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Attorney(S)
  • Chandan Mukherjee
  • Samir Choudhury
  • Saktinath Mukherjee
  • Sadhan Roy Choudhury
  • S.P.Roy Chowdhury
  • Ranadeb Choudhury
  • Dilip Kumar Mondal
Judges
  • Mr. Bhagabati Prosad Banerjee
  • Mr. Amal Kanti Bhattacharji, JJ.
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Attorney(S)
  • Chandan Mukherjee
  • Samir Choudhury
  • Saktinath Mukherjee
  • Sadhan Roy Choudhury
  • S.P.Roy Chowdhury
  • Ranadeb Choudhury
  • Dilip Kumar Mondal
Judges
  • Mr. Bhagabati Prosad Banerjee
  • Mr. Amal Kanti Bhattacharji, JJ.
Acts
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Smart Summary

Case Summary — Judgment by Banerjee, J. (with concurring note by Bhattacharji, J.)

Factual and Procedural Background

The respondent landlady (originally represented by Dhiresh Chandra Sen as executor and later amended to Dr. Shila Sen) instituted a suit on 11.4.1984 for eviction of the defendant-tenant from premises No. 31/1, Lake Avenue, Calcutta-26 (let at Rs. 500 per month on English calendar) on the grounds of default in payment of rent, change of user (alleged conversion from residential use to use as a godown and film laboratory), nuisance and annoyance, material alterations to the Corporation water main, and the plaintiff's reasonable requirement of the suit premises for building/rebuilding and for own use and occupation. A notice to quit requiring vacation by the expiry of January 1984 was alleged to have been served.

The learned Second Additional Munsif, Alipore (trial court) dismissed the suit. On appeal, the 3rd Additional District Judge, Alipore (lower appellate court) in Title Appeal No. 276 of 1989 reversed the trial court and decreed the suit in favour of the landlady by judgment dated 17th September, 1990. The tenant filed the present appeal (a second appeal) challenging that reversal.

The tenant filed a written statement denying material allegations, and the trial court framed numerous issues (the opinion reproduces the issues relevant to this appeal). The High Court heard the second appeal within the limits imposed by recent amendments to Section 100 of the Civil Procedure Code.

Legal Issues Presented

  1. Is the suit maintainable?
  2. Is the notice to quit legal, valid and sufficient, and was it duly served?
  3. Are the defendants defaulters in payment of rent?
  4. Does the plaintiff require the suit premises reasonably for her own use and occupation?
  5. Have the defendants used the premises let out for residential purpose for any other purpose for more than four months without the consent in writing of the landlady?
  6. Is the plaintiff entitled to get a decree for eviction as prayed for?
  7. To what relief, if any, is the plaintiff entitled?

Arguments of the Parties

Appellant (Defendant-Tenant) — Mr. Sakti Nath Mukherjee

  • The lower appellate court, having found default, should have allowed the tenant to make deposits in installments under Section 17(2A) of the West Bengal Premises Tenancy Act (the Act). The court had the power to grant instalments.
  • Originally the tenancy was granted in the name of the partner (for residential purpose) but was later transferred to the partnership firm, which indicates the tenancy was commercial (non-residential) in character; part of the premises was used residentially and part non-residentially.
  • Even in cases of change of user, eviction should not be granted unless the court finds that the dominant purpose was non-residential.
  • With respect to reasonable requirement of the plaintiff-landlady, it was argued that there was no reasonable requirement: the landlady and her husband allegedly shifted to and had a house in Chittaranjan Park, New Delhi; her husband had employment/position connected with a World Bank-affiliated body; the daughter had married and lived outside West Bengal; the son had gone to the U.S.A and settled there. These facts were relied upon to argue absence of bona fide reasonable requirement.
  • The appellant contended that facts relied upon by the landlady were subsequent events or contrary to earlier pleadings and ought to negate the plaintiff's claim of reasonable requirement.

