Satyabrata Sinha, J.:—This appeal arises out of a judgement and decree dated 3.10.94 passed by a learned single Judge of this Court in Suit No. 755/85 whereby and whereunder the suit of the plaintiff-respondent claiming a decree for eviction against the defendant-appellant on the ground of her bona fide requirement was decreed.
2. The fact of the matter is not much in dispute.
3. The defendant was inducted by the plaintiff in the premises in question namely Flat No. 2 (now known as B), Gem Building, situated at 5.B, Russel Street, Calcutta. The flat consists of two bedrooms with attached baths, one sitting cum dining hall, a kitchen and a balcony, one garage and one servants' room and an attached bath covering a total carpet area of 1400 sq. ft. The monthly rent payable by the defendant to the plaintiff was Rs. 1400/- P.M The husband of the plaintiff was a Manager in Angus Jute Company Ltd. and he was murdered on 1.11.1983 The plaintiff who is a widow having two married daughters was allowed to occupy the bungalow allotted in favour of her deceased husband for some time. The plaintiff being in need of a residential occupation for her own as her daughters are married, served Notice dated 15.12.1984 under s. 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act) and s. 106 of the Transfer of Property Act. The plaintiff had to vacate the said bungalow in December, 1984, and started living with her elder daughter and son-in-law at 27B, Hindusthan Hoad, Calcutta-700029. The suit for eviction on the aforementioned ground of bona fide requirement was filed on 3.12.1985
4. The defendant having been served with the notice and having entered appearance filed an application purported to be under Or. 7 R. 10 and 11 of the Code of Civil Procedure alleging inter alia, therein that the plaint be rejected and/or the same be returned to the plaintiff for filing the same in proper court as allegedly the plaintiff had deliberately put the valuation of the suit on a higher side. An application under s. 17 of the said Act was also made on the same day.
5. By an order dated 1.9.1986 R.N Pyne, J. directed return of the plaint but no order was passed on the application made under s. 17 thereof. A special leave petition was filed against the said order and by a judgement dated 4.8.1987 the aforementioned order dated 1st September, 1986 was set aside by the Supreme Court.
6. The defendant filed his written statement denying and disputing the claim of the plaintiff. Thereafter an application under Chapter-XIIIA of the Original Side Rules was filed on 1.9.1987 An interim order was passed on 15.9.1987 directing deposit of arrears of rent from June, 1984 to January, 1985 together with statutory interest in instalments. The defendant filed application for extension of time to file written statement. After the written statement was filed, the issues were framed by Hazari, J. on 29th February, 1988. An application under s. 17(3) of the said Act was taken out on 21.3.1988 which was heard but the judgement thereof was reserved which was ultimately dismissed on 23.3.1989 The suit was directed to appear by Padma Khastagir, J. under the heading, ‘To be mentioned’ on 25.4.1991, and by an order dated 26.4.1991 the suit was directed to appear on 28th May, 1991 for hearing. An application was taken out by the defendant for dismissal of the suit on the ground of waiver as the plaintiff had allegedly accepted rent during pendency of the Suit. Examination-in-chief of the plaintiff commenced on 28.5.1991 On 30.5.1991 an application for amendment of the written statement was moved and was allowed. The application for dismissal of suit by the defendant was dismissed as not pressed. The plaintiff was examined and cross-examined on 31.5.1991 and 7.6.1991 whereafter the case could not be heard for a long time and again it was mentioned on 3.3.1992 whereupon 6.3.1992 was fixed for hearing.
7. On 7.3.1992 the plaintiff allegedly entered into an agreement for sale with one Vinod Sharma in respect of fiat in question for a consideration of Rs. 3,25,000/-. Allegedly a sum of Rs. 25,000/- was paid on 9.3.1992 but according to the said Vinod Sharma, the original receipt and confirmation of oral agreement by letter were lost in Taxi for which a First Information Report was lodged. The plaintiff was operated at Ripon Nursing Home on 19.4.1992 However, on 24.4.1992 the said Vinod Sharma came to learn from a land broker (without disclosing any name) that the plaintiff was no longer interested in selling the flat to him for which alleged enquiry was made.
8. The plaintiff was discharged from Nursing Home on 27.4.1992 and allegedly found that a sum of Rs. 25,000/- has been deposited in her account in State Bank of India upon discovery whereafter correspondences were made between the plaintiff and the respondent between 29.4.1992 and 10.8.1992 as a result whereof the State Bank returned the Cheque in question to Federal Bank which was again returned back to the State Bank of India. On 25.5.1992 the suit was released by Khastagir, J. and evidence treated as examination DE BENESSEE. Although the matter was mentioned before Mr. Justice Roy, ultimately the suit was assigned before the learned trial Judge.
9. In view of the pleadings of the parties, issues were settled on 29.2.1988 Additional issues were also settled on 3.7.1992 which are as follows:—
“Issues dated 29.2.88
1. Has this Court jurisdiction to try the Suit?
2. Do the plaintiff reasonably require the suit premises for her own use and occupation along with her other family members?
3. Is the defendant in default of payment of rent as alleged in the Plaint? If so, has the defendant any defence against the eviction?
4. Whether the tenancy of the defendant has been determined by a valid notice to quit?
5. Is the plaintiff entitled to a decree for khas possession?
6. Whether the plaintiff is entitled to a decree for mesne profits?
Additional Issues dated 3.7.92
1. Is the plaintiff precluded from proceeding with the suit for eviction by reason of the facts alleged in paragraph 16 of the Written Statement as amended?
2. Has the plaintiff abandoned her ground of reasonable requirement of the suit premises as alleged in paragraph 5 of the additional written statement filed by the defendant?”
