Rekhabchand Doogar v. J.R D'Cruz

The Judgment of the Court was as follows:—

Buckland, J.:— This is a suit to eject the Defendant from certain rooms in the Plaintiff's house and premises No. 39 Lower Circular Road, and also for damages.

The Defendant was a monthly tenant under the Plaintiff, the rent alleged in the plaint as payable being Rs. 90 a month. On the 30th November 1920 the Plaintiff through his attorney gave the Defendant one month's notice to quit, that is to say, on the 31st December 1920. The Defendant did not quit the premises and the Plaintiff has therefore brought this suit.

This is one of four suits all standing on the same footing, in which the relations between the parties were the same, but the other three have failed because the parties have unsuccessfully pleaded the Rent Act, as they had not complied with the provisions with which they had to comply before they were entitled to the benefit of the Act. In this case also the. Defendant has pleaded to be entitled to relief by reason of the Calcutta Rent Act, and the following issues were settled:

1. Does the Plaintiff bona fide require the premises for his own occupation.?

2. Has the Defendant paid the rent due by him to the fullest extent allowable by the Calcutta Rent Act by the 15th day of the month next following that for which the rent was payable in accordance with the provisions of sec. 11, sub-sec. 5?

3. Has the Plaintiff refused to accept the rent offered, and has the Defendant duly deposited it with the Rent Controller under sec. 11, sub-sec. 4?

4. Is the Defendant entitled to relief under the Calcutta Rent Act?

The real controversy in this case has centred on the first issue, for, under the Calcutta Rent Act, assuming that a tenant complies with those provisions to which reference is made in the other issues, a tenant is not entitled to the benefit of the Act where the premises are bona fide required; by the landlord either for purposes of building or re-building or for his own occupation. In this case the Plaintiff says that he requires the premises for his own occupation, and in order to support that he has made a statement in his notice to quit where he says through his attorney:

“My client requires the said premises No. 39 Lower Circular Road for his own use and occupation inasmuch as he has made arrangements for letting out his present residence No. 37 Canning Street and wants to remove to his said premises No. 39 Lower Circular Road in Calcutta on the 1st day of January 1921.”

What is the Plaintiff's evidence as to this? He says that the Defendant has been in possession of the premises since June 1916, and in or about September 1919 he gave notice to all the tenants in the, house because he says he wanted to let out the whole house on a lease to Macfarlane & Co. The tenants did not quit and his negotiations with Macfarlane & Co. fell through. After that lie entered into negotiations with the Government of Bengal. He wanted to give the whole house to one man, and the Government wanted it for a Survey office and negotiations ensued. Thereupon he again gave notice to quit to the tenants but they paid no attention to that either. In the end in the month of August the arrangements with the Government had to be cancelled as vacant possession could not be given. But meantime there had been friction between the landlord and his tenants in this house, which, I should explain, is divided into some six or seven flats, because he was trying to get rid of them and also because they made complaints with reference to the water supply. It appears that the friction reached such a stage that the parties found their way into the criminal Courts, but the proceedings were eventually dropped.

It is obvious that up to the beginning of August 1920 there was no question whatever of the Plaintiff desiring to eject the tenants because he required the house for his own occupation, and his evidence makes that clear beyond all doubt. Then he says that in the middle of September 1920 his wife gave birth to a child and that thereafter she suffered from fever for which she was attended by a Dr. Banerjee, who has been called as a witness in the case, and that owing to the insanitary conditions due to the presence of a hide godown at the back of the house in Canning Street where the Plaintiff resided, and smell, and the fact that the locality was ill-ventilated, the doctor advised him to go where they could get more light and air. The Plaintiff showed him the house in Circular Road of which the doctor approved. When exactly that took place is not clear. The doctor himself said be could not give the exact time but that it happened two or three months after the Plaintiff's child was born. The doctor says that the Plaintiff's wife suffered from malarial fever and uterine trouble, and that therefore he gave the advice that the Plaintiff should remove.

It has to be observed that is not the reason alleged or even remotely suggested by the Plaintiff in his notice to quit given on the 30th November. The reason there given is that he required the house for his own use and occupation, inasmuch as he had made arrangement for letting out his then residence No. 37, Canning Street and therefore wished to remove. The evidence as to this is that on or about the 12th October 1920 the Plaintiff made an arrangement with Messrs E.D Cooper & Co., of which firm Mr. Cooper has been called, whereby the Plaintiff let out to Messrs Cooper & Co., the whole of the first floor in No. 37, Canning Street at Eg. 1/250 per month. Possession was promised on the 1st January. But mean while the arrangement was that possession would be given of the front large hall and the adjoining rooms and the verandah as from the 15th October for which a charge of Rs. 650 per month would be made until the whole flat was available. At or about the same time the Plaintiff also let a portion of the premises to some other company which has been referred to as the Hume pipe Company. So the position was that he was depriving himself of a considerable portion of the space in his own house in No. 37, Canning Street where he had lived for four years in order to make it over to these mercantile firms or companies.