Respondent (Plaintiff-Landlady) — Mr. Ranadev Chowdhury

  • There was a clear case of default by the tenant. The lower appellate court rightly considered pre-suit invalid deposits under Section 22 of the Act and the admitted arrears in the perspective of Section 17 (the tenant had not deposited admitted arrears along with any application under Section 17(2)).
  • The tenant had not filed a valid application under Section 17(2), and pre-suit invalid deposits could not be utilized to entitle the tenant to relief under Section 17(4); Section 17(2A) could not be invoked to cure deposits made under Section 22.
  • Reliance was placed on a decision reported in 79 CWN 1017 (Hindustan Industrial v. Chajdi Prasad More, as cited in the opinion) for the proposition that deposits not in conformity with Section 22 are invalid for the purposes of Section 17(4).
  • On reasonable requirement, the landlady disputed the appellant's factual assertions (husband’s residence/occupation, daughter's marriage and residence, son’s stay abroad) and relied upon evidence and affidavit material considered by the courts below; she relied also on a Division Bench decision (Himangshu Bikash v. R.M. Dutta, 1991 (1) CLJ 392) upholding married daughter's requirement.
  • The respondent maintained that the lower appellate court's findings on default and reasonable requirement were justified on the evidence and should not be disturbed.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
(1) (1977) 2 SCC 646 : AIR 1977 SC 1120 Principle that notices to quit should be liberally construed and not defeated by minor defects. The court relied on the principle of liberal construction of notices to conclude the notice expiring with January 1984 was valid and that defendants understood its purport.
(2) 46 CWN 366 Support for construing a notice which specifies a calendar date as expiring with that date (example given: 30th Chaitra construed as expiring with that date). Used as part of the body of authorities to support liberal construction of the notice to quit in the instant case.
(3) AIR 1952 Cal 19 Cited in the context of construing a direction to vacate by a specific date as expiring with an earlier month (as an example supporting liberal construction). Considered among other authorities to justify construing the notice in favour of validity rather than finding it defective.
(4) AIR 1944 Bombay 181 Illustration of construing calendar-based notices to quit (cited in relation to (3)). Part of the precedent support for liberal construction when dates and traditional calendar months are involved.
(5) AIR 1973 Patna 286 Emphasised liberal construction; a notice to vacate on or before the last date of a month of tenancy is a good notice. Relied upon to reinforce the court's conclusion that the January 1984 notice was effective.
(6) 60 CWN 308 Considered a notice determining tenancy on a specified date (example: 1st May) as a good notice. Used with other authorities to support the legal sufficiency of the notice in the present case.
(7) 87 CWN 278 (Calcutta High Court) Held that a notice not strictly accurate will still be good if the inaccuracy is not for any fraudulent purpose. The court found no fraudulent purpose in the inaccuracy complained of and applied this principle to uphold the notice as valid and duly served.
(8) Hindustan Industrial v. Chajdi Prasad More (reported in 79 CWN 1017) Held that deposit of rent not in conformity with Section 22(1)(2) of the Act is an invalid deposit for purposes of Section 17(4). Respondent relied on this authority to argue pre-suit invalid deposits could not be treated as valid for securing relief under Section 17; the court noted this authority in the context of the parties' submissions.
(9) Himangshu Bikash v. R.M. Dutta, 1991 (1) CLJ 392 Upheld a married daughter's requirement as relevant to the landlord's reasonable requirement case (Division Bench consideration of reasonableness). The respondent relied on this decision to support the landlady's pleaded reasonable requirement; the High Court referred to the decision when discussing the standards for assessing reasonable requirement.

Court's Reasoning and Analysis

The court conducted a multi-faceted analysis addressing (i) the validity of the notice to quit, (ii) default and deposit issues under the West Bengal Premises Tenancy Act, (iii) change of user, (iv) the plaintiff's reasonable requirement, and (v) the limited scope of interference in a second appeal.

Notice to quit: The court examined a series of precedents emphasising liberal construction of notices to quit and the principle that minor inaccuracies do not render such notices defective unless proved to be fraudulent. Applying those authorities and examining the notice (Ext. 14), the court concluded there was no fraudulent inaccuracy and that the notice clearly communicated a one-month notice expiring with January 1984. Therefore the notice was held to be legal, valid, sufficient and duly served (issue No. 2 answered in the affirmative).