10. The learned trial Judge, inter alia, held that the issue of the jurisdiction of this court are barred under the principles of res judicata. As regards question of bona fide requirement (issue No. 2) the learned trial Judge answered the said issue in favour of the plaintiff and against the defendant. Issue No. 3 that is relating to default of payment of rent, according to the learned trial Judge did not survive because of the orders dated 16.2.1988 and 23.8.1989 The learned trial Judge also answered issue No. 4 i.e relating to validity of termination of notice in favour of the plaintiff as the defendant accepted the notice to be a valid one. As regards additional issue No. 1 which is to the effect “is the plaintiff precluded from proceeding with the suit for eviction by reason of the facts alleged in paragraph 16 of the amended Written Statement”, the learned trial Judge answered the same in negative. As regards additional issue No. 2 which is to the effect “has the plaintiff abandoned her ground of reasonable requirement of the suit premises as alleged in paragraph 5 of the additional written statement”, the learned trial Judge answered the same in negative. In this view of the matter issue No. 5 was answered in the affirmative. With regard to the issue No. 6 i.e as to whether the plaintiff was entitled to mesne profit, the learned trial Judge held that the plaintiff was entitled to mesne profit at the rate of Rs. 5/- per sq. ft. P.M payable from January, 1985 till possession of the flat is made over by the defendant to the plaintiff.
11. Mr. P.K Das, the learned Counsel appearing on behalf of the appellant has raised three contentions in support of this appeal. The learned counsel submitted that the plaintiff cannot value the suit arbitrarily and in view of the fact that the defendant in terms of s. 2(h) of the said Act continued to be a tenant despite his tenancy having been terminated, a decree for mesne profit could not have been asked for and the same has been done primarily for filing the suit in this court although this court had no pecuniary jurisdiction to try the suit. Reliance in this connection has been placed in Smt. Chander Kali Bail v. Jagdish Singh Thakur reported in AIR 1977 SC 2262 and Smt. Gian Devi Anand v. Jeevan Kumar reported in AIR 1985 SC 796. Mr. Das would urge that the learned trial Judge committed a serious error in holding that the said issue is barred under the principles of res judicata in view of the decision of the Supreme Court of India as it left all the questions open as would appear from the decision between the parties in Smt. Nandita Bose v. Ratanlal Nahata reported in AIR 1987 SC 1947. It was submitted that the very fact that an issue relating to jurisdiction was framed goes to show that even according to the parties the said issue survived despite the decision of the Supreme Court of India. It was further submitted that in any event the plaintiff was not entitled to value the suit arbitrarily and the court was entitled to consider that aspect of the matter. Reliance in this connection has been placed Kashiram Mulchand v. Hiranand Suratram reported in ILR 8 Bom 31, Raj Krishna Dey v. Bipin Behari Dey reported in ILR (XL) Cal 245, Inayat Husain v. Bashir Ahmad reported in AIR 1932 All 413, Narayangunj Central Co-operative Sale & Supply Society Ltd. v. Mafizuddin Ahmed reported in AIR 1934 Cal 448 and Hind Wire Industries Ltd. v. Uttar Pradesh State Electricity Board reported in 1977 (2) CLJ 258.
12. It was further submitted that arbitrariness on the part of the plaintiff to claim mesne profit would be evident from the fact that the plaintiff herself claimed a sum of Rs. 300/- per day for alleged wrongful occupation for the defendant of the flat in question and in fact the plaintiff's witnesses who are said to be experts had also opined that the valuation put by the plaintiff is on the higher side. Furthermore according to the learned Counsel, the learned trial Judge also had refused to grant entire relief wherefrom it would be evident that the valuation of the mesne profit has been arbitrarily fixed by the plaintiff.
13. As regards reasonable requirement of the plaintiff, Mr. Das submitted that the learned trial Judge erred in failing to take into consideration, the subsequent evident i.e transaction entered into by and between the plaintiff and one Vinod Sharma inasmuch as admittedly the latter had filed a suit for specific performance of contract against the plaintiff in the City Civil Court which is still pending. The learned counsel contended that as soon as the plaintiff came to learn this said fact from an advertisement as also the fact that a sum of Rs. 25,000/- has been deposited in the plaintiff's account, an application for amendment of the writ petition was filed. The learned Counsel states that the learned trial Judge has not taken into consideration the circumstances under which Rs. 25,000/- was found deposited in her bank account although on her own showing the plaintiff, except the rental income, had no other income. It was further submitted that plaintiff had failed to show that she had been living with her married daughter. In fact according to the learned Counsel the evidences on record would in no unmistakable term show that the plaintiff had been residing with her father in a spacious house and as the plaintiff's father was old, he is being looked after by her. According to the learned Counsel, therefore, the requirement of the plaintiff cannot be said to be bona fide.
14. Mr. Ranjan Deb, the learned Counsel appearing on behalf of the plaintiff-respondent, on the other hand, submitted that as regards the quantum of mesne profit granted by the learned trial Judge a memorandum of cross objection has been filed. The learned Counsel drew our attention to the judgement of the Supreme Court of India between the parties and pointed out that the findings to the effect that the amount of mesne profit claimed by the plaintiff cannot be said to be arbitrary is binding on the parties and would operate as res judicata. In this connection our attention has been drawn to the following passage:—
“Having regard to some of the decisions on which reliance is placed by the appellant in the course of the appeal, we are of the view that the matter is not free from doubt. The claim for mesne profits/damages is neither palpably absurd nor imaginary. It needs judicial consideration. The acceptance of the view put forward by the respondent may lead to encouraging a tenant who has forfeited his right to the tenancy to carry on a dilatory litigation without compensating the landlady suitably for the loss suffered by him on account of the unreasonable deprivation of the possession of his premises over a long period until he is able to get possession of the premises through the Court. We cannot, therefore, state at this stage that the claim for mesrie profits/damages had been made without good faith and with the sole object of instituting the said suit before the High Court of Calcutta even though it had no jurisdiction to try it.”
15. The learned Counsel submits that it is one thing to say that the valuation put forward by the plaintiff for the purpose of institution of suit and payment of court fee is arbitrary and it is another thing to say that upon consideration of evidence, the plaintiff may not be held to be entitled to the entire amount.
16. As regards pre-decree mesne profit the learned Counsel submits that in view of the decision of the Supreme Court of India, even a doubt was raised as regards the correctness of the decision of the Supreme Court in Smt. Chander Kali Bail v. Jagdish Singh Thakur reported in AIR 1977 SC 2262 which has been distinguished in Smt. Purificacao Fernandes v. Dr. Hugo Vicente de Perpetuo Socorro Andrade Menezes reported in AIR 1985 Bom 202.
