A.K. Mukherji Vs. Prodip Ranjan Sarbadhikary and ors. - Court Judgment

A.M. Bhattacharjee, J.

1. The two Judges Bench decision of the Supreme Court in Mattulal v. Radhe Lal, : [1975]1SCR127 , which has followed the earlier four Judges Bench decision in Sarbate T. B. v. Nemichand, 1966 MPLJ 26 (SC) and has held the contrary view in the three Judge Bench decision in Kamla Soni v. Rup Lal Mehra, 1970 RCJ 34 : (AIR 1969 NSC 186) not to be good law in view of Sarbate T. B. (supra) and even otherwise, has now been taken to have settled that the finding as to reasonable requirement of the suit-premises by the landlord in a suit for ejectment against the tenant is a finding of fact unassailable in second appeal unless it can be shown that there was an error of law in arriving at such a finding or that the finding was based on no evidence at all or was such as no reasonable person could arrive at it. A later three Judge Bench decision in Damadilal v. Parasram, : AIR1976SC2229 has only adverted to the earlier views without, however, expressing any opinion. It must, however, be noted that Mattulal (supra) was rendered when second appeals were being governed by the provisions of Section 100 of the Code of Civil Procedure as it stood before its amendment by the Amendment Act of 1976. Under Section 100 as now substituted by the said Amendment Act, the jurisdiction in second appeal has been sought to be considerably circumscribed and a second appeal, now lies only on a 'substantial question of law'. It is, therefore, doubtful whether a finding of fact even though arrived at on 'no evidence or in disregard of material evidence can give rise to a substantial question of law to sustain a second appeal. It is equally doubtful as to whether any error of law in arriving at a finding of fact could still warrant a second appeal unless a substantial question of law is involved therein. It is also doubtful as to whether a substantial question of law would barge in simply because the finding of fact arrived at by the Court below is such that no reasonable person would come to it. As early as in 1890, the Judicial Committee pointed out in Durga Chowdhrain v. Jawahar Singh, (1890) 17 Ind App 122 (PC) that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. As has been pointed out by the Supreme Court in Mandamanchi Ramappa v. Muthaluru Bojjappa : [1964]2SCR673 , even if it appears to the Second Appellate Court that justice had not been done in a particular case in deter mining issues of fact, the Second Appellate Court must fold its hands as it can do justice only according to the terms of Section 100 of the Code of Civil Procedure and 'consideration of fair play and equity, however, important they may be, must yield to clear and express provisions of the law.'

2. Now that the present Section 100 of the Code of Civil Procedure uses the expression 'substantial question of law' and permits a second appeal only on such a question, reference may be made to a five Judge Bench decision of the Supreme Court in Chunilal V. Mehta v. Century Spg. and Mfg. Co. : AIR1962SC1314 , where the provisions of Article 133(1) of the Constitution, as it stood then, were being construed which provided that where the judgment, decree or final order appealed from affirmed the decision of the Court immediately below in any case other than a case covered by Sub-clause (c) thereof, an appeal would lie to the Supreme Court if the High Court certified that the appeal involved some 'substantial question of law' and the Supreme Court observed thus (at paragraphs 5 and 6): --

'On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case, it would not be a substantial question of law.........The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.'

3. We express grave doubts as to whether there can be a substantial question of law meriting a second appeal under Section 100 of the Code, as it now stands, simply because the first appellate Court has found evidence where there is none or has failed to find evidence where there is one or has come to a finding of fact which according to the Second Appellate Court is such as could not be arrived at by any reasonable man on the facts found We have also noted hereinbefore that it is also doubtful as to whether a mere error of law in reaching a finding of fact can still sustain a second appeal under the new Section 100, unless a substantial question of law is involved therein. It is high time that we ascertain as precisely as possible the extent to which the scope of second appeal has now been narrowed down by the Amendment of 1976, for otherwise the very purpose of the amendment would stand eroded and second appeals would continue to surge in in our Courts as before on the pretext of errors of law masquerading as substantial questions of law. But we do not propose to do so in this case as in our view this second appeal would fail even according to the tests prescribed therefor under Section 100, as it stood, as explained by the Supreme Court in Mattulal : [1975]1SCR127 (supra).

4. The suit for ejectment giving rise to this second appeal was filed by the present respondent and his mother as co-owners and co-plaintiffs and it has been found by both the Courts below that their family consisted of the mother, the son, his wife, their three children (being a daughter now aged about 23 years and two sons now aged about 20 and 17 years), an attendant and a driver. It has been held by the Courts below that they would require one bedroom for the mother, one for the son and his wife, one for the daughter and at least one for the two sons, one dining room, one reading room, one drawing room and one servant's room, besides at least a kitchen, a bath-room, a store-room and a box-room for storing of multifarious materials and also a garage. It has been found that while the landlords have got only two rooms, a small store-room, a bath-room, a small verandah and a small dumping space, the disputed premises occupied by the tenant consists of three rooms, one dining space, one verandah, two bath-rooms, one kitchen, one store-room and one garage. It has accordingly been held by the Courts below that in view of the extent of accommodation available to the landlords and their need for further accommodation, they would reasonably require the premises in the occupation of the tenant-appellant.