Default and deposit issues: The lower appellate court had reversed the trial court on the question of default, relying upon the doctrine that deposits of admitted rent within the statutory period (and in conformity with the Act) are essential when an application under Section 17(2) is to be treated as valid. The High Court noted that pre-suit deposits made not in conformity with Section 22 were treated by the lower appellate court as invalid for the purpose of Section 17 relief; the tenant’s application dated 28.5.1984 could not be construed as an application under Section 17(2). The High Court emphasised that these are disputed questions of fact and law mixed with fact which would require detailed evidence appraisal, a task normally beyond the limited scope of a second appeal unless a finding is perverse.

Change of user: The court recognised that the onus of proving change of user lay on the landlady. The opinion records that the landlady in her deposition could not satisfactorily explain the original purpose of the tenancy and therefore did not discharge the onus of proof. On that basis the court expressed the view that the lower appellate court was not right in holding that there had been a change of user sufficient to warrant eviction on that ground.

Reasonable requirement: The court reviewed the evidence considered by the lower appellate court — including the landlady’s affidavit and oral evidence about her residence, employment transfer to Calcutta in 1985, the husband’s retirement and occasional presence in New Delhi, the daughter's matrimonial residence, and the son’s temporary training in the U.S.A. — and concluded that the lower appellate court’s finding that the landlady reasonably required at least part of the premises (three living rooms, sitting/dining room, servant’s room) was supported by evidence. The High Court stressed that the question of reasonable requirement is one for the landlord to assert and for the court to determine as to reasonableness; it is not the function of the court in an eviction suit to prescribe where the landlady must stay when in Calcutta (e.g., hotel or relatives') or to disqualify reasonable requirement because the landlady had a house in another city.

Scope of second appeal and perverse finding standard: The court reiterated the limited scope of a second appeal under the amended Section 100 CPC — interference is permissible only when a substantial question of law arises or a finding of fact is perverse. The High Court held that the lower appellate court was the last court of fact and that on the present record no case was made out showing perverse findings that would justify upsetting that court’s conclusions on default and reasonable requirement. The court declined to reweigh disputed evidence on matters properly decided by the appellate court.

Net result of the analytical balance: Although the High Court found that change of user had not been sufficiently proved by the landlady, the court nevertheless concluded that there was no merit in the second appeal because the lower appellate court’s findings on other grounds (notably default and reasonable requirement) were supportable on the evidence and not amenable to reversal in a second appeal.

Holding and Implications

Final Holding: The appeal is DISMISSED. The judgment and decree dated 17th September, 1990 of the 3rd Additional District Judge, Alipore in Title Appeal No. 276 of 1989 is hereby AFFIRMED.

Direct consequences for the parties:

  • The eviction decree in favour of the landlady as passed by the lower appellate court remains operative subject to a temporary procedural stay: the operation of the order was stayed for four weeks from the date of the High Court order.
  • The appeal was dismissed without any order as to costs.
  • The court directed that a xerox copy of the order be furnished to the parties on the usual undertaking.

Broader implications:

The court reiterated the limited scope of a second appeal under the amended Section 100 CPC (interference only where a substantial question of law or perversity of fact-finding exists). The opinion does not purport to lay down any new precedent beyond applying established principles (e.g., liberal construction of notices to quit, burdens of proof regarding change of user, and the limited remedial powers in respect of invalid pre-suit deposits). No new broad legal principle was announced that would amount to a binding change of law in this opinion.

Concurring note: Bhattacharji, J. agreed with the judgment.

Show full summary ...

    Calcutta Film Library v. Dr. Shila Sen .

    Banerjee, J.:— This is an appeal filed a tenant appellant against the judgment and decree passed by the 3rd Additional District Judge, Alipore in Title Appeal No. 276 of 1989 on 17th September, 1990 reversing the judgment and decree passed by the Second Additional Munsif Alipore passed in Title Suit No. 170 of 1986 on 29th April, 1989.

