Prem Prakash Sah v. Bhadarmall Sharma — 1983 DIGILAW 53 (PAT)

JUDGMENT : U.C. Sharma, J. This appeal by defendant is directed against the concurrent JUDGMENT : and decree of the courts below passed in a suit for eviction of the defendant from the suit premises and also for realisation of arrears of rent and for a decree for current rent at the rate of Rs.175/- per month from 1st of January, 1979 till the date of possession. 2. Admittedly, the plaintiff was the landlord and the defendant was the tenant in the suit premises, namely, holding no. 39(old), 36(new) ward no. 9, Lakshmi Narain Road, Chhoty Sarayaganj in the town of Muzaffarpur. The rate of rent, that is, Rs.175/- per month is also not in dispute. It is also not in dispute that the defendant paid the rent at the stipulated rate till August, 1978 and thereafter he defaulted. The suit for eviction has, therefore, been brought on the ground of default and also on the ground of personal necessity. 3. The suit was resisted by the defendant and his case in substance was that the original rent of the suit premises was Rs.60/- per month and it was illegally enhanced from time to time until it carne round to Rs.175/-. He denied that he was a defaulter or that the plaintiff had a personal necessity. 4. The court below held against the defendant on both the points, namely, on the point of default and on the point of personal necessity and on those findings the plaintiff's suit was decreed. Hence this appeal by the defendant. 5. Mr. S.C. Ghose, learned counsel appearing for the appellant assailed before me both the points as found by the courts below. 6. The ground of default has been challanged on the basis that the alleged enhancement was illegal and was hit by the provisions of Section 4 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. 5. Mr. S.C. Ghose, learned counsel appearing for the appellant assailed before me both the points as found by the courts below. 6. The ground of default has been challanged on the basis that the alleged enhancement was illegal and was hit by the provisions of Section 4 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. Section 4 reads thus:- "Notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in the rent which is payable for the time being, in respect of any building except in accordance with the provisions of this Act." The argument of the learned counsel is that the procedure as laid down in this Act was not followed in enhancing the rent and, therefore, the enhancement was illegal and since the payment had been made there was no question of any default. This question wall considered by the trial court which held "in view of the facts stated above the alleged enhancement of rent of the shop premises in question can not be said to be illegal and improper." It was found that the tenancy in question was a new tenancy and it was not in continuation of the old tenancy. Learned counsel appearing for the appellant tried to challenge this finding of the trial court and submitted that there was only one tenancy and since the enhancement has been made during the continuation of the old tenancy, it is clearly hit by Section 4 of the said Act. It was pointed out by Mr. Bishwnath Agrawal, learned counsel appearing for the respondent that the finding with regard to the fresh tenancy was finding of fact which can not be assailed in a second appeal. It appears from the JUDGMENT : of the trial court that previously the firm of the defendant's father was a tenant at a rental of Rs.60/- per month. That firm was dissolved on 31.3.1974. The firm continued in possession as a tenant till it was dissolved. Later on 1.5.1975 the present defendant took the shop in question on rent. The shop was duly remodelled with physical feature, i.e. after amalgamation of the two rooms. That firm was dissolved on 31.3.1974. The firm continued in possession as a tenant till it was dissolved. Later on 1.5.1975 the present defendant took the shop in question on rent. The shop was duly remodelled with physical feature, i.e. after amalgamation of the two rooms. It would thus appear that the old tenancy at the rate of Rs.60/- had come to an end more than a year there after a new tenancy, i.e. the tenancy in question came into existence. This finding is based on the consideration of the pleading of the parties and the materials on records. The learned counsel for the appellant also submitted that what section 4 lays stress is the building and not the tenancy. Even assuming the argument to be correct, the building in this case is not the same building which was in possession of the firm earlier. This is a new building which has been remodelled and two rooms amalgamated. A new Kirayanama was executed which is Ext. 3. From the appellate court JUDGMENT : it appears that this aspect of the case was not raised by the appellant. The JUDGMENT : clearly shows in paragraph 10 that apart from the points discussed, namely, the points of default and the personal necessity no other question was raised before the court of appeal below and I think purposely in view of the clear findings recorded by the trial court of the point of tenancy. The finding as pointed out is a finding of fact and is not possible for this court to go behind that finding. I, therefore, in agreement with the courts below hold that the defendant was a defaulter and in case of a fresh tenancy the bar of section 4 will not apply. This view finds support from the JUDGMENT : in case of N.M. Verma v. U.N. Singh (1977 B.B.C.J. 662). In paragraph 33 of the JUDGMENT : S. Sarwar Ali, J. (as he then was) observed as follows:- "I must now refer again to Section 4 of the Act. It prohibits enhancement of rent during the continuance of the same tenancy. But where a new contract is with the consent of all the parties concerned, substituted for one that had already been made, the section, in my opinion, is not applicable. It prohibits enhancement of rent during the continuance of the same tenancy. But where a new contract is with the consent of all the parties concerned, substituted for one that had already been made, the section, in my opinion, is not applicable. It is well settled that the parties to an original contract can by mutual agreement enter into a new contract in substitution of the old one. Thus where the original contract is substituted for the old contract, the section has no application". The decision in the unreported case of Ranjit Singh v. Shanti Devi (S.A. No. 257 of 1977 disposed of on 16th August, 1979) also points to the same conclusion. It may be mentioned that S. Sarwar Ali, J. (Acting Chief Justice) was a party to this JUDGMENT : also. In view of these decisions it would be difficult to say that the present tenancy shall be bit by the provisions of section 4 of the said Act having regard to the facts and circumstances of this case. 7. The question of personal necessity was considered by the two courts and it was found that the landlord had such necessity. It was contended that during the continuance of the appeal, one of the tenants of the plaintiff vacated another premises. It appears from the discussion, in the JUDGMENT : that the plaintiff required a premises for the purpose of office of his son who was to practice as a lawyer. The trial court held that "so in comparision I find that shop in question is more suitable for the said chamber of the plaintiff's son than the other rooms". From the appellate court JUDGMENT : it appears that the defendant did not challange the requirement of the plaintiff's son for the chamber, but he challanged the suitability of the suit premises. Whether a particular building is or is not suitable for a practising lawyer is for the owner of the premises to consider and decide. A tenant can nut dictate the landlord to take or not to take possession of particular premises for his necessity. It was further stated in the course of argument that the defendant applied before the appellate court for additional evidence in connection with this point. The appellate court rejected the application under ORDER :41 Rule 27 of the Civil Procedure Code. It was further stated in the course of argument that the defendant applied before the appellate court for additional evidence in connection with this point. The appellate court rejected the application under ORDER :41 Rule 27 of the Civil Procedure Code. Against that, I am told, the defendant came up to this court in C.R. No. 789 of 1980 which was disposed of on 13.2.1981. This court dismissed the application. Therefore, no objection could be raised on that score. The ORDER :has become final. Since the two courts concurrently held that the plaintiff had personal necessity for the suit premises this court will not interfere with that finding. No error of law or irregularity could be shown in that finding. The finding is final and binding all this court in Second Appeal. 8. The learned counsel for the appellant also contended that while holding that the plaintiff had personal necessity for the premises in question, should have considered the question of partial eviction from the suit premises. Having regard to the facts and circumstances of this case, that question perhaps does not arise in as much as the premises in question was 25'X9' in area. In any case having regard to the findings on the question of default, the question of a partial eviction loses much of significance and importance. 9. For the reasons stated above, I find that there is no merit in the appeal. It is accordingly dismissed but without costs.