiff does not require the suit property anymore. The defendant has successfully deferred the disposal of the eviction suit and is now trying to take advantage of a situation developed due to such wrong conduct of the defendant, therefore he is not entitled to take any benefit out of the said situation under the law. The Hon'ble Supreme Court in the case of Gaya Prasad vs. Pradeep Srivastava reported in (2001) 2 SCC 604 has held that the crucial date for deciding the requirement of the landlord is the date of filing of the eviction suit. The Hon'ble Supreme Court in the case of D.

Sasi Kumar vs Soundararajan reported in (2019) 9 SCC 282 has reiterated the said proposition of law.

In conclusion it is submitted that both the learned Courts below have committed substantial error of law in dismissing the suit therefore the substantial questions of law framed in the present appeal may be answered in affirmative. 6.

Mr. Arul Prasanth, learned advocate for the respondent argues as follows:- (i) The paper book of the appeal is defective inasmuch as all the exhibited documents have not been included in it.

(ii) The plaintiff intentionally has made a false statement regarding his ownership over the suit premises as it belongs to a cooperative society, the appeal is liable to be dismissed for making such false statement besides the said cooperative society is a necessary party to the suit but has not been impleaded, the appeal therefore is also liable to be dismissed on the said ground.

(iii) Notwithstanding the death of the mother before filing of the present second appeal the ground of her requirement has been pressed in the memorandum of appeal which signifies that the plaintiff has not approached this Court with cleans hands and the appeal is also liable to be dismissed for such blemished conduct of the plaintiff,.

(iv) The unreported decisions of the Hon'ble Supreme Court in the case of Kusha Duruka vs. The State of Odisha in Criminal Appeal No. 303 of 2024 (Arising out of S.L.P, (Crl) No. 12301 of 2023) passed on January 19, 2024, The Auroville Foundation vs. Natasha Storey in Civil Appeal No. 13651 of 2024 passed on March 17, 2025 and the reported decision of the Hon'ble Supreme Court in the case of Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others reported in (2013) 11 SCC 531 are cited for the proposition of law that a party who does

not approach the Court with clean hands is not entitled to any relief.

(v) The sons of the plaintiff since are studying in Mainland and abroad their requirement cannot be treated as bonafide. The mother of the plaintiff at no point of time had resided with him, she all alone lived in a separate flat. The plaintiff in order to get a decree on the ground of bonafide requirement must demonstrate the availability of his present accommodation but no attempt was made to fulfill the said condition by applying for appointment of a Commissioner to inspect the ground floor of the premises, the said exercise since has not been carried out, the Courts below have rightly dismissed the suit. In support of such contention, the decision of the Hon'ble Division Bench of this Court in the case of Lakshman Chandra Saha vs. Smt. Bansari Mukherjee reported in AIR 1992 Cal 148 is cited.

(vi) The plaintiff at present is not residing in the ground floor as would be reflected from the electricity bills which have been brought on record under the applications under Order 41 Rule 27 of the Code, therefore the requirement of the plaintiff for the suit property has ceased to exist.

In conclusion it is submitted that no substantial questions of law as framed are involved in the present second

appeal warranting interference to the concurrent findings of the Courts below, therefore the instant second appeal is liable to be dismissed with exemplary costs.

7.

Heard learned counsel for the parties. The materials on record are thoroughly examined. Out of the four framed substantial questions of law, the first and fourth are intermingled as such they are taken up for analogues consideration. The said questions of law are reproduced below:- "(i) Whether both the courts below committed grave error in rejecting the suit of the plaintiff/appellant seeking eviction of the defendant/respondent on the ground of bonafide requirement in absence of any commissioner to be held to ascertain the veracity and the authenticity of the schedule appended to the plaint?

(iv) Whether both the courts below committed error in dismissing the suit solely on the ground of ambiguity in description of the property when the defendant never raised such question in the evidence nor any reply to eviction noticed given to him?"

8.

The defendant in his written statement had never raised a dispute with regard to the description of the suit property, as specified in the schedule appended to the plaint. The defendant rather in his cross-examination recorded on February 22, 2017 has stated that in the rented accommodation there are two bedrooms, two bathrooms, one kitchen, two verandahs having one at the back, one living-cum-dining room the said description exactly matches with the description of the suit property given in the schedule appended to the plaint. In fact, the same was not a disputed issue before the Court

below. Therefore, the finding of the Courts below that there is ambiguity in the description of the suit property is apparently perverse.

9.

The defendant, as discussed above himself has described the accommodation available to him in the first floor i.e. suit property and in his cross-examination recorded on December 27, 2016 has stated that the interior design of the ground floor and first floor are almost identical. In view of such admitted position dismissal of the suit for want of inspection of the ground floor to ascertain the extent of accommodation available to the plaintiff in the suit premises is not justified and for the said reason the decision of Lakshman Chandra Saha (supra) cited by Mr. Prasanth is not applicable in the facts and circumstances of the present case.