    2. The respondent landlady filed a suit for eviction of the defendant appellant from the premises No. 31/1, Lake Avenue, Calcutta 26 on the ground of default, change of user, nuisance and annoyance and reasonable requirement of the suit premises. The suit was dismissed by the learned trial Judge but on an appeal filed by the plaintiff-landlady all the findings of the learned trial Judge were reversed and the suit was decree in favour of the respondent landlady. This appeal is at the instance of the defendant-tenant. Originally one Dhiresh Chandra Sen, the Executor to the estate of Giribala Devi filed the suit on 11.4.84 before the learned 3rd Court of Munsif contending, inter alia, that defendant No. 1 was a tenant in the ground floor of the premises No. 31/1, Lake Avenue, Calcutta-26 in respect of the four living rooms, two bath-cum-privy, one kitchen, one varandah and one servant-room fully detailed and described in the schedule to the plaintiff hereinafter referred to as the suit premises for brevity at a monthly rental of Rs. 500/- payable according to English-calender, that though the suit premises was let out for residential purpose of defendant No. 2 the partner of defendant No. 1, it was converted into a godown of Kanchan Fan and also a film Laboratory without the consent in writing from the landlady, that defendants made material alterations in the Corporation water main causing disruption of supply of water in the premises, that the defendants are guilty of conduct of nuisance and/or annoyance that the defendant acted in clear violation of the clauses (m), (o) and (p) of section 108 of the Transfer of Property Act, that the roof of the building requires extensive repair for which the immediate of the second floor are required to come to ground floor and accordingly the plaintiff required the suit premises reasonably for building and rebuilding proposes and also for own use and occupation, that a notice to quit was sent to the defendants requiring them to vacate the suit premises on the expiry of the month of January, 1984 and that as no heed was paid to the said notice, the plaintiff was constrained to institute the suit praying for eviction of the defendants from the suit premises and also for mesne profits. During the pendency of the suit the probate of the will executed by deceased Giribala Devi was obtained and accordingly the plaint was amended by order No. 18 dated 25.7.85 and the plaintiff Dr. Shila Sen brought on record and the plaint was suitably amended incorporating the plaintiff's reasonable requirement for her own use and occupation. The tenant appellant contested the suit by filing written statement. The learned Judge framed 73(?) issues. For the purpose of this appeal the relevant issues are given below:—

    1) Is the suit maintainable?

    2) Is the next notice to quit legal? Valid and sufficient? Was it duly served?

    3) Are the defendants defaulter, in payment of rent?

    4) Does the plaintiff require the suit premises reasonably for her own use and occupation?

    5) Have the defendant used the premises, let out for residential purpose, for any other purpose for more than four months without the consent in writing of the landlady?

    6) Is the plaintiff entitled to get decree for eviction as prayed for?

    7) To what relief, if any is the plaintiff entitled?

    The defendant appeared and contested the suit after filing written statement denying the material allegations made in the plaint and it has been specifically stated that the plaintiff does not require the suit premises reasonably for her own use and occupation, that the defendants are not defaulter in payment of rent and that the notice of ejectment is not legal, valid and sufficient.

    3. With regard to the validity of the notice to quit, the held(?) that the argument of the Learned lawyer for the appellant on this score is that the notice is perfactly within the meaning of the section 13(b) of the W.B.P.T Act as it is one month's notice expiring(?) with the month of tenancy. Admittedly the tenancy as according to English month and the defendant was required to vacate the premises within 31.1.84 i.e the last day of English month. So the learned lawyer placed reliance on a series of cases in support of his contention that the notice to quit must be construed not with a desire to find faults in it, which would render it defective. This principle was laid down by their Lordships of the Supreme Court, in (1) (1977) 2 SCC 646 : AIR 1977 SC 1120. But the Ld. lawyer of the respondents panted but that in the cited decision the tenants were required to vacate with October, 1962 failing which they work to be construed as the trespasser from 1.11.62 So the ld. lawyer tried to different's to the present case from the case discussed by their lordships of the notice is liberally construed the intention of the landlady to terminate the tenancy on the expiry of the month of January 1984, and not earlier, is quite evident. Such a situation was discussed by their Lordships in the case reported in (2) 46 CWN 366 whose the notice required to quit within 30th Chaitra. Their Lordships viewed that it was to be construed as to quit with the expiry of that date i.e 30th Chaitra. A similar case was discussed in the decision reported in (3) AIR 1952 Cal 19 where a direction to vacate by 1st Magh was construed as a direction to vacate within Poush in (4) AIR 1944 Bombay 181 Division Bench of the Bombay High Court also construed a notice asking to quit on or before date, on which the tenancy expires. In (5) AIR 1973 Patna 286 also liberal construction of the notice was emphasised and it was concluded that a notice to vacate on or before last date of a month of tenancy was a good notice. A similar case was discussed in (6) 60 CWN 308 and considered the notice of determination on 1st May as a good notice. The Division Bench of the Calcutta High Court in (7) 87 CWN 278 viewed that if the notice is not strictly accurate it will be good and effective in law, if it is provided that in accuracy is not for any fraudulent purpose.