These are the circumstances with which I have to deal. I find considerable difficulty in appreciating in the Plaintiff's favour the complete change of front from August to the time when the notice to quit was given. I cannot in my mind dissociate what occurred up to August when the Plaintiff wanted to let out the house in No. 39, Lower Circular Road to one tenant from what occurred later. When the notice to quit was given no reference was given to the personal aspect of the matter, but it was based entirely upon the arrangements made with these other tenants for No. 37, Canning Street. It seems to me that the Plaintiff has here based his requirement of the premises in suit on the ground of his wife's health because he feels that the other grounds would not be sufficient to entitle him to say that he bona fide requires the house for his own occupation which it is necessary that I should find for him to obtain an order for possession. From this point of view I am not at all satisfied as to the bona fides of the Plaintiff. Without asserting that he is deliberately untruthful, he has to my mind strained the circumstances in his own favour to the utmost limit. I do not think it is enough that a Plaintiff in order to defeat a plea under the Calcutta Rent Act should merely say that he desires the premises bona fide for his own occupation. The word in the Act is not “desire” but “require.” This in any opinion involves something more than a mere wish and it involves an element of need, to some extent at least. I am unable to see that there is any need on the part of the Plaintiff. He did not put his wife's health forward as a ground for his requirement until later, and so far as his requirements arose from other circumstances, he put himself in the position in which he found himself by letting out part of his residential house in No. 37, Canning Street to these mercantile firms and companies, as I believe, for the purpose of obtaining a substantial rental. I do not think that I should be right in holding that a landlord who has premises sufficient for his requirements should be allowed to eject tenants because he chooses for his own convenience or profit to deprive himself of the use of the premises which he is occupying, and then to say to his other tenants “having deprived myself of the use of the premises which I have hitherto occupied, I therefore require the house in which you live for my own occupation and 1 now propose to eject you.” This, in my judgment, would be to defeat the objects of the Act and I do not think that in such circumstances a landlord can be said bona fide to require the premises for his own occupation. I therefore find that the Plaintiff does not bona fide require the premises for his own occupation.

With regard to the second issue—Has the Defendant paid the rent in accordance with the provisions of sec. 11(5) of the Calcutta Rent Act, and did the Plaintiff refuse to accept it and was it duly deposited under sec. 11(4)—the Defendant has said that for February, March, April and May 1920 he paid the Plaintiff by cheque, but that the rent was not accepted and thereupon it was paid to the Rent Controller. It has been argued that it is the duty of a tenant to offer rent to his landlord every month and obtain every month a refusal from him before lie is entitled to pay to the Rent Controller. I cannot conceive that it was intended by the Act that such a farce should be gone through every month when the relations are such that the landlord refuses to accept the rent, and I think the tenant is justified in paying the rent to the Controller month by month once there has been a refusal by the landlord to accept it.

It is further submitted that the Defendant has not paid the full amount of the rent. In this connection it is right that I should refer to an application which was made at the very last possible stage, i.e, immediately before learned Counsel for the Defendant was about to sum up. In the plaint it is alleged that the monthly rental was Rs. 90. In the written statement it is stated that in May 1920 the Plaintiff demanded rent at the increased rate of Rs. 150 a month. The Defendant refused to pay it and offered three month's rent at the rate of Rs. 110 a month, which he says was the standard rent. The rent in point of fact has not been standardized and there has been no order by the Rent Controller fixing the standard rent. The Defendant also in the course of his evidence relating to the time when Mac Farlane & Co. were on the scene, said that MacFarlane & Co. wanted Rs. 115 a month, and he offered to pay and actually did pay Rs. 115 in December 1919 and January 1920, after which the Plaintiff would not accept the rent. Upon these materials, and though the Plaintiff himself did not say anything about a variation of the agreement as regards the amount of rent, I was asked to allow the plaint to be amended. But the amendment asked for is not a purely formal matter as it was asked for in order to give a further ground to the Plaintiff to defeat the plea under the Rent Act. Learned Counsel for the Defendant was willing to concede it, had it been merely formal and only related to the question of amount, as the Defendant has in fact been paying Rs. 110 to the Rent Controller, but in the circumstances stated he objected to the figure being altered to Rs. 110; and having regard to the stage at which it was asked for, I refused to allow the amendment to be made. But even so, dealing with the facts as they are, I find no evidence of any agreement between the Plaintiff and the Defendant to pay more than Rs. 90 a month. I have referred to all the items of evidence and statements in the pleadings to which my attention was drawn by learned Counsel for the Plaintiff, and though in fact the Defendant did pay Rs. 110 a month to the Controller, I gather that he did so because he wished to put himself on the safe side having regard to the provisions of the Calcutta Rent Act as to the standard rent, but it does not appear that there was any agreement between the parties that the rent should be more at any time than Rs. 90 a month.

I find that the Plaintiff refused to accept the rent offered and that the Defendant has duly deposited it with the Rent Controller under sec. 11(4).

In these circumstances the second issue with reference to sec. 11(5) of the Calcutta Rent Act does not arise.

The Defendant is entitled to relief under the Calcutta Rent Act, and the result therefore is that this suit will be dismissed with costs on Scale No. 2.

Though the evidence was recorded almost entirely in the suit against Mrs. Mendies (No. 274 of 1921), as directed at the conclusion of my judgment in that suit, it should be treated as having been taken in this suit and costs will be taxed accordingly.

Balm Hari Bhutan Dutt, Solicitor for the Plaintiff.

Mr. Gregory C. Moses, Solicitor for the Defendant.

J.N.R

Suit dismissed with costs.