Hamnath Malhotra And Another v. Dhanoo Devi Agarwala .

A.K Sinha, J.:— These two second appeals are preferred by two separate tenants against a common appellate judgment and decree for ejectment from the disputed premises, briefly in the following circumstances:

Two separate suits were filed by the respondent as owner against her tenants H.N Malhotra and H.P Goenka for their ejectment from premises No. 1, Lower Rowdon Street, a two-storied building. Malhotra occupying ground floor and Goenka occupying the first floor. The premises had out-houses and garages etc. which were also occupied by both the tenants separately. Shortly put, the respondent's case is that she purchased the premises on October 15, 1960 and the appellants who were in occupation of the ground floor and first floor respectively continued as monthly tenants since her purchase. The ground of ejectment is reasonable requirement for the respondent's own use and occupation as she lives in the third floor of a rented premises which is too insufficient and inadequate for accommodating her ailing husband and other members of her family and servants as also office of several companies owned by her and some of the staffs working in the office. In spite of service of notice of ejectment and for institution of suit the defendants failed to vacate.

2. Both the appellants contested the suit and the written statements they put in consist of general denial of material allegations. In particular, they denied the reasonable requirement of the respondent for her own use and occupation as also the validity and sufficiency of the notices.

3. The learned trial Court found as a fact on evidence that the respondent required the premises reasonably for her own use and occupation but at the same time dismissed the suit on the view that the impugned notices were invalid as mere service of subsequent ejectment notices could not constitute waiver of earlier notices. On appeal by the respondent the appellate Court below concurred with the finding of the trial Court on the question of reasonable requirement but in disagreement with the trial Court on the question of validity of notices it also held that the impugned notices were valid and accordingly decreed both the suits. That is how, in short, both the appellants felt aggrieved and preferred the present appeals.

4. Now, on the question of sufficiency of notices both the courts below found that the impugned notices did not suffer from any of the infirmities of insufficiency. On the other question as to validity of these notices the admitted facts are, as found by the courts below, that two previous suits brought by the respondent in 1961 against the appellants for ejectment were withdrawn by the respondent on the ground that the notices served for ejectment (Exts. B-2 and C-2) upon these two appellants were not valid with notices to and in presence of the appellants who did not raise any objection. It is also not disputed that previous suits were contested by both the appellants and in their written statements they challenged the validity or sufficiency of these ejectment notices. In the present suits also the appellants have raised the same objection and characterised the fresh notices as invalid and insufficient on an assertion that their tenancies are still continuing. In spite of these admitted facts it is difficult to see how the question whether the first notices were waived by issuing fresh notices of ejectment could at all be considered relevant in this case. Clearly, the first suits on the basis of the first notices were withdrawn on the ground of defective notices to which the appellants did not raise any objection. In the present appeals also, in their written statements they asserted that their tenancies were continuing: obviously, in spite of service of the first notices or of the subsequent notices the appellants are still maintaining that their tenancies are continuing. It is, therefore, clear, by their conduct, the appellants actually accepted the position, at the time when the first suits were withdrawn and dismissed by the Court that the notices were defective and could not have terminated their tenancies. Mr. Banerjee on behalf of the appellant Malhotra contends that since there was no adjudication as to validity or sufficiency of the notices in the first suits the notices must be treated to have been validly terminated the tenancy of the appellants. If therefore, it is contended, once there is a notice either from the landlord or the tenant terminating the tenancy there cannot be any question of waiver merely by issuing another subsequent notices of ejectment unless there is express or implied consent of both parties to restore the contractual tenancy. Mr. Banerjee has sought to support his contention from two decisions of the Supreme Court in AIR 1968 SC 471, Calcutta Credit Corpn. v. Happy Homes Ltd. and (1970) 1 SCC 46 : AIR 1971 SC 102, Tayabali v. Ahsan and Co. The relevant facts in the first case for our present purpose are that the original tenant served a notice upon the landlord for vacating the premises and the landlord accepted that notice as valid but subsequently the tenant resied from that position and gave a further notice treating the earlier notice as cancelled. The landlord, however, refused to act upon that notice and filed a suit for ejectment which ended in a compromise decree by virtue of which the tenant delivered possession of the portion of the premises actually in its occupation and gave liberty to the landlord either to retain or reject the sub-tenant in occupation of other portion who was, it was further stated, inducted as a sub-tenant without the knowledge and consent of the landlord. Thereafter a suit was filed by the landlord to eject the sub-tenant and continued by the transferee landlord. Upon these facts while considering the question whether on subsequent cancellation of the previous notice the tenant could plead waiver the Supreme Court has held that once a valid notice terminating the tenancy is given it could not be withdrawn without the consent of both. It is also held that although the party upon whom the notice is given is entitled to plead or challenge the validity or sufficiency of such notice if the party upon which such notice is given accepts and acts upon it the party giving such notice will be estopped from denying its validity. It follows that a party who has allowed a suit based on such notice as defective to be withdrawn and consequently, dismissed by Court, cannot again insist that such notice of termination once given could not be withdrawn as invalid. We think on the facts of this case this decision of the Supreme Court does not advance the argument.