    4. So after a careful analysis of all these cases and the notice in question (Ext. 14) I hold and dude that fraudulent purpose has not been proved with regard to the alleged in accuracy. On the other hand, from the notice it is sufficiently clear that it is one month's notice expiring with the month of January 1984 and the defendants had no difficulty in understanding the purport of the notice. So I hold and conclude that the Ld. Munsif did not consider all these aspects and case to an erroneous decision in holding that the notice was not legal, valid and sufficient. In setting aside this finding the Ld. Munsif I hold and conclude that the notice is legal, valid and sufficient and it was duly served. So the point No. 2 is answered in the affirmative.”

    5. The trial court answered all the issues in favour of the tenant appellant and against the respondent landlady. The lower appellate Court which is the last court of fact reversed, the issue No. 4. The lower appellate Court held with regard to the issue relying upon the certain decision of this Court that deposit of the admitted rent within statutory period. i.e along with application under Section 17(2) of the West Bengal premises Tenancy Act considered to be an essential part, so when it was indicated that there were admitted arrears and the tenant defendant failed to deposit the same with the application under Section 17(2) of the said Act. The application filed by the tenant on 28.5.1984 could not be construed as an application under Section 17(2) of the said Act. Accordingly the lower appellate Court found that the finding made by the learned trial Judge on the issue was not tenable and it was held that the appellant was defaulter in payment of rent and hence the plaintiff landlady was entitled to get eviction under Section 13(1)(i) of the said Act. With regard to issue of the reasonable requirement the trial court, inter alia, held “Admittedly, the plaintiff Shila Sen is getting Rs. 500/- p.m as house rent from the defendants. From evidence of the P.W 1 it is seen that the plaintiff Shila Sen and her daughter are getting Rs. 4640/- p.m and Rs. 2000/- p.m respectively as salary and Honorarium. In short the income of the plaintiff, and her daughter is more than Rs. 7000/- p.m when this is, had the plff. any present need and elevent of need for accommodation in Calcutta, she could have certainly hired an accommodation on some reasonable rate of rent during the pendency of the suit. When this is so, it can be safely said that the plaintiff has got not need and/or no intention to reside in Calcutta alone or with any of her family members like husband, son or daughter. From evidences of the P.W 1 and 2 it is seen that the plaintiff has been residing all along with all her family members. Considering the above, I answer the issues Nos. 8 and 9 in favour of the plaintiff an 1 the issues Nos. 10 and 11 against the plaintiff.

    6. The lower appellate court on consideration of the evidence on record held that the requirement of the landlady was reasonable and the plaintiff-landlady required at least 3 living rooms and considering the status of the landlady and relation a sitting room as well as dining room was necessary. Similarly, servant's room was also a reasonable requirement. So keeping in mind the facts and circumstances of the case, the lower appellate court held that the landlady had urgent need of accommodation and as such was entitled to get a decree for eviction. In this connection the lower appellate court had considered the fact that the landlord's husband had a house in New Delhi and that on every material point the lower appellate court on assessment of evidence came to a conclusion that the requirement was just and reasonable. With regard to issue regarding change of user the lower appellate Court have held that the tenancy was for residential purpose and without consent and permission from the landlady there was admitted changer of user in contravention of the provision of law.

