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1985 DIGILAW 348 (PAT)

Tapsendra Nath Lal v. Norodh Baran Haldar

1985-12-13

S.B.SANYAL

body1985
JUDGMENT : S.B. Sanyal, J. - This is plaintiff's appeal against the JUDGMENT : of reversal. The plaintiff's suit was for eviction of his tenant and also for arrears of rent. The cause of action for the suit is personal necessity. The appellate court non-suited the plaintiff, because on the date of the institution of the suit, the plaintiff did not require the premises. The necessity urged was that the plaintiff was to retire from service and he wanted to settle down at Deoghar. but since the necessity was in anticipation, the learned District Judge held that the same cannot be the basis for eviction of the tenant. 2. Mr. Mukherjee appearing for the appellant contended that in view of the law laid down by the Supreme Court in the case of Hasmat Rai v. Ragunath Prasad (A.I.R. 1981 S. C. 1711) the court is required to adjudicate the need occuring or absence thereof even during the pendency of the suit; and the crucial date of necessity should be the date when the eviction ORDER :is going to be passed. It is admitted on all counts that during the pendency of the suit itself the plaintiff retired and, therefore, what was anticipation on the date of the institution of the suit became real during the pendency of the suit. 3. Mr. T.K. Jha appearing on behalf of the tenant-defendant submits that even assuming that existence of cause of action has to be adjudicated on the date the ORDER :for eviction is made, the Court is required further to give a finding that whether the need of the landlord could be fulfilled from the part or the whole of the premises in occupation of the tenant. He further contended that the appeal cannot be allowed merely because the lower appellate court has held that the necessity must be in existence on the date of institution of the suit, inasmuch as the appellate court has considered on merit the fact that he does not require any extra space than what he possessed of in the disputed house, necessitating eviction of the tenant. 4. It may be stated that this is not the case where the plaintiff does not possess a house for his residence at Deoghar. In the disputed house four bed rooms, two kitchen rooms, one dining room varendah, court yard, one store room are in possession of the plaintiff-landlord. 4. It may be stated that this is not the case where the plaintiff does not possess a house for his residence at Deoghar. In the disputed house four bed rooms, two kitchen rooms, one dining room varendah, court yard, one store room are in possession of the plaintiff-landlord. The other part of the house is in possession of the defendant which has three bed rooms, one kitchen and one varendah. The lower appellate court on consideration of these facts has also recorded a finding that the need pleaded by the landlord is not reasonable and bonafide and for this reason also the suit has been dismissed so far as the eviction is concerned. 5. It is now well-settled in law that the cause of action as to personal necessity must be in existence on the date the eviction ORDER :is passed. Need may appear or disappear during the pendency of the suit as well. A person can also maintain a suit of Personal necessity if need urged arises in foreseeable future. One can maintain a suit for personal necessity in anticipation of his requirement. For this reason the JUDGMENT : of the lower appellate court that on the date the suit was filed the plaintiff having not retired and therefore, there was no cause of action to maintain the suit is erroneous (See. J.G. Kohli vs. The Financial Commissioner, Haryana & anr., A. I. R. 1976 Punjab Hariyana 107, Ran Singh v. Sagar Chand, A.I.R. 1977 H.P. 21- Mohan Lal v. Tirath Ram Chopra & ano-A. I. R 1932 Delhi 405, Sachchidanand v. Heeranand-1983 B. B. C. J. 168 : 1983 PLJR 233 & Hasmat Rai v. Ragunath Prasad (A. I. R. 1981 S. C. 1711, 1113). 6. The JUDGMENT : of the lower appellate Court is in two parts. The second part, as I have already indicated above, deals with his need assuming the suit to be maintainable. The lower appellate court seemed to think that four bedrooms already in possession of the plaintiff is sufficient to fulfil his needs. Therefore, he is not entitled to remove the tenant from the other part of the house. The trial court, however, has recorded a finding that the plaintiff on his retirement bona fide intends to settle at Deoghar and that he is residing at Calcutta in a rented house. Therefore, he is not entitled to remove the tenant from the other part of the house. The trial court, however, has recorded a finding that the plaintiff on