5. The other decision of the Supreme Court is equally of no assistance to the appellants. In this case, first notice was given by the landlord to the tenant on the ground of habitual defaulter with demand for payment of the amount of arrears. A second notice thereafter was given on a fresh ground of reasonable requirement. In the interval between first and second notice some rents were paid and accepted by the landlord. On the basis of the second notice thereafter the landlord brought a suit for ejectment. On the plea of the tenant that there was no waiver of the first notice and second notice could not terminate the tenancy of the petitioner, the Supreme Court held on facts that “it was unnecessary to decide whether for bringing about a waiver under Section 113 of the Transfer of Property Act a new tenancy by an express or implied agreement must come into existence. All that need be observed is that Section 113 in terms does not appear to indicate any such requirement and all that has to be seen is whether any act has been proved on the part of the present appellant to treat the lease as subsisting provided there is an express or implied consent of the person to whom the notice was given.

6. In the present case, there can be no doubt that the serving of the second notice and what was stated therein together with the claim as laid and amplified in the plaint showed that the landlord waived the first notice showing an intention to treat the tenancy as subsisting and that this was with the express or implied consent of the tenant to whom the first notice had been given because he had even made payment of the rent which had been demanded though it was after the expiration of the period of one month given in the notice”. From the above observation it seems clear that the question as to what constitutes waiver was not decided but on facts it was found that there was waiver of the first notice.

7. Mr. Deb on behalf of the appellant Malhotra has, however, sought to support Mr. Banerjee by citing two decisions one of Supreme Court in AIR 1961 SC 1067, Ganga Chandra v. Kartick Dutta of the Punjab High Court in AIR 1953 Punj 243. Basheshwar Nath v. Delhi Improvement Trust. The Supreme Court decision has no application to the facts of the present case for here, a contractual tenancy was determined by efflux of time and since that day tenant continued in possession of the premises without any fresh contract of tenancy, it was held that the tenant became a statutory tenant and was not liable to eviction except under the conditions laid by that statute even though the tenant continued to pay contractual rent as required under the West Bengal Premises Rent Control Act, 1950. As regards the decision of Punjab High Court, we need not examine it in details in view of the two decisions of the Supreme Court already noticed by us.

8. It is, therefore, clear that in the present case also it is unnecessary to decide that question as to whether “there need be express or implied agreement to constitute a waiver of first notice within the meaning of Section 113 of the Transfer of Property Act”. For, the appellant did not raise any objection upon the respondent's assertion that the first notice was defective and to the consequent withdrawal and dismissal of the suits. On the other hand, the appellants maintain the notices as defective and at all material times have been insisting that their tenancies are still continuing. This apart Mr. Mitter learned Advocate for the respondent relied on a Bench decision of this Court in Dwijendra Roy v. Jogesh Chandra, 39 Cal LJ 40 : (AIR 1924 Cal 600), noticed by the Appellate Court and pointed out, we think rightly, that the appellants could not be allowed to approbate or reprobate and set up a wholly new and inconsistent plea in the same or in the connected proceeding.

9. Even so, Mr. Deb on behalf of the appellant Malhotra contends that the Appellate Court came to a finding that the first notice was not valid and did not terminate the tenancy of the appellants. But neither any issue was framed nor any opportunity was given to the appellants to meet the point and therefore the whole finding was vitiated. This argument is wholly misconceived. The Appellate Court below has clearly found that the present suits were based on the combined notices of ejectment and for institution of the suits dated 24-2-1964 and not upon the previous notices of ejectment constituting cause of action of the previous suits which were already withdrawn on the ground of defective notice in presence of the appellants. In this connection, on the admitted position taken up by the parties the Appellate Court has merely pointed out the defect of the earlier notices and necessarily concluded that such notices could not have terminated the tenancy in the sense that suits without another notice under Section 13(6) of the West Bengal Premises Tenancy Act, were not maintainable. In fact, we find that the question as to validity or otherwise of the previous notices of ejectment were introduced by the appellants themselves to argue a case that the subsequent notices on which the present suits were based did not constitute waiver. This being so, we fail to see how the appellants can now complain that the finding of the Appellate Court below that the notices given in the previous suits were invalid and did not terminate the tenancy. Alternatively, it also found that if the previous notices were valid they could have at best terminated the tenancy of the plaintiff but the suits could not be filed without again issuing a notice under Section 13(6) of the West Bengal Premises Tenancy Act. Necessarily therefore, in the combined notices given subsequently the notice so far as the termination of the tenancy is concerned would be superfluous but, nevertheless, notice under Section 13(6) would be valid. Since the tenancy shall continue in spite of termination of tenancy on the same terms and conditions of contractual tenancy in accordance with the provision of Section 19(2) read with the definition clause of Section 2 (h), as rightly pointed put by Mr. Mitter, the notice of termination of tenancy under Section 106 of the Transfer of Property Act would be superfluous. But that fact by itself cannot render the whole suit invalid on the ground that the contractual tenancy of the appellants on their own plea already stood terminated by virtue of previous notices of ejectment but not pleaded in the plaint. The appellate Court below, as appears has merely examined the effect of such notices upon the present suit alternatively on the showing of the appellants themselves and concluded that even in such extreme position the respondent could not be non-suited. We, therefore, do not find any substance in the contention raised by Mr. Deb. In our opinion, the Appellate Court below rightly held that the combined notices of ejectment and suits on which the present suits were based were valid and sufficient.