    7. Mr. Sakti Nath Mukherjee, learned Advocate appearing on behalf of the appellant contended in the first place that when the lower appellate Court found that there was default in reversing the finding or the learned trial Judge in that event the lower appellate Court should have allowed the tenant appellant to make deposit in accordance with the provision of Section 17(2A) of the said Act under which the court was competent to grant instalments. Next it was submitted that originally the tenancy was granted for residential purpose in favour of the partner of the appellant firm but subsequently, the tenancy was transferred from the name of the partner to the name of the partnership firm and that it is clearly indicative of the fact that the tenancy was for commercial and not residential purpose and as a matter of fact it was admitted that the part of the tenanted portion is used for residential by the partner of the firm and rest is being utilised for non-residential purpose. In this connection it was submitted that even in case of change of user of the premises the court shall not grant a decree for eviction on the ground of change of user unless the Court finds that the dominant purpose was non-residential. With regard to reasonable requirement of the plaintiff landlady it was submitted that there was no reasonable requirement of the landlady in view of the fact that therein on an application for recording subsequent events for assailing ground for reasonable requirement taken by the plaintiff-respondent. In the said application it was alleged that tenant appellant had definite information that the landlady and her husband were staying at Chittaranjan Park, New Delhi in a two storied building. In which they were shifted about two years ago and not only they purchased the said house they were the absolute owner of the said property. It was further stated that the husband of the landlady is working as an ember of Steering Committee of World Bank. Non-Government Organisation and that he did not have any intention to give up her job in near future and it was stated since the husband of the landlady had a house in New Delhi he had to intention whatsoever to come to Calcutta and to settle down in Calcutta permanently. It was further alleged that the landlady had been working as an Assistant Editor of Indian Council of historical Research, New Delhi and that she had no intention to come back to Calcutta taking premature retirement from the service. It was further alleged that the daughter of the landlady had been married during the pendency of the ejectment case and had been staying with her husband cutside West Bengal and she runs her own business there. With regard to son of the landlady it was alleged that the said son had gone to U.S.A during the pendency of the case and he had permanently settle down in U.S.A and had not intention to come back to India in near future. This fact was controverted by the plaintiff landlady and stated that the daughter of the plaintiff was married in Calcutta and her son after completion of his studies in Jadavpur University and after being employed in Calcutta had gone to U.S.A on a temporary training at the instance of his employer at Calcutta. It was further stated by her that she had been transferred to Calcutta during the year 1985 and thereafter had been Working in Calcutta. Her husband has already retired from the service of Organisation of Voluntary Agency, for Rural Development. It was specifically avered that all these facts which had been stated in the said application had been taken into consideration either by trial court or by lower appellate Court, after going through both oral and documentary evidences. It was further stated by her on affidavit that she occasionally visited New Delhi to meet her husband as well as for official works. It was denied that they were shifted two years ago to Chittaranjan Park, New Delhi or that purchased the said house two years ago as alleged. It was stated that the said house was constructed by her husband as long back as in 1975 and that her husband has been residing there since 1984 and that these facts are already on record either in pleadings or in evidences oral or documentary. It was further denied that her husband has been working as a Member of Steering Committee of World Bank Non-Government Voluntary Organisation and that she had no intention to give up the job at all. It was further stated by her that her husband was now an honorary Member of the Committee of Non-Government Organisation (NGO's from South Asia) in the field of Rural Development affiliated to World Bank and that this membership is neither an assignment nor a job. It was denied that her husband had no intention to come back in Calcutta and settle here. It was emphatically stated by her on affidavit that she is posted in Calcutta and working in Calcutta since 1985 as an Associate Editor of Indian Council of Historical Research having its Head Quarter in New Delhi and this facts are allready on record and should not be construed as subsequent events. It was further submitted that her daughter had been married during the pendency of the suit having her matrimonial residence at Calcutta. It had been denied that she had been staying with her husband and running her own business from outside West Bengal. With regard to the son's requirement she had emphatically denied that her son had permanently settled down in the V.S.A and had no intention to come back to India. On the basis of the facts stated in the application Mr. Mukherjee stated that the landlady did not reasonably require the suit premises.