Therefore, the said first and fourth substantial questions of law are answered in affirmative.

10.

Let me now consider the second substantial question of law which is reproduced below:- "(ii) Whether both the courts below committed error in rejecting the suit filed by the plaintiff/appellant seeking requirement for herself but also her two sons who are admittedly residing with her and the requirement of a further accommodation for such sons comes within the purview of the regulation?"

11.

The plaintiff requires the suit property to accommodate himself, his mother and two sons who are students. The mother has died, therefore her requirement has ceased to exist but whether with the

death of the mother, the requirement of the plaintiff has been totally eclipsed is required to be looked into, inasmuch as the Hon'ble Supreme Court in the case of Gaya Prasad (supra) has held that the subsequent events must be of such nature which would disentitle the landlord to get a decree of eviction. In this context, it is apposite to quote the following excerpts from paragraph 13 of the said decision:- "13. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. ..."

12.

The sons of the plaintiff are admittedly students and they are studying in the Mainland and one of them at present is studying in abroad. The requirement of the plaintiff as envisaged under the Regulation 13(1)(c)(i) of the said Regulation of 1964 includes the requirements of his family members, therefore the requirement of the sons of the plaintiff who are students is the requirement of the plaintiff himself. The Hon'ble Supreme Court in the case of Kailash Chand and another (supra) has held that the requirement of the family members for residence is certainly the requirement by the landlord for his own occupation.

Therefore on the death of the mother the requirement of the plaintiff for the suit property has not been completely eclipsed. 13.

I am unable to convince myself to accept the argument of Mr. Prasanth that the requirement of the plaintiff for his sons is not

bonafide as they are not studying in the Port Blair, rather they occasionally come here during vacation.

The second substantial question of law therefore is also answered in affirmative.

14.

To consider, the third substantial question of law is reproduced below:- "(iii) Whether both the courts below committed error in holding that the requirement is not genuine as the mother of the appellant had a sanctioned building plan in respect of another survey number when admittedly the provisions relating to the eviction does not contain any requirement of the existence of alternative reasonably suitable accommodation?"

15.

To deal with the said substantial question of law, it is necessary to quote the Regulation 13(1)(c)(i) of the said Regulation of 1964, which runs as follows:- "13. (1) Notwithstanding anything to the contrary contained in any other law or any contract, no tenant of any premises shall be liable to be evicted therefrom except by an order of the court on any one or more of the following grounds namely:- (a) ...

(b) ...

(c) that the landlord requires the premises bonafide for - (i) occupation as residence for himself or any member of his family."

16.

Under the above quoted Regulation the landlord in order to get a decree on the ground of bonafide requirement is not obliged to prove that except the suit premises there is no other alternative suitable accommodation available to him. However, existence of such

alternative accommodation may cast a cloud of doubt on the bonafide of the requirement of the landlord but if such a defence is taken the burden of proof is on the defendant.

17.

The plaintiff in his evidence in chief has denied the allegation that he owns six houses. The defendant in his cross-examination though has stated that out of the six houses one is occupied by the mother of the plaintiff, one is occupied by the brother but he has failed to state who are the occupier of the other buildings. The defendant in his cross-examination recorded on February 22, 2017 has stated that the plaintiff is possessing a portion of the suit premises and he has no other house to reside. He has also stated that it may be true that apart from suit property there is no other property in the name of the plaintiff.

18.

In the suit some documents relating to a building sanction plan and provisional orders of the Port Blair Municipal Council regarding violation of the building plan in constructing the said building have been marked exhibits in the suit. The said documents indicates that a building plan in respect of survey No. 1728/2 at Aberdeen, Ward No. 14 was sanctioned in the name of the deceased mother of the plaintiff but those documents itself does not prove existence of an alternative suitable accommodation to the plaintiff. The said documents at best can create a doubt regarding the requirement of the mother of the plaintiff, however, the said requirement at present is no more in existence. That apart, there is no material evidence on

record to suggest that the plaintiff is the owner of six houses where the plaintiff has available accommodations, the defendant has failed to discharge his burden to prove his said defence. 19.

The Hon'ble Supreme Court in the case of Sarla Ahuja (supra) and in S. R. Babu (supra) has held that when a landlord asserts that he requires his building for his own occupation, the Court shall not proceed on the presumption that the requirement is not bonafide rather when other conditions are satisfied and landlord shows a prima facie, case it is open to the Court to draw a presumption that the requirement of the landlord is bonafide and it is not for the tenant to dictate the terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. Therefore, both the Courts below have committed substantial error of law in holding that the plaintiff has failed to establish his bonafide requirement for the suit property.