5. Now if the requirement of the landlord is qualitatively reasonable, the quantity or extent of requirement would, by and large, be a question of fact and such a finding cannot be disturbed in second appeal even by the Mattulal : [1975]1SCR127 test under the old Section 100 of the Code of Civil Procedure unless the same is based on no evidence or is so unreasonable as could not be come to by any reasonable person. We do not find the finding to be based on no evidence at all or to be so unreasonable either and we must, therefore, allow the finding to stand.

6. In a suit for ejectment on the ground of reasonable requirement for his own occupation, a landlord has got to meet and answer two questions-- (1) why does he require and (2) how much does he require -- and Mr. Dasgupta, the learned Counsel for the tenant-appellant, has urged that even assuming that the second question may, by and large, be a question of fact, the first question very often be a question of law. The contention is not without force and, as we have already indicated, the quality of requirement as distinguished from' the quantity, may in a given case comprise a question of law and a Court even in second appeal may have to inquire as to whether the ground of requirement put forward by the landlord can in law amount to a reasonable requirement. For example, if a landlord wants to evict a tenant to have a clearer view of the sky or the celestial bodies, his requirement can never be a reasonable requirement in the eye of law. Mr. Dasgupta has pointed out that the respondent-landlord, though of Indian origin, and formerly an Indian Citizen, has renounced his Indian Citizenship and is now a citizen of Canada, employed in a high-ranking teaching post with lucrative remunerations in a Canadian University, has a foreigner wife of Spanish origin who is also now employed in Canada and his three children are also receiving education in foreign educational institution and, therefore, he cannot be reasonably expected to come back to India and settle in Calcutta and thus to require the possession of the suit-premises. The respondent-landlord has, however, asserted that he went abroad to gain experience and to earn money and having acquired both he has now decided to come back to and settle in India. He has stated further that he was attached to the Jadavpur University as a Lecturer till he went to Canada in 1965, that he still maintains close contacts with various Indian Universities, was appointed Examiner in Ph.D. Course in the Calcutta University, had been coming to Calcutta frequently since 1970 to adapt his children with the Indian conditions, had put them in Calcutta schools for about five months in 1970, for about a year in 1972-1973 and again for about eleven months in 1977-1979, but that he had to go back for want of accommodation. He has stated further that he intends to come to India to bring up his children in Indian environments, to look after the properties left by his father, who also stayed abroad for about thirty years in connection with servive and came back and finally settled in India after acquiring properties. He has also stated that he has joined a reputed club in Calcutta and it is on record that he has also become a Director of one Webel Carbon & Metal Film Ltd in Calcutta after investing a huge sum therein. If on these materials the Courts below have held that it has been satisfactorily proved that 'he intends to come back to India' and 'would be living in Calcutta', it is not for us sitting in second appeal to assume the role of a thought-reader and to probe into his mind and to hold that he does not or cannot so intend. As was pointed out by Sir George Lowndes in the Judicial Committee in Balasubrahmanya v. M. Subbayya (AIR 1938 PC 34 at p. 35), whether a particular intention can be inferred from a particular state of facts and circumstances is a question of fact and if the Courts below have concurred on this, we in second appeal must leave it at that. The decision of the Supreme Court in I.C.I. (India) Private Ltd. v. Commr. of I.T., AIR 1972 SC 1524 at Pp. 1526, 1530 : (1972 Tax LR 770) is also a clear authority for the view that intention is essentially a question of fact and since we do not find the finding as to intention by the Courts below either to be based on 'no evidence' or to be palpably so unreasonable as could not be arrived at by any reasonable man, the finding would be beyond challenge.

7. It may be, as urged by Mr. Dasgupta, that the respondent is for the present settled in Canada quite comfortably with a lucrative job earning very much more than what he would be able to earn here in Calcutta even with his high academic qualifications. But that, by itself, cannot be a ground to persuade us to hold that he cannot decide to come back to his home-land, even if we were inclined to examine and could examine the finding of fact reached by the Courts below that he sincerely intends to do so. Human mind being as it is, attraction for the homeland may be irresistible for one, notwithstanding all his prospects and prosperities, luxuries and comforts in a foreign land. When Sri Ramachandra, after he vanquished Ravana, was told by Laxman that the golden country of Srilanka was at his disposal, he replied - Api Swarnamoyee Lanka Laxmana Tanna rochate, Janani Janmabhumischa Swargadapi Gariashi - and preferred Ajodhya to Sriknka. Tagore also demonstrated his irresistible attachment to his home-town Calcutta when he said in one of his famous poems that if he would take a birth again, he would be born in Calcutta only, notwithstanding all its woes and miseries. We would accordingly hold that the finding that the respondent intends to come back to India and to settle in Calcutta and is not in a position to do so for want of accommodation and would reasonably require the suit-premises for such accommodation are findings of fact and not being based on 'no evidence' nor being palpably unreasonable, all challenges against these findings in this second appeal would fail even according to the tests laid down by the Supreme Court in Mattulal : [1975]1SCR127 (supra) under Section 100 of the Code of Civil Procedure, as it stood before the amendment of 1976 and must, therefore, fail under the said Section as it now stands.