    8. Mr. Ranadev Chowdhury, learned Advocate appearing on behalf of the respondent landlady submitted that there was a clear case of default committed by the appellant. It was submitted that lower appellate Court rightly considered the pre-suit invalid deposit under Section 22 of the said Act in the perspective of Section 13(1)(i) of the Act. It was submitted that there was pre-suit invalid deposit for several months in the years 1982, 1983 and 1984 and that the lower appellate court considered the admitted arrears in the perspective of Section 17 of the said Act since Admitted arrears were not deposited. Further it was pointed out by Mr. Chowdhury that the appellate court rightly held that there was no application under Section 17(2) of the said Act for the purpose of granting any relief to the tenant. It was submitted that on consideration of the aforesaid defaults in their individual perspective the finding of the lower appellate court could not be questioned. It was further submitted by Mr. Chowdhury that pre-suit invalid deposit could not be made under section 17(2A) of the said Act so as to entitle the appellant to get the relief under Section 17(4) of the said Act. Relief under section 17(2A) of the said Act was limited to deposit relating to Section 17 only cannot extend to deposit under Section 22 of the said Act. In this connection reference was made to the decision of this Court in case of (8) Hindus than Industrial v. Chajdi Prasad More reported in 79 CWN 1017 in which it was held that the deposit of rent not in conformity with Section 22(1)(2) of the said Act was invalid deposites for the Purpose of Section 17(4) of the said Act With regard to reasonable requirement is concerned it was submitted that the case of the responsible requirement was brought in before the trial court on the strength of amendment of the plaint and that it was further submitted that the details of the requirement were highlighted. With regard to the appellant's case it was submitted that at the stage of hearing of the suit the landlady's son who was a student of Jadaypur University and in the pendency of the suit he passed out and was employed in Calcutta, thereafter went to the U.S.A for training and that there is no question of her son residing permanently in U.S.A With regard to her daughter's requirement it was submitted the daughter have been married in Calcutta and residing in Calcutta after marriage and that with regard to married daughter's requirement reference was made to a Division Bench judgment of this Court in the case of (9) Himangshu Bikash v. R.M Dutta, reported in 1991 (1) CLJ 392 wherein married daughter's requirement was upheld. Mr. Chowdhury submitted relying upon the finding of the lower appellate Court as also the facts stated on affidavit by the landlady wherein the appellant's version was denied and disputed.