his retirement bona fide intends to settle at Deoghar and that he is residing at Calcutta in a rented house. It further held that the construction of the house is such that no partial eviction of the part in which the tenant is residing is possible. It is not at all possible, according to the trial court, with reference to the case map prepared, that the two families can reside side by side in the same house. Under the Bihar Buildings (Lease, Rent & Eviction) Control Act, it is the requirement of law that once the case of personal necessity is established, the court is further required to find out whether the need of the landlord can be fulfilled by the eviction of the tenant from a part or whole of the rented premises. It is for this reason that the trial court had to record a finding in this regard. Assuming the JUDGMENT : of the appellate court to be in two parts, as Mr. Jha, learned counsel persuaded me to read, I find it difficult to dismiss the suit of the plaintiff, because the appellate court has not considered whether the house could be shared by both the plaintiff and the defendant conveniently. It has not considered whether the house is in two units or is a compact one, as is now the requirement of law. Mr. Mukherjee wants me to accept the finding of the trial court in this regard and decree the suit of the plaintiff in toto, whereas Mr. Jha wants me to read the finding in paragraph no. 8 both on the question of necessity as well as the consideration of the question of partial eviction. In the case of Kedarnath Bohra v. Md. Safiulla (A. I. R. 1984 Patna 172 : 1983 PLJR 759 ) confirmed by the Full Bench in Gulab Chand Prasad v. Budhwanti and another (A. I. R. 1985 Patna 237 : 1985 PLJR 622 ) I held that while considering the question of partial eviction the court must bear in mind the convenience in the enjoyment of the property by both the landlord and the tenant. The same view has been taken in the case of Mrs. The same view has been taken in the case of Mrs. Veena Rani and others v. Mrs. Ishrati Amanullah and another (1985 Patna Law Journal Reports 391), where their Lordships while considering section 12(1)(c) proviso observed that the court on materials must be satisfied that the landlord and tenant both can conveniently occupy the same house as two units and that power cannot be exercised in a manner as if the court has to partition the building in question between the two co-sharers. The trial court appears to be aware of this position in law and, therefore, recorded a finding that the map prepared by the commissioner clearly shows that the house in question is a compact one and so the plaintiff and the defendant cannot reside side by side in the same house. My difficulty in accepting the submission of Mr. Jha is that the appellate court did not bear in mind the said requirement as well while holding that four bed rooms will satisfy the need of the landlord and there is no question of eviction of the tenant from any other part of the house. To be candid, the lower appellate court can not be said to have considered the requirement of section 12(1)(c) at all, as it was of the opinion that the plaintiff has failed to prove personal necessity. The question under section 12(1)(c) arises only when the court finds that the plaintiff has been able to establish personal necessity. In the instant case, as I have held, the lower appellate-court erred in law in holding that the plaintiff has no personal necessity; and once that part of the JUDGMENT : of the lower appellate court is set aside and that of the trial court is restored, the tenant is entitled to a consideration of the question of partial eviction from the appellate court as well. Had the appellate court decided the question of personal necessity otherwise, the tenant was entitled to press before it that the need of the landlord could be satisfied by his partial eviction. I, therefore, think that merely by setting aside the JUDGMENT : of the lower appellate court the plaintiff's suit cannot be decreed for eviction from the entire premises a occupation of the tenant. I, therefore, think that merely by setting aside the JUDGMENT : of the lower appellate court the plaintiff's suit cannot be decreed for eviction from the entire premises a occupation of the tenant. The lower appellate court still requires to decide the question under section 12(1)(c)-partial eviction-hearing in mind the law laid down in the case of Kedarnath Bohra (supra) and Mrs. Veena Rani and others (supra). 7. In the result, the appeal is allowed and the case is remanded to the lower appellate court to consider the question of partial eviction in accordance with law. There will be no ORDER :as to costs.