17. Mr. Deb, in this connection also has relied a recent decision of the Supreme Court of India in Smt. Juthika Mulick v. Dr. Mahendra Yashwant Bal reported in AIR 1995 SC 1142. As regards the question of bona fide requirement the learned Counsel has taken us through the events which had taken place during the pendency of the suit (which has been noticed hereinbefore) and submitted that because of the dilatory tactics adopted by the defendant and in view of the applications for amendment of the written statement, the plaintiff had to go to witness box more than once. The learned Counsel submits that the learned trial Judge has rightly disbelieved the entire story of the purported oral agreement entered into by and between the plaintiff and the said Sri Vinod Sharma. The learned Counsel submits that it is not for the defendant to suggest, as has been done in the instant case, that the plaintiff should stay with her father or with her son-in-law and/or in that view of the matter she having a place to stay, no decree for ejectment can be passed. Our attention has been drawn to the fact that the defendant did not cross-examine the plaintiff on material particulars. Our attention has also been drawn to the findings of the learned trial Judge to the effect that the defendant has prevaricated his stand and his evidence was inconsistent and contradictory on every issue, whereas the plaintiff's evidence has been consistent and credible. The learned Counsel contends that although as at present advised and in view of the decision of the special bench of this court in Sriniwas Sureka v. Madanlal Sekhsaria reported in AIR 1973 Cal 13 the respondent is not in a position to press the ground for ejectment on the ground of default, but he reserves his right to do so, if any occasion arises therefor.
18. In view of the rival contentions raised at the bar, the following points arise for consideration in this appeal:—
(i) Whether this court had jurisdiction to try the suit on the ground that the plaintiff arbitrarily valued the suit as regards quantum of mesne profit?
(ii) Whether the judgement of the learned trial Judge as regards the plea of bona fide requirement of the plaintiff is correct?
(iii) Whether the learned trial Judge has erred in not taking into consideration the agreement for sale entered into by and between the plaintiff and Vinode Sharma in its proper perspective?
Re: Point No. (i).
19. The plaintiff has valued the suit at Rs. 1,06,000/-. At the relevant time the jurisdiction of this court to entertain a suit could be invoked if the valuation was Rs. 1,00,000/- or more, as the City Civil Court has the jurisdiction and the High Court had no jurisdiction to try suits and proceedings of a civil nature not exceeding Rs. 1,00,000/- in terms of s. 5(2) of the City Civil Court Act. There is no dispute that the valuation for the purpose of eviction at Rs. 16,800/- as also Rs. 11,200/- towards recovery of rent from 1.6.84 to 31.1.85 is correct. The only dispute is with regard to the claim of the plaintiff to the extent of Rs. 78,000/- for recovery of mesne profit or damages at the rate of Rs. 7,800/- P.M from 1.2.85 to 30.11.85 Mesne profit has been defined in s. 2(12) of CPC in the following term:—
“To mean those profits which the person in the wrongful possession of the property in question actually received or with ordinary diligence might have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.”
20. The questions which, therefore, arise for consideration is as to whether:—
(a) The plaintiff was entitled to mesne profit at all?
(b) In any event, whether the amount of mesne profit claimed is excessive or arbitrarily?
(c) Whether the decision of the Supreme Court of India reported in AIR 1987 SC 1947 was barred under the principles of res judicata?
21. The Supreme Court in Nandita Bose's case (supra) inter alia, held that the valuation of the suit depends upon the reliefs claimed and the plaintiff's valuation in his plaint determines the court in which the plaintiff can be presented in the following term:—
“The principles which regulate the pecuniary jurisdiction of civil courts are well-settled. Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the plaintiff's valuation in his plaint determines the Court in which it can be presented. It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly overvaluing or grossly under-valuing a suit. The Court always has the jurisdiction to prevent the abuse of the process of law.”
According to Mr. Deb, the said question is barred under the principles of res judicata.
22. In Nandita Bose's case (supra) the Supreme Court, inter alia, held that there had been no wrongful inflation i.e not in abuse of process so as to enable the court to return the plaint. It was also held that claim for mesne profit pre decree is not free from doubt and required judicial consideration which has to be decided by the High Court. This finding admittedly is not res judicata. But according to the Supreme Court if the High Court holds against the plaintiff the claim would be disallowed but the suit would not be dismissed for want of jurisdiction. The question was not free from doubt and in fact the learned trial Judge has rightly or wrongly held that the plaintiff was entitled to mesne profits pre decree. According to the learned trial Judge in view of the fact that s. 13 of the said Act contains a non-obstante clause, the same is relatable to eviction only and thus, the contention of the plaintiff that the definition of ‘tenant’ as contained in s. 2(h) cannot be taken aid of for the purpose of claiming a decree’ for mesne profit.
23. The word ‘tenant’ had been defined under the Act. It may further be true as has been contended by Mr. Deb in view of the decision of the Supreme Court of India in Smt. Juthika Mulick v. Dr. Mahendra Yashwant Bal reported in AIR 1995 SC 1142 that the definition of ‘tenant’ under s. 2(h) of the Act does not confer any right on him.
24. Section 2(h) of the Act defines a ‘tenant’ in the following terms:—
“Any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and (includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death) but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.”
25. It is true that an interpretation clause is not a positive enactment but there cannot be any doubt whatsoever that as the word has been defined, the meaning of such word as stated in the statutory interpretation clause shall be applied in all situations.
26. Section 17 of the said Act is a pointer to the said fact. Despite termination of tenancy a tenant is entitled to get the benefit of protection against eviction if he files an application to deposit the rent in court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid. The word ‘rent’ in s. 17(1) is significant. The learned trial Judge, however, appears to have held following decision of the Bombay High Court that the said protection is applicable only when a suit is filed by the landlord against his tenant on the ground of default only.
27. In Smt. Chander Kali Bail v. Jagdish Singh Thakur reported in AIR 1977 SC 2262, the Apex Court in no uncertain terms held that a tenant even after the termination of his contractual tenancy does not become an unauthorised occupant of the accommodation but remains a tenant. Such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English Law is quite apposite or not, but what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation.