In view of the discussion made above the third substantial question of law is also answered in affirmative. The applications filed by the defendant under Order 41 Rule 27 of the Code are taken up for consideration 20.

The defendant has filed three applications under Order 41 Rule 27 of the Code for reception of additional evidences in the present second appeal. The defendant by the said application has sought to

bring the events occurred subsequent to the filing of the second appeal on record.

21.

First of such applications (CAN/1/2023) is for bringing the fact of the death of the mother of the plaintiff on record. The said fact is admitted but for the said death, as has been already held that the requirement of the plaintiff for the suit property has not been totally vanished.

22.

The defendant in the other two applications (CAN/2/2024 and CAN/3/2024) has stated that the plaintiff has abundant the suit property and one of the sons of the plaintiff is studying in abroad. The plaintiff in affidavit-in-opposition to the said applications has stated that due to the bad condition of the suit premises he often resides in the brother's house. The facts and documents sought to be brought on record by way of additional evidence have no effect on the bonafide requirement of the plaintiff for the suit property inasmuch as the eviction proceeding is pending since 2013 the plaintiff might have been compelled to improvise his way of living due to long pendency of the litigation but the defendant is not entitle to derive any advantage of such changed circumstance. The Hon'ble Supreme Court in the case of Gaya Prasad (supra) has held that the crucial date for deciding the bonafide of the requirement of the landlord is a date of his application for eviction. The landlord should not be penalized for the slowness of the legal system. The Hon'ble Supreme

Court has reiterated the said principle in the case of D. Sasi Kumar (supra).

Regarding the submission of Mr. Prasanth that the plaintiff is guilty of suppression of material fact and the paper book of the appeal is defective 23.

The landlord under the relevant provision of the said Regulation of 1964 is not obliged to disclose alternative suitable accommodation even if it is available to him, as such non disclosure thereof does not amount to suppression of the material fact, so the non disclosure of the place of study of the sons. The decisions of the Hon'ble Supreme Court cited by Mr. Prasanth are entirely misplaced. 24.

Rule 56 under Part-III of Chapter IX of the Appellate Side Rules of the High Court at Calcutta, prescribes that the paper books in all appeals from appellate decree will consist of the following papers :- (a) The judgment of the firs court;

(b) The judgment of the lower appellate court; (c) Any judgment or orders or remand passed in the case either by the lower appellate court in appeal or by the High Court on second appeal;

(d) The memorandum of second appeal;

(e) A front leaf containing the number of the cause, the names of the Judges of the two courts below; the names of the parties and of their advocates; the date of the institution of the suit; the date of the judgment of the first court; the date of the judgment of the lower appellate court; the date on which the appeal was filed and the date on which the appeal was decided.

The paper book of the present second appeal contains all of the aforementioned papers, in addition plaint, written statements, evidence etc. have been included in it. Therefore, the submission of Mr. Prasanth that the paper book is not in form cannot be accepted, nonetheless the said objection has no relevance in answering the framed substantial questions of law.

25.

The defendant in his written statement neither has denied the ownership of the plaintiff over the suit premises nor he has disputed his relationship with the plaintiff as landlord and tenant. The plaintiff has cited the Secretary of Sahajeevan Housing Cooperative Society as PW-2 in the suit. The said witness has proved the ownership certificate of the plaintiff dated March 06, 2002 being exhibit-3. Therefore, the argument of Mr. Prasanth that the plaintiff has made a wrong statement regarding the ownership over the suit property or the said cooperative society is a necessary party to the suit is rejected.

Conclusion:

Summing up the discussions made above, SA/6/2024 is allowed, consequently the judgment dated March 22, 2021 and decree dated March 24, 2021 passed by the learned District Judge, A & N Islands at Port Blair in Other Appeal No. 16 of 2019 affirming the judgment dated August 30, 2019 and decree dated September 16, 2019 passed by the learned Civil Judge (Senior Division) South

Andaman, at Port Blair in Other Suit No. 30 of 2013 is set aside. The Other Suit No. 30 of 2013 is decreed on contest. The connected applications being CAN/1/2023, CAN/2/2024 and CAN/3/2024 are accordingly disposed of. There shall be, however, no order as to costs. Directions:

The defendant is directed to quit and vacate the suit property by delivering the peaceful possession of the same in favour of the plaintiff within thirty days from date, in default, the plaintiff shall be entitled to execute the decree in accordance with law. The trial court records be sent down immediately by the special messenger at the costs of the plaintiff to be put in within a week from date.

Decree be drawn up accordingly.

Parties to act on the server copy of this order downloaded from the official website of this Court.

Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.

(BISWAJIT BASU, J. )