8. True, the respondent landlord is now a foreigner being a citizen of Canada. It is also true that notwithstanding the guarantee of equality to every person including a foreigner under Article 14 of the Constitution, our laws may treat the foreigners differently from the citizens on reasonable grounds. But even under our Constitution, a foreigner has a guaranteed right not to be deprived of his property save by authority of law and while it was a fundamental right under Article 31(1) till 1979, the right, though still constitutionally guaranteed under Article 300A, has lost the earlier label of fundamentality, with this resultant difference that while a foreigner can no longer rush directly to the Supreme Court under Article 32 of the Constitution for the enforcement of the right, he can have recourse to all other Courts, and thereafter also to the Supreme Court, for protection of that right. Under Section 83 of the Code of Civil Procedure, aliens may sue in our Courts though in the case of an alien enemy, he must be residing in India with the permission of the Central Government. The respondent-landlord being a citizen of Canada, is an alien friend within the meaning of Section 83 of the Code and can, therefore, under that Section, sue in any Court otherwise competent to try the suit.

9. Mr. Dasgupta has, however, drawn our attention to the provisions of the Citizenship Act, 1955 and the Rules made thereunder and also to the provisions of the Canadian Law of Citizenship and has urged that the respondent-landlord having once renounced Indian Citizenship, it would be extremely difficult for him to acquire Indian Citizenship again, This question, in our view, would have been relevant if the law was that in India a person cannot reasonably require a premises for his own occupation unless he is a Citizen of India, but we are not at all inclined to take that to be the position in law. If under the law an alien friend, as the respondent happens to be, can reside in and acquire property in India, can induct tenants therein, can sue in respect thereof in a competent Court while remaining an alien, then it would be difficult to understand as to why such an alien cannot, even on proof of his reasonable requirement to the satisfaction of the Court, obtain a decree for ejectment of his tenant under the West Bengal Premises Tenancy Act or other relevant law. Even a domicile is not necessary to enable a foreigner to institute such a suit and there is also nothing in law to prevent a foreigner from acquiring a domicle in India notwithstanding his Non-Indian Citizenship. May we remind ourselves of Tagore's celebrated message to the effect that 'Everyone will have to join here with bowed, heads, on the shore of this vast sea of humanity, that is India'? We should have no doubt that Indian Citizenship is not and cannot be a sine qua non therefor.

10. It is true that, as pointed out by Mr. Dasgupta, under Section 6(3) of the Citizenship Act, 1955, the respondent, having once renounced his Indian Citizenship, cannot be registered again as a Citizen of India except by the order of the Central Government. But this cannot, by itself, stand in the way of the respondent's getting a decree of ejectment in this case when he has satisfactorily proved that, as found by the Courts below, he reasonably requires the suit-premises and he will have to take care of the citizenship matter in due course as and when he would be applying for the same. Mr. Dasgupta has also drawn our attention to the provisions of Rule 16C of the Citizenship Rules, 1956 wherein a citizen of Canada, in order to apply for Citizenship of India, must be residing in India throughout a period of twelve months immediately preceding the date of the application and must also, during the seven years immediately preceding the said period of twelve months, have resided in India for periods amounting in the aggregate to not less than four years. If that is so, then a reasonable accommodation in India for the respondent would all the more be necessary in order to enable him to apply for and acquire Indian Citizenship.

11. As we have already indicated hereinbefore, the suit was originally instituted by the respondent and his mother as co-landlords and co-plaintiffs for reasonable requirements of both of them and both the Courts below have decreed the suit on the ground of their requirements. The mother has, however, died during the pendency of the second appeal in this Court and she having left a Will appointing the respondent as the executor and also making him the sole legatee in respect of her share in the suit-building, the respondent now represents her interest as the executor as well as the sole legatee. As a copy of probate was not made available at the commencement of the hearing of this appeal, it was urged by Mr. Dasgupta that the appeal was not maintainable. But since a copy of the Probate has thereafter been filed during the course of hearing, the point has no longer been pressed by Mr. Dasgupta and need not detain us.