28. In the aforementioned case the suit for eviction was filed claiming therein a decree for eviction chiefly on the ground of bona fide personal necessity of the plaintiff; for arrears of rent amounting to Rs. 150/- for October, November and December, 1972 and damages for the months of January and February, 1973 @ Rs. 225/- per month as also future damages till the delivery of possession as would appear from paragraph-2 of the said decision.
29. The definition of ‘tenant’ as contained in s. 2(i) of the M.P Accommodation Control Act, 1961 is in pari materia in s. 2(h) of the said Act. Section 2(i) of the M.P Accommodation Act, 1961 reads thus:—
“«tenant’ means a person by whom or on whose account or behalf the rent of any accommodation is, or, but, for a contract express or implies, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.”
30. It is, therefore, evident that the definition of tenant in both the Acts are almost identical and, thus, the said decision applies in all fours to the instant case.
31. The question as to whether a pre-decree mesne profit can be granted or not would, thus, depend on the fact as to whether the occupation of the tenant whose tenancy has been terminated in unlawful. The answer to the said question must be answered in negative. If the occupation of the tenant before a decree for eviction is not unlawful, the question of his paying an amount higher than the rent by way of damages or otherwise would not arise. A distinction has to be drawn between a statutory tenant and a tresspasser. A statutory tenant despite termination of tenancy continues to be a tenant and thus does not become a tresspasser.
32. Mr. Deb, when questioned, very fairly conceded that a statutory tenant, in the event of disconnection of electrical energy or water supply by the landlord would also be entitled to the same benefit as that of a tenant whose tenancy had not been so terminated.
33. The Bombay High Court in Smt. Purificacao Fernandes v. Dr. Hugo Vicente de Perpetuo Socorro Andrade Menenzes reported in AIR 1985 Bom 202 distinguished Chander Kali's case on the ground that therein eviction of a tenant had been prayed for on account of non-payment of rents and as the tenants could have avoided his eviction by paying the rents and, therefore, it was only because the tenant had availed himself of the benefit the eviction had not been ordered.
34. In view of the factual error contained in the said judgement, we cannot agree therewith inasmuch as noticed hereinbefore, the said suit was filed not only on the ground of default of payment of rent but also on the ground of bona fide requirement. This aspect of the matter has been considered by a learned single Judge of Bombay High Court in Ratilal Thakordas Tamkhuwala v. Vithaldas Magandas Gujarathi reported in AIR 1985 Bom 134 wherein it was held that in Chander Kali Bail's case the Apex Court has approved and confirmed the decree. For mesne profit at the higher rate than fair rent under the provisions of the Act for the period after the date of eviction decree and before the date of eviction decree, the quantum at the rate of fair rent had been approved. Therefore, the two learned single Judges of the same court had taken a divergent view. Furthermore, in Smt. Gian Deui Anand v. Jeevan Kumar reported in AIR 1985 SC 796, A.N Sen, J. speaking for himself and on behalf of Chandrachud, C.J, S.M Fazal Ali and V.B Eradi, JJ., while considering the provision of Delhi Rent Control Act, held:—
“It is also important to note that notwithstanding the termination of the contractual tenancy by the landlord, the tenant is afforded protection against eviction and is permitted to continue to remain in possession even after the termination of the contractual tenancy by the Act in question and invariably by all the Rent Acts in force in various States so long as an order or decree for eviction against the tenant on any of the grounds specified in such Acts on the basis of which an order or decree for eviction against the tenant can be passed, is not passed.”
35. The Apex Court clearly held that the right of a statutory tenancy is heritable. It was observed that the Rent Control Act was enacted to promote social justice by affording protection to tenants against undue harassment and exploitation by landlords providing at the same time for adequate safeguards of the legitimate interest of the landlords. The Apex Court further observed that the Rent Control Acts undoubtedly lean in favour of the tenants for whose benefit the same are essentially passed. The learned Judge held:—
“Though provisions of all the Rent Control Acts are not uniform, the common feature of all the Rent Control Legislation is that a contractual tenant on the termination of the contractual tenancy is by virtue of the provisions of the Rent Acts not liable to be evicted as a matter of course under the ordinary law of the land and he is entitled to remain in possession even after determination of the contractual tenancy and no order or decree for eviction will be passed against a tenant unless any ground which entitles the landlord to get an order or decree for possession specified in the Act is established. In other words, the common feature of every Rent Control Act is that it affords protection to every tenant against eviction despite termination of tenancy except on grounds recognised by the Act and no order or decree for eviction shall be passed against the tenant unless any such ground is established to the satisfaction of the Court.
36. Admittedly, therefore, unless a decree is passed even a statutory tenant remains a tenant and enjoys all the rights of a tenant including the right to possess the tenanted premises and further is entitled to pay rent as is payable under the contract or as is fixed by the Rent Controllers in an appropriate proceeding. We may also notice in some State Legislation, like Bihar Building (Lease Rent and Eviction) Control Act, there is no provision for termination of tenancy and thus s. 106 of the Transfer of Property Act has also no application and in such cases cause of action for filing a suit for eviction arises, if any of the factors required therefor is attracted. It is, therefore, not possible to agree with the learned trial Judge that despite the authoritative pronouncement of the Supreme Court of India, a statutory tenant would be liable to pay any amount during pre-decree period higher than the contractual or the statutory rent.
37. The observation of the Supreme Court in Nandita Bose's case (supra) is not decisive inasmuch as therein merely a doubt about the correctness of the decision in Chander Kali Bail's case (supra) was raised. Even the decision of the Supreme Court in Gian Devi's case was not brought to its notice. This court is bound by the decision of the Supreme Court of India which is the law of the land in terms of Art. 141 of the Constitution of India.
38. In that view of the matter, it must be held, that in a suit for eviction governed under the provisions of West Bengal Premises Tenancy Act, the plaintiff is not entitled to claim mesne profit higher than of the quantum of rent till a decree for eviction is passed. The question which now arises for consideration as to whether valuation of the suit as regards the relief for recovery of mesne profit or damages at the rate of Rs. 7,800/- P.M was arbitrary. In her notice she claimed mesne profit only at the rate of Rs. 100/- per day whereas the mesne profit claimed as per the report of Talbort & Company valuers in terms of Exbt. 14 is Rs. 2050/- per month but the said report was made on the basis of increase rent as per the provisions of the said Act. The witnesses examined on behalf of the plaintiff, Sundarlal Mitra, however deposed that the quantum of mesne profit would be Rs. 7,000/- per month. The learned trial Judge has also decreed at the rate of Rs. 5 per sq. ft. i.e @ Rs. 7,000/- per month.