    9. The scope of the High Court in Second Appeal has been limited by effecting amendment in Section 100 of the Civil Procedure Code. Now the jurisdiction of the High Court is only confined to entertain such appeal as involves as substantial question of law specifically set out in the Memorandum of Appeal and formulated by the High Court. Only in a case where there is substantial of law, the High Court can interfere. At least an important question of law must be there for the purpose of intervention of High Court in Second Appeal. The trial Court have held that there was no default, there was no change of user of the premises and there was no reasonable requirement of the plaintiff-landlady. Of course, it is the judgment of reversal and that within the limited scope of Second appeal the High Court can only interfere with the finding of the fact in a case where the findings are perverse. In second Appeal the High Court cannot go into the evidence in details to find out whether the finding arrived at by the lower appellate court was correct or not or whether on the basis of the evidence on record a different view could be taken or not. The lower appellate Court is the last court so far as the finding of fact is concerned and that before us no case has been made out that the findings of the lower appellate court are perverse. There are evidence on record and on the basis of the evidence on record the trial court has taken one view whereas the lower appellate Court has taken a contrary view. Question is whether in second appeal it would be proper on the part of the court to weigh the evidence to find out the correctness of the findings made by the lower appellate court. If the lower appellate Court have made a clear finding that the appellants were defaulter in payment of rent and that as the deposit for the admitted period was not made, application would not be construed as an application under Section 17(2) of the said Act. The view of the lever appellate Court was that the deposit which are post suit relief could be granted but so far as pre-suit invalid deposit is concerned the same could not be rectified and/or no relief could be granted in respect thereof. In any event these are highly disputed question of fact and for consideration whereof the evidence in details has to be gone into which, in our view, could not be decided in the scope of the second appeal. If the facts are undisputed and if it involves at least mixed question of law and fact, the same could be examind in second appeal. True, the finding of the lower appellate Court is that the granting of tenancy in favour of the firm on the face of it did not indicate the tenancy was for non-residential. It is clearly evident that the landlady in her deposition stated that she did not know whether the tenancy was granted for residential purpose or for non-residential purpose. Onus of proof of change of user was on the landlady. But such onus of proof was not discharged and in her evidence she could not tell what was the real purpose for which tenancy was granted. Accordingly we are of the view in the absence of discharge of onus of proof a particular amount or fact of finding of the lower appellate court had been vitiated and we are of the view that the lower appellate court was not right in holding that there had been change of user for which there should be an order for eviction. In order to get a decree of eviction on the ground of reasonable requirement the case has to be made out by the landlord. In the instant case, a case had been made out by the landlady, and that the power of the court is to determine whether the requirement was reasonable or not and this question has been considered by the Division Bench of the court on which one of us was party in Himangshu Bikash's case (supra) and that the court while determining the reasonableness of requirement in not to act as question of the landlady, the court is only concerned about the reasonableness of requirement. In the absence of any specific evidence that son has left for USA for good, and the landlady and her husband had no intention to come to Calcutta, the requirement of the landlady could not be said to be unreasonable. It is for the landlady to decide where to stay. On the basis of the evidence on record which were found favour by lower court that the plaintiff landlady stays in Calcutta for the purpose of her service. Such a finding of fact based on some evidence could not be interfered with by the High Court in Second Appeal. We are of the view that the view of the learned trial Judge that the landlady with her income and with her daughter's income could have hired an accommodation on some reasonable rent and that would satisfy her requirement if ex facie purpose. It is not for the court to suggest in a suit for eviction on the ground of reasonable requirement that landlady could have hired an accommodation on some reasonable rent or that since because the landlady are staying with her relations and there could not be any reasonable requirement for the landlady. It is for the landlady to decide where to stay and even assuming that the landlady stays permanently in Delhi and frequently comes to Calcutta that is also her reasonable requirement. Inasmuch as when the landlady comes to Calcutta the had a right to reside in her own house and it is not for the court to suggest while she would come to Calcutta, she may stay in hotel or some friend's or relation's house. We are of the view that since husband and landlady had a house in Delhi it cannot be said that they had no reasonable requirement in her Calcutta house. In the present day society a person may have house in Delhi and Calcutta and that since because he had house in Delhi she cannot have any reasonable requirement in respect of Calcutta property. Within the scope of reasonable requirement it does not appear such reasonable requirement must be for a permanent and continuous need. In that event it is unnecessary to go into the question inasmuch as there had been a clear finding of the fact by the lower appellate Court, on the basis of assessment on evidence on record. The subsequent facts which are sought to be brought in this appeal on the basis of an application appears to be not subsequent but these facts were there before the courts below, as such those are not subsequent and on the basis of those subsequent events the findings of the lower appellate court could not be interfered with. The same fact was considered.

    10. We are of the view that on the basis of the evidence on record it was impossible on the part of any court to hold that the son who had been sent for training to U.S.A will not come back to Calcutta to stay with his wife and that the married daughter cannot come to Calcutta when her parents have a home in Delhi. These are all questions of fact and that we do not find any substantial question or any question of law which confers jurisdiction upon this Court to interfere with such finding of fact.

    11. Accordingly, we do not find any merit in this appeal. Appeal is dismissed without any order as to cost. Judgment and decree passed by the lower appellate Court dated 17th September, 1990 passed in Title Appeal No. 276 of 1989 passed by the 3rd Additional District Judge, Alipore he is hereby affirmed. As prayed for let the operation of the above order be stayed for four weeks from date. Let a xeroxed copy be given to the parties on the usual undertaking.

    12. Bhattacharji, J.: I agree.

    13. S.K.G

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