10. This brings us to the question as to reasonable requirement of the disputed premises for the respondent's own use and occupation. We have already seen that both the Courts concurrently found on evidence as a fact that the respondent required the premises reasonably for her own use and occupation. Mr. Banerjee has, however, contended that reasonable requirement is a question of mixed fact and law. In aid of his contention reliance is placed on a decision of the Supreme Court in Madan Lal v. Sain Dass, (1971) 2 SCC 535 : AIR 1973 SC 585 and a Bench decision of this Court in Motilal v. Suresh Chandra, (1973) 77 Cal WN 921. This seems to be a disputed question. But granting that this is so, Mr. Banerjee could not submit any point to show how the Appellate Court below fell into an error of law in its concurrence on finding of fact as to reasonable requirement. Mere insufficiency or inadequacy or improper appraisement of evidence in coming to a finding on such fact as to reasonable requirement cannot involve any error of law so as to leave the question open to this Court to interfere in second appeal. It is not the case of the appellants that the Appellate Court below either exceeded its jurisdiction or ignored certain provisions of law or failed to consider any of the relevant matters provided under the law to constitute a reasonable requirement in its finding on fact. It is also not the case of the appellant that on facts found on evidence no case of reasonable requirement could be deemed to have been established as envisaged under the law. It is therefore unnecessary in this case to examine the question in further details.

11. Mr. Banerjee has, however, further contended that some of the essential facts constituting reasonable requirement in this case were not proved by legal evidence and therefore the reasonable requirement as found by the Courts below could not be held to have been established. Firstly, it is said, that existence of servants have not been proved; secondly, as the number of officers of several companies required to be accommodated in the residential house of the respondent were not proved by producing attendance register and other relevant records of the material time although respondent's own witness admitted that such records and registers were in existence, the court should have drawn an adverse inference against the respondent. Thirdly, it is pointed out that the copy of the balance-sheet produced relating to some of the offices belonging to the respondent were inadmissible in evidence. We do not think there is any substance in any of the contentions raised by Mr. Banerjee. In the first place, the correctness of number of servants or maidservants by any counter evidence adduced by the appellants was not challenged by the appellants denying the number of servants, staffs etc., sought to be established by the respondent. It is, however, said that the Ration Cards were not produced. We do not think Ration Cards can be the sole criterion for judging the number of servants or maid-servants. In the second place, as regards the production of the attendance register showing the number of officers, it appears that the husband of the respondent was examined and registers of 1967-68 were produced. It is, however, admitted by a witness on behalf of the respondent at the time of trial that in 1970 there was also attendance register showing the names and number of officers employed in several companies. But mere failure on the part of the respondent to produce the latest attendance register by itself in all cases would not necessarily lead to an adverse inference against her. Mr. Banerjee, however, cited before us in support of his contention several decisions of the Judicial Committee and of Supreme Court namely, 42 Ind App 202 : (AIR 1915 PC 96). Bilas Kunwar v. Desraj Ranjit Singh, AIR 1966 SC 40, Sahoo v. State of Uttar Pradesh and AIR 1968 SC 1413, Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others . While the proposition laid down in these decisions cannot be disputed, we think they have no application to the facts of the present case. Mr. Mitter has rightly pointed out reiving on Illustration (g) of Section 114 of the Evidence Act that “the Court may” and not shall “presume the existence of certain state of things from non-production of evidence by the person who holds it”. We think whether adverse inference ought or ought not to be drawn will depend upon the facts and circumstances of each case. There is no compulsive element in the provision to draw an adverse inference against a party whenever or wherever it fails to produce document. In this case, both the Courts below on consideration of other corroborative evidence and relevant materials on record along with the attendance register actually produced, were satisfied about the number of employees of the respondent required to be accommodated in her residential premises in connection with her business. It is not the case of the appellants that the respondent had no business or had no necessity of maintaining the required number of staffs also in 1970. We, therefore, do not think in the facts and circumstances of this case, mere failure to produce the attendance register of 1970 has vitiated the entire finding. As regards the copies of the balance-sheet it appears that they were admitted in evidence without any objection. It is fairly established that when a particular document is admitted in evidence without objection by the opposite party the contents of such document though may not be conclusive evidence are also admitted. (See (1972) 1 SCC 9 : AIR 1972 SC 608, C.P Purshothama v. S. Perumal). In our opinion, the judgment of the Appellate Court did not suffer from any of the infirmities sought to be made out by Mr. Banerjee.