39. Ex facie it appears that the amount of mesne profit claimed by the plaintiff was not on a much higher side inasmuch as had she been under a bona fide belief that such mesne profit should be computed at the rate of Rs. 7,800/- per month. In view of the decree passed by the learned trial Judge, we are of the opinion that the valuation of the suit cannot be said to be arbitrary. It might have been over estimated but a distinction between ‘over estimation’ and Arbitrary valuation. A court normally is bound by the valuation put by the plaintiff in the plaint, but it can interfere when it is either abnormally low or high. Such a question is principally determined for the purpose of court-fee; albeit also for jurisdiction.
40. It is, however, in our opinion, not necessary to go further into this matter in view of the fact that on a question of law we have come to the conclusion that the plaintiff was not entitled to claim any amount higher than the amount of contractual or standard rent as determined by the Rent Controller prior to the passing of a decree for eviction.
41. The question as to whether the decision interpartes before the Supreme Court is barred under the principles of res judicata or not as has been held by the learned Trial Judge has to be answered in negative. In Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd. reported in AIR 1963 SC 1128, the Apex Court has held that what becomes res judicata is the matter which is actually decided and not the reason which leads the court to decide the matter. In the case before the Apex Court, the matter had not been decided finally. The question was kept open. Furthermore the said question having been raised as a preliminary issue and the same having been held by the Supreme Court to be not an issue which should have been decided at threshold by directing return of plaint, cannot be said to have been decided between the rights of the parties finally. In view of the fact that the Supreme Court itself kept all the questions open, any observations made by it must be constrained to have been made only for the purpose of deciding the said question. This aspect of the matter has been considered in Arjun Singh v. Mohindra Kumar, reported in AIR 1964 SC 993. The other decisions cited by Mr. Das are not relevant for the purpose of this case.
42. Moreover, now it is trite-law that a pure question of law or a question of jurisdiction cannot operate as a res judicata. Recently in Sabitri Devi v. Sarat Chandra Rout reported in 1996 (3) SCC 301 while holding that the objection regarding invalidity of the decree sought to be executed can be raised at the stage of execution or in a collateral proceedings on the ground of its being a nullity the Apex Court relied upon its earlier decision in Sushil Kumar Mehta v. Gobind Ram Bohra reported in 1990 (1) SCC 193 wherein it was held:—
“Thus the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed question does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.”
43. We may, however, notice that Mr. Das has placed strong reliance upon Abdul Hamid Shamai v. Abdul Majid reported in AIR 1988 SC 1150 and Sujir Keshav Nayak v. Sujir Ganesh Nayak reported in AIR 1992 SC 1526. In both the decisions the Apex Court held that ordinarily the court shall not examine the correctness of the valuation chosen but the plaintiff cannot act arbitrarily in this matter. Such figure should not be whimsical or ridiculous. The Supreme Court itself in Nandita Bose's case (supra) has held that ex facie the said claim was not whimsical or arbitrary. The court as has been held in Sujir Keshab Nayak's case (supra) laid down the law in the following terms:—
“(1) Where the question of court fee is linked with jurisdiction a defendant has a right to raise objection and the court should decide it as a preliminary issue.
(2) But in those cases where the suit is filed in court of unlimited jurisdiction the valuation disclosed by the plaintiff or payment of amount of court fee on relief claimed in plaint or memorandum of appeal should be taken as correct.
(3) This does not preclude the court even in suits filed in courts of unlimited jurisdiction from examining if the valuation, on averments in plaint, is arbitrary”.
44. On the averments in plaint of the suit, the valuation cannot be said to be arbitrary. Moreover even assuming that the appellant is right in his submission, this court may not dismiss the suit on that ground alone. The application which went upto the Apex court between the parties (AIR 1987 SC 1947) proceeded on the basis of the application under Or. 7 R. 10 of the Code of Civil Procedure filed by the defendant. In fact, the learned trial Judge directed return of the plaint.
45. However, in terms of Or. 49 R. 3, Clause (1) of Original Side Rules: Or. 7 R. 10 of the Code of Civil Procedure has no application in respect of suit tried by this court in exercise of its ordinary original civil jurisdiction. This court will have, therefore, to decide all the issues.
46. In that view of the matter even if a finding on the question of pecuniary jurisdiction was answered in favour of the appellant, the suit should not be dismissed. This Court is a court of unlimited jurisdiction. Although s. 15 of Code of Civil Procedure lays down that a suit shall be filed in the court of the lowest grade competent to try the same; but it is merely a matter of procedure and does not affect the jurisdiction of a court of higher grade to try the suit entertainable by a court of lower grade. When the suit triable by a court of lower grade is instituted in a court of higher grade, the latter court is not bound to return the plaint. It is only discretionary on the part of such latter court i.e to say the court of higher grade either to try the suit itself or to return the plaint for presentation in the court of lower grade.
47. Moreover, as has been submitted by Mr. Das himself in terms of Or. 49 R. 3 of the Original Side Rules, this court has no power to return the plaint as the application under Or. 7 R. 10 is excluded.
48. Furthermore, this court has jurisdiction to withdraw any suit from any court in terms of s. 24 of the Code of Civil Procedure. Clause 13 of the Letters Patent as also Art. 228 of the Constitution of India.
49. It will also not be a case by reason of a trial of the suit in the Original Side of this court the defendant has been prejudiced as his right of appeal to a division bench of this court has not been taken away even from a decree passed by the City Civil Court would have been entertained by a division bench of this court.
50. The appellant has neither argued nor has shown any prejudice suffered by him. The appellant was bound to show that there has been a failure of justice. Reference in this connection may be made to Hind Ltd. v. Kalinath reported in AIR 1962 SC 199 at 201. So far as the jurisdiction of this court to try the suit is concerned it is governed by clause 12 of the Letters Patent of this Court. The Court entertained the suit as it was satisfied about its jurisdiction. We hold that this court did not lack inherent jurisdiction to try this suit and on that ground, the suit should not be dismissed.