12. It is now settled that the cause of action for the suit grounded on the personal requirement of a landlord is not such a personal action as would die with the person, but would survive to his heirs, who can maintain the action. The contrary view in an earlier decision of the Supreme Court in Phool Rani v. Naubat Rai, : [1973]3SCR679 has been overruled in the later decision in Shantilal Thakordas v. Chimanlal Maganlal, : [1977]1SCR341 . But even though the cause of action for the suit instituted by the deceased landlord would survive to his heirs who can maintain the action, the suit can, however, be decreed in their favour as the substituted plaintiffs only when it is proved that they also themselves require the premises. In this case, therefore, the respondent can still maintain the action as the legal representative of his mother, even if the suit was filed by the mother alone, if the evidence on record would show that he also reasonably requires the premises.

But in this case, the respondent was also a co-plaintiff and, therefore, he can all the more maintain the action provided it is proved that, apart from the mother, who is now dead, he also reasonably requires the premises for his own occupation.

13. So far this Court is concerned this was settled at least since the decision in Raicharan v. Biswanath, AIR 1915 Cal 103 that, though a lis even at the appellate stage is generally to be governed by the facts as they stood on the date of the initiation of the lis, yet if the relief granted is required to be revised, recast or otherwise altered as a result of post-lis subsequent developments, the Court must take notice thereof to mould the relief in order to do justice and to shorten litigation and this has now become the law of the land as a result of the Supreme Court decision in Shikharchand v. Digambar : [1974]3SCR101 where Raicharan (supra) has been approved. At one stage we thought that this being a second appeal, we would remand to the first Appellate Court the Issue to determine the impact of the death of the mother on the claim of the respondent for reasonable requirement, but both Mr. Mukherjee appearing for the respondent and Mr. Pal appearing for the appellant have strongly advised us not to do so and to determine the question ourselves in this appeal. It is true that under Section 100 of the Code of Civil Procedure, and particularly after its amendment in 1976, no second appeal is admissible on a question of fact and a second appeal can now be entertained only on a substantial question of law. But as has been rightly pointed out by Mr. Mukherjee, once a second appeal has been properly admitted on such a question, a question of fact is not necessarily a prohibited area even in second appeal as Section 103 of the Code confers on the Second Appellate Court all the powers to determine any Issue necessary for the disposal of the case, if the evidence on record is sufficient. Reference in this connection, if need be, may be made to the observations of the Supreme Court in Balai Chandra Hazra v. Shewdhari Jadav, : [1978]3SCR147 .

14. As we have already noted, it has been found by the Courts below that the twoplaintiffs, being the mother and the respondent son, required one bedroom for the mother, one for the son and his wife, one for the son's grown up daughter, one at least for the two grown up sons of the son, one dining room, one reading room, one drawing room and one servant's room besides at least a kitchen, a bath-room, a store-room and a box-room for dumping multifarious materials and also a garage and while they are in possession of only two rooms, a small storeroom, a bath-room, a small varandah and a small dumping space, the tenant in the disputed premises is in occupation of three rooms, one dining space, one varnadah, two bath-rooms, one kitchen, one store-room and one garage. As we have already noted, these findings of facts are no longer assailable in this appeal. That being so, even if we now exclude the requirement of one separate bedroom for the mother from the total requirement as found by the Courts below, we cannot but hold that the present respondent would still reasonably require the accommodation available to the tenant in the disputed premises for his own occupation and the occupation of the members of his family.

15. It has also been urged by Mr. Dasgupta that, the plaintiff-respondent has another tenant in the same building but has admittedly taken no steps to sue him in ejectment. If a plaintiff-landlord has several tenants and the premises in occupation in any of them would satisfy his requirement, he would obviously have to make a choice and in such a case if he has satisfactorily proved his reasonable requirement in respect of the premises occupied by the defendant-tenant, the fact that he has not proceeded against any other tenant cannot, by itself, militate against his claim for reasonable requirement and we find the decision of P. N. Mookerjee, J. in Sumatibala v. Heramba, (1956) 60 Cal WN 783 at p. 785 and that of a later Division Bench in Lakshminarayan v. Dwarka Nath, (1968) 72 Cal WN 846 at p. 851 to be clear authorities for this view. The observations of the Supreme Court in M. M. Quasim v. Manohar Lal : [1981]3SCR367 to the effect that a landlord cannot have an unfettered right to choose whatever premises he likes must be understood in the context of the relevant facts of the case where the landlord had some other vacant premises in his possession and had also obtained decree for possession in respect of some other premises. That is not the case here.

16. We would accordingly dismiss the appeal with costs, which we hereby do and affirm the decree of the trial Court which has been confirmed by the first appellate Court with this modification that the tenant-appellant will vacate the possession of the suit-premises within 21st December, 1987, failing which the res pendent-landlord will be at liberty to recover possession of the premises in execution of the decree.

Ajit Kumar Nayak, J.

17. I agree.