12. Then a further point, we think, of some importance is raised on behalf of the appellants that the whole requirement was vitiated for, it failed to consider the most important event namely, the death of the husband of the respondent which took place during pendency of the appeal in the Appellate Court below. It is said that one of the main reasons of the requirement of the respondent was that her husband due to his illness was unable to move from third floor in the rented premises to the ground floor room to attend his office, and he required for that purpose a room on the ground floor for his accommodation so that he may attend his office or business of the several companies which was also to be accommodated on the ground floor of the disputed premises. That element of requirement having been completely non-existent, it is submitted that failure to consider that question has vitiated the entire finding. It is argued that because of such subsequent events such case of reasonable requirement as sought to be established by the respondent no longer exists and therefore she is not entitled to any decree against the appellants. We think, however, that because of the death of the husband at the appellate stage in the Court of Appeal below, the whole case of reasonable requirement of the disputed premises cannot fail. It has been found by both the courts below that the first floor of the premises is required for the accommodation of the respondent and her family members and some maid servants etc. So, the subsequent death of the husband of the respondent cannot have any adverse effect or impact upon the requirement of the respondent of the first floor for her own use and occupation and by the members of her family. As regards the ground floor the appellate Court below did not consider the case of death of the husband of the respondent. It found on evidence that “the ground floor can be used as office rooms and the out-houses and other appurtenances can be used as accommodation for servants, Aiyas and the office staffs. Garages are useful for the plaintiff as she has two cars in her possession. I have given thoughtful consideration over the partial eviction and find that neither feasible nor possible”. The trial court, however, stressed the need for one room for the husband in the ground floor for attending offices of the business concerns of the respondent. But except one room the trial Court equally was satisfied on evidence that the respondent required the ground floor, out-houses etc. for accommodating offices relating to her four business concerns as also her staffs. So, owing to the change of events by the death of husband of the respondent during pendency of the appeal the question would be whether the respondent still would have reasonable requirement of one room for her own use and occupation. If that be the question the court of appeal below would be required to consider the only question of partial eviction. In other words, the court would be required to proceed in accordance with the provisions of sub-section (4) of Section 13 of the West Bengal Premises Tenancy Act to determine the question whether the requirement of the respondent may be substantially satisfied by partially ejecting the appellant from the ground floor of the disputed premises. We are not impressed, therefore, with the argument that whole question of reasonable requirement in respect of both first floor and ground floor has to be decided afresh. As in the judgment of the appellate Court this particular question about the death of the husband has not been expressly considered, we think the appellate court would be required to consider only that question in respect of only ground floor tenancy of the appellant Malhotra. The question of fresh consideration as to reasonable requirement of the respondent in respect of the first floor does not arise. In our opinion, the decision of the court of appeal below regarding reasonable requirement of the respondent in respect of the entire first floor is correct.

13. In the result, the appeal S.A No. 805 of 1971 is dismissed and the judgment and decree passed in title Appeal No. 935 of 1970 is affirmed. We set aside the judgment and decree in title Appeal No. 934 of 1970 in respect of the ground floor of the disputed premises and allow the appeal S.A No. 804 of 1971. We remit the case back only in respect of ground floor with connected garage etc. to the appellate court below for a fresh decision. The Appellate Court will determine the question of partial ejectment in accordance with law and in the light of the observations made above.

14. If necessary, the court may allow the parties to adduce such further evidence both oral and documentary as may be just and proper. If after considering evidence already on the record and such evidence as may be adduced the Appellate Court below is of opinion that such requirement may be substantially satisfied by partial ejectment and the tenant appellant agrees to such occupation the Appellate Court shall pass a decree accordingly and fix a proportionate rent and pass other appropriate orders in accordance with the provisions of sub-section (4) of Section 13 of the West Bengal Premises Tenancy Act, 1956. If the Appellate Court finds that the partial ejectment is not possible it shall pass a decree for ejectment of the tenant appellant from the entire ground floor including portion of the out-houses and garages etc. in occupation of the tenant appellant of the ground floor of the disputed premises. There will be no order as to costs in both the appeals.

15. Let the appeal be disposed of within three months after the receipt of the records from this Court by the Appellate Court below. Let the records be sent down to the Appellate Court as quickly as possible.

16. Sen Gupta, J.:— I agree.

17. Order accordingly.