Point No. (ii)
51. A suit for eviction brought in terms of s. 13(1)(ff) of the said Act is required to satisfy two conditions, namely (a) that the landlord reasonably requires the premises for his own occupation; and (b) that he is not in possession of any reasonably suitable accommodation. The burden of proof to prove bona fide requirement is upon the plaintiff. The learned trial Judge has taken great pains in analysing the evidences on records as also the relevant case laws on the subject.
52. The plaintiff's case in the plaint is that she requires the subject matter of the flat in question for her personal use and she has no other reasonably suitable alternative accommodation. However, in her evidence, she stated that she requires one room for herself and another for her daughter and sons-in-law when they visited her. The flat in question, admittedly, consists of two bed rooms. The learned Counsel appearing on behalf of the appellant, when questioned conceded that it is not a case where the defendant-appellant can put forward a plea that the requirement of the plaintiff shall be served by her eviction from a portion of the tenanted premises.
53. Such a case which could be raised under law having been conceded to by the defendant, the question as to whether the plaintiff requires an additional room for her guests loses importance. The failure on the part of the plaintiff to plead that she requires another room for her guests, in our opinion, thus becomes wholly irrelevant. For the purpose of this appeal it is also not necessary to consider as to whether the suit premises is required for her catering business.
54. A great deal of argument has been advanced before this court, that the plaintiff used to reside with her father at 418, Parnashree and not at Hindusthan Road as claimed by her. A large number of documents to prove the fact that she had been residing at Parnashree had been brought to our notice, namely, Exbt. A, D (Statutory Notice), K, L, O, Q, R, U, X, XI, Y and Exbt. 2. Assuming that the plaintiff's father is about 87 years old and requires the company of his daughter is correct, the same, in our opinion, would not mean that the court would force the plaintiff to live with her father. Only because she had given the said address for postal correspondences or as the plaintiff had a Bank Account at Parnashree, the same do not necessarily mean that she had been living there. In support of her statement that she resides at Hindusthan Road, apart from her oral evidence, a Ration Card and a Consumer History Chart relating to the supply of domestic Gas have been produced. It is not the case of the defendant that the flat situated at Hindusthan Road belongs to the plaintiff. A bona fide requirement means a genuine need. The question as to whether a person has a bona fide requirement or not is essentially a question of fact. See Sardar Jaswant Singh v. IV Additional District Judge, Kanpur Nagar reported in 1996 AIHC 1278. Admittedly, the plaintiff except the house in question has no house of her own. The plaintiff in her evidence categorically stated that after the murder of her husband, till December, 1984, continued to live in the company quarters whereafter she had shifted 27B, Hindusthan Road for the first time. As noticed hereinbefore, at least some evidence has been adduced to show which has not been contradicted by any evidence adduced on behalf of the defendant that she had been residing there or maintaining an establishment. The defendant in his defence took up the plea that she lives with her father. However, as noticed hereinbefore, except for the purpose of correspondence and Bank Account no evidence worth the name has been brought on records to show that she had continuously and permanently been residing with her father. She might be regularly visiting her father and might be occasionally residing with him and for the sake of convenience she had been maintaining a Bank Account at Parnashree and had given her addresses in some of the letters as the said address. The defendant in answer to question no. 42, however, admitted that he did not know whether the plaintiff resided at 27B, Hindusthan Road at any time.
55. It is pertinent to note that the plaintiff contended that she shifted to Hindusthan Road in December, 1984. Some of the documents upon which reliance has been placed to show that the plaintiff had been residing at Parnashree is prior to the said date. At the cost of reputation it may be recorded that there is no evidence to contradict the plaintiff's consistent stand that she had been allowed to retain her husband's quarters till December, 1984 i.e for about a period of one year after her husband's murder. The learned trial Judge has rightly held that the only document with which she had been confronted in her cross-examination so as to give an opportunity to give an explanation in her address given in the statutory notice to quit to which she categorically stated that she by that time did not shift to Hindusthan Road flat and had been residing at the Jute Mill Quarters.
56. So far as the Bank Account is concerned, it is the postive case of the plaintiff that the said Account was being maintained for the purpose of deposit of rent which her father used to deal with. Even in the Bank Account as against her description, it had been stated, case of B.C Nag i.e her father. The plaintiff thus, explained the maintenance of her Bank Account at Parnashree also.
57. It is not possible to agree with the submission of Mr. Das that as there exists evidence on records that her father being 87 years old and infirm, needs to be looked after and thus, the plaintiff may stay with him. Such a desire on the part of the defendant, cannot form the subject matter of discussion in a case of bona fide requirement as the defendant's desire cannot be directed to be fulfilled by the court which would mean that the plaintiff would be asked to stay with her father and her father would be compelled to allow his daughter to stay with him. Similarly the plaintiff cannot be compelled to stay with her married daughter only because the defendant so desires.
58. It is also pertinent to note that the defendant had taken three alternative stands which are inconsistent with each other, viz., (1) she resides with her father at Parnashree, (2) that she had taken Hindusthan Road's flat on rent, and (3) that she had been living with her eldest daughter and son-in-law in the house which was taken on rent by the plaintiff's son-in-law. Even if the defendant, any of the aforementioned contention is accepted the need of the plaintiff cannot be said to be not bona fide or genuine. Reliance in this connection may also be made to Amiya Charan Law v. The India Jute Co. Ltd. reported in 94 CWN 19 & Sonabati Devi v. Achyutanand Dey reported in 87 CWN 278.
59. In Himanshu Bikas Das v. Ramendra Mohan Dutta reported in 1991 (1) CLJ 392, it has been held that the landlord has to establish something more than desire but something less than obsolete necessity. In Krishna Das Nandy v. Bidhan Chandra Roy reported in AIR 1959 Cal 181, this court has categorically held that the defendant cannot have any say as regards the plaintiff's choice of residence.
60. In Calcutta Film Library… v. Dr. Shila Sen…. reported in 1993 (2) CLJ 248, division bench of this court has held:—
“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 there could not be any reasonable requirement for the landlady.”
It is also now a trite law that the requirement of the plaintiff has to be judged having regard to the status and also to encompass within its purview the needs of her family. Family includes a married daughter. See Parima Bala Roy v. Santosh Kumar Bhattacharjee reported in 88 CWN 510.
61. The submission of Mr. Das to the effect that the plaintiff wanted to enhancement in the quantum of rent cannot also be accepted in view of the fact that although such a contention was taken by the defendant in his examination-in-chief, in cross-examination, he could not say whether such an averment has been made before or after the filing of the suit. He allegedly paid a sum of Rs. 12,000/- but when it was pointed out that the rent for the period in question, viz. June 1981 to January 1985 would only amount to Rs. 11,200/-, the plaintiff sought to give some explanation which was not accepted by the learned trial Judge. The defendant moreover could not prove such payment as on his own showing he did not say when such an amount was paid or whether there was any other witness.
62. The defendant who is a businessman carrying on business in films and brokerage, stated that he did not know English calendar months nor Bengali calendar months nor Hindi calendar months.
63. It is also not possible to accept the submission of Mr. Das that as the plaintiff's income is a rental income, it will be unbelievable that she would reside in the Russel Street flat and lose her only substantial source of income. The said submission had been made on surmises and in any event is misconceived. The rent for the flat is merely a sum of Rs. 1,400/- P.M According to the defendant himself, she had to pay rent for her occupation at Hindusthan Road. The difference in amount of rent may not be such so as to enable the plaintiff to sustain herself only on the said basis. It is not in dispute that her husband was a Manager of Angus Jute Company Ltd. and he had been murdered. Although her regular income might have been rental income only, it cannot be accepted that she is a pauper.
64. The very fact that she had been made to incur a huge expenditure in this litigation alone which has already gone upto the Apex Court twice, would show that the defendant cannot be said to be dependant on rental income alone. Moreover, the plaintiff in her evidence categorically stated that even in her father's house which is a two storeyed building, there are only two bed rooms with attached bath, a puja room, one kitchen and one dining space-cum-veranda as the entire ground floor had been let out.
65. Evidently, therefore, if the plaintiff has to reside with her father, there would not be any place to accommodate her married daughter. Furthermore, it is on record that apart from the plaintiff, her father has another daughter who also resides in Calcutta.
66. The learned trial Judge upon analysing the evidence on record has arrived at a finding of fact that the accommodation at Hindusthan Road, merely consists of one bed room measuring 10 ft. × 18 ft. with attached bath and privy measuring 4 ft. × 4 ft. and a small veranda adjoining the premises which was used as a passage and a kitchen measuring 4 ft. × 16 ft. The defendant himself admitted that the plaintiff's husband was holding a big post and thus, admittedly she is used to good living and thus, there is nothing to disbelieve the statements made by her that she is frequently visited her friends. It has also come in evidence that plaintiff's younger daughter resides out side Calcutta and had been staying with her mother for long stretches at times. It has also come in evidence that at the Hindusthan Road flat, there was no room to accommodate any servant. The plaintiff was not cross-examined on that point and thus the appellant must be held to have admitted the same.
67. The learned trial Judge has also taken into consideration a subsequent event, namely, that the plaintiff also wanted to start a catering business. Although there was no pleading to that effect, the evidence of landlord may also be taken into consideration by way of subsequent event but even if that factor is not taken into consideration admittedly the plaintiff is not a tenant at Hindusthan Road and she is staying there at the mercy of son-in-law. In any event, as indicated hereinbefore, the choice is that of the plaintiff particularly in view of the fact that the plaintiff categorically expressed her sentiments in answer to cross-examination that ‘no mother-in-law wants to stay with her son-in-law’, but the daughter and the son-in-law should visit the mother-in-law from time to time.
68. Let us now consider the decisions relied upon by Mr. Das.
In Mattualal v. Radhalal reported in AIR 1974 SC 1596, the court was concerned with a case where the landlord required a non-residential accommodation. The court held that the word ‘required’ signified that mere desire on the part of the landlord is not enough but there should be an element of need, no exception can be taken to the aforementioned proposition and in fact this court has analysed the evidences on record with that aspect of the matter in mind.
69. In M.M Quasim v. Monoharlal reported in AIR 1981 SC 1113, the Supreme Court merely held that the court can take into consideration the subsequent events as therein the right title and interest in respect of the premises in question of the plaintiff came to an end after filing of the suit. Such is not the position here.
70. In Sonabati Devi v. A. Dey reported in 87 CWN 278, a division bench of this court again stressed that the need of the landlord must be genuine present need and not mere need. As indicated hereinbefore in that decision itself it has been held that it is not necessary for the landlord to prove absolute necessity. Each case has to be considered on its own facts.
71. In Krishna Kanta v. Gobinda Chandra reported in 1986 (1) CLJ 360, this court again took into consideration events subsequent to the passing of the decree. No such case has been made out in the present case.
72. In Haridas v. Priti reported in 92 CWN 530, the court merely held that before passing a decree, it has to weight and consider a bundle of facts and circumstances, such as, extent and character of the plaintiffs existing accommodation convenience, comfort, desirability etc. No exception to the said ratio can also be taken.
73. In S.N Tagore v. B.K Dutta Gupta reported in 92 CWN 750, the court was concerned with the question as to whether the onus lies on the plaintiff or not irrespective of the fact as to whether a contrary plea has been taken by the defendant or not.
74. In A.C Law v. Indian Jute Co. Ltd. reported in 94 CWN 19, the court again reiterated that the requirement must be reasonable and cannot be a mere wish, convenience or fancy but stressed that the same is something less than absolute necessity.
75. In Shantilal v. Ranesh Chandra reported in AIR 1981 Cal 413, this court again was considering a case of events which took place subsequent to the events.
76. It is now well known, the view of the learned trial Judge who had the advantage of looking to the demeanour of the witnesses should not be rightly interferred with. The appellate Court as is well known, is loathe to interfere with a pure finding of fact based on oral evidence.
77. In Kalipada Saha v. Sm. Lila Rani Saha reported in Cal. LT 1995 (1) HC 204, this court relying on the decisions in Mandholal v. Officer Assignee of Bombay, reported in AIR 1950 FC 21, Madhusudan Das v. Narayani Rai reported in AIR 1983 SC 114 and Rajbir Kaur v. S. Cholosiri & Co. reported in AIR 1988 SC 1845 held:
“Moreover the learned Court below upon appraisal of the evidence brought on records accepted the plea of marriage. Such a finding based on oral testimonies of the witnesses shall not be ordinarily interferred with by the Appellate Court”.
Re: Point No. (iii)
78. According to the defendant, the plaintiff has allegedly entered into an agreement for sale with one Vinode Sharma. The learned Trial Judge decided the said issue which was raised as additional issue No. 2 against the defendant and in favour of the plaintiff.
79. Mr. Das has submitted that in answer to question no. 315 to the effect. “Is it correct what they have stated in the plaint?”; the plaintiff answered ‘yes’, which means that the plaintiff accepted the statements made in the plaint filed by the aforementioned Vinode Sharma in City Civil Court. To us it appears that the said question was absolutely vague and in all probability, the plaintiff did not understand the implication thereof. The evidence of a witness, as it is well known has to be read as a whole. In this connection it is relevant to notice questions No. 312 to 314 and the respective answers thereto as the plaintiff has categorically stated that he did not know the detailed statements made in the said plaint. The said answer, thus, cannot be taken as unequivocal admission that the statements made in the plaint are correct. Furthermore, no such plea appeared to have been taken before the learned trial Judge. The learned trial Judge, in our opinion, has correctly analysed the evidences on records and came to the finding that the defendant had not been able to prove that the plaintiff had entered into an agreement for sale with said Vinode Sharma. It is evident from the records that the contents of the purported advertisement which was the source of knowledge of the defendant had not been proved. The evidence disclosed on the records clearly lead to one conclusion that the plaintiff had not accepted the sum of Rs. 25,000/- which was deposited in her account. The events during the pendency of the suit clearly show that the plaintiff has been pursuing the suit in right earnest despite the fact that the defendant had adopted dilatory tactics. He filed three interlocutory applications.
80. The alleged agreement for sale is the subject matter of suit for specific performance of contract. This court would not unless a very strong case have been made out venture to incidently determine an issue which is a vital issue in another suit. The plaint of the suit for specific performance of contract filed by Vinode Kumar Sharma against the plaintiff is a part of Exbt. G series. Somebody has merely produced the plaint and the contains thereof had not been proved. After the aforementioned documents were proved the plaintiff went to the witness box again and categorically denied the oral agreement. The advertisement which was the basis for the defendant to take such plea was merely shown but the contents thereof were not proved.
81. Furthermore, the fact that the defendant in his written statement has taken the plea of abandonment of her claim of bona fide requirement clearly implies there has been such requirement.
82. It was not necessary for the plaintiff as was submitted by Mr. Das to initiate any civil and criminal proceedings as against Sri Sharma as the evidences on records clearly point out that she has made every efforts to return the amount back to Sri Sharma.
83. The onus to prove that the plaintiff had entered into an agreement for sale with Sri Vinode Sharma was upon the defendant as the plaintiff in her evidence clearly stated that she had not entered into any such transaction. The plaintiff apart from denying about factum of such transaction could not adduce any other evidence whereas it was for the defendant who had raised a specific plea to prove the said fact. The defendant despite knowledge of the address of Vinode Sharma did not take step to examine him as a witness.
84. The question as to how the alleged xerox copies of the share certificates having gone to the possession of Sri Sharma is a matter which may fall for consideration in the suit for specific performance of contract but the same, in absence of any clear proof that the said agreement had in fact been entered into, in our opinion, cannot be of much relevance in this case.
85. So far as the submission of Mr. Das to the effect that the learned Counsel for the plaintiff himself had put to the defendant in cross-examination that there had been talks and/or negotiations for the sale of the flat in question by the plaintiff is again of not much consequence inasmuch as admittedly the said transaction did not materialise.
86. It may be that at some point of time a negotiation for sale of this flat in question by and between the plaintiff and the defendant took place but the defendant must be held to have given a go-bye to the said plea himself as in the additional written statement he took the specific plea of the purported agreement of sale by and between the plaintiff and Vinode Sharma and nobody else. The plaintiff in her evidence categorically denied having been approached by the defendant for sale of the flat in his favour. See question Nos. 302 to 304 but there has been no cross-examination on the said issue. The learned trial Judge held:
“The plaintiff on the other hand has affirmed that she required the flat for her personal use and had never abandoned the requirement (Q. 318). Admittedly, the plaintiff was through out goint to Court regularly despite her illness (Q. 407, 408 and 409). In fact her cross-examination was concluded on 16.3.92 before the filing of the additional written statement. The fact that the plaintiff has regularly attended the Court and persisted with her case right up to the Supreme Court does not correspond with the picture of a plaintiff who is not interested in pursuing the suit for vacant possession of the flat, and who is only interested in selling the property. No reason has been suggested by the defendant as to why the plaintiff should have attended the Court regularly if she were desirous of selling the flat.”
There is as such no reason to hold that the plaintiff had abandoned her requirement for the flat”.
87. We see much force in the said reasonings of the learned trial Judge. In any event, as the defendant withheld the best evidence, it cannot be said, that the said plea has been proved. In any view of the matter even if the plaintiff might have desired to sell the property at one point of time which had not fructified the same by itself cannot give rise to a presumption that the plaintiff's claim of bona fide requirement must fall on that ground alone if she had been able to prove her case otherwise.
88. Therefore, the finding of the learned trial Judge on the aforementioned issue must be affirmed.
89. Keeping in view our findings on point No. 1, the cross-objection filed by the plaintiff must be rejected.
90. For the reasons aforementioned the Appeal is allowed in part and to the extent mentioned hereinbefore and the cross-objection is hereby dismissed. In the facts and circumstances of this case the appellant shall pay and bear the costs of this appeal. Counsel's fee assessed at 200 Gms.
Satya Narayan Chakraborty, J.:—I agree.
Appeal allowed in part.
A.N.S
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