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1985 DIGILAW 47 (GAU)

Pokarmal Radhakishan v. Mustt. Radha Devi Agarwalla and Others

1985-11-25

T.C.DAS

body1985
The defendant is the revision petitioner who has been unti­ringly fighting out an eviction suit since 1967 when the oppo­site parties as plaintiffs brought the Title Suit No. 44 of 1967 against the petitioner seeking for eviction from the premises in question. The dispute between the parties entered the premi­ses of this Court in the year 1973 in the shape of a second appeal wherein the plaintiffs were the appellants. However, on the application of the plaintiffs and in view of the decision of this Court in L. P. A. No. 11 of 1976, the second appeal was converted to a revision petition by the order dated 21.4.80. and was renumbered as Civil Revision No. 84 of 1980. This Court while deciding the said revision petition, remanded the case back to the appellate Court below with the following direction : "The learned appellate Court below will dispose of the case on considering the evidence what are available on record. Consequently, the judgment and decree passed by the learned appellate court are set aside. While remand­ing the case, I direct that the parties should appear be­fore the appellate Court on 21.11.83. 2. The learned appellate Court accordingly disposed of the appeal by the impugned judgment and decree dated 6.6.84 and dismissed the appeal of the present petitioner (defendants) by deciding the issue No. 6 in favour of the plaintiffs-respondent. Con­sequently, the judgment and decree passed by the learned Munsiff in favour of the plaintiffs in Title Suit No. 44 of 1967 stood affirmed. Therefore, the defendant has again approached this Court by this revision petition for relief. 3. The legal dispute in this revision petition as raised by the petitioner centres round the issue No. 6, which runs as follows : "Whether the suit rooms are bona fide required by the plaintiffs ?" After remand, the appellate court expressed the concurrent view with that of trial Court holding that the suit rooms are bona fide required by the plaintiffs. 4. This is a long pending matter and the entire dispute of the parties centres round the only one legal issue since 1967 : Whether the plaintiffs could prove that they require the suit premises bona fide ? 4. This is a long pending matter and the entire dispute of the parties centres round the only one legal issue since 1967 : Whether the plaintiffs could prove that they require the suit premises bona fide ? In Dwarka Prasad v. Dwarka Das Saraf, as reported in AIR 1975 SC 1758 , their Lordships of the Su­preme Court observed that the rent control law has been a rich source of lengthy litigation in the country and the prese­nt case is also an illustrative one which originated in the year 1967 and has not come to an end till now. 5. In nut-shell, the facts of this litigation may be narra­ted as follows : The opposite parties, who were plaintiffs in Title Suit No. 44 of 1967 in the Court of Munsiff at Sibs-agar, sought for eviction of the defendant from the suit premi­ses mainly on the ground of bona fide requirement for the pl­aintiffs' use and occupation for their residential-cum-business purposes. The main plea of the plaintiffs that the plaintiff No. 2, a minor son of plaintiff No. 1, got the suit premises after partition between their family members and the plaintiffs require the suit premises for separate and independent business for the use and benefit of the minor plaintiff No. 2. This requirement and use is necessary to make both present and future provision for plaintiff No. 2 and to give him a footing to stand upon when he would become major. The plaintiffs pleaded that on being requested, the defendant failed to vacate the pre­mises and that gave a cause of action for the plaintiffs to in­stitute the suit. The suit was contested tooth and nail by the defendant. In the written statement the defendant also denied the contentions made by tae plaintiffs. The defendant also denied the plea of bonafide requirement of the suit premises by the plaintiffs. The defendant further averred that the plaintiffs illegally wanted to raise the rent from Rs. 160/- to Rs. 250/- per month and the defendant having refused to comply with the proposal made by the plaintiff No. 1 regarding enhancement of rent, the suit was filed to evict the defendant. The pleadings of the parties gave rise to an many as seven issues, out of which issue No. 6 watt the focal point for contest between the parties. 6. Mr. The pleadings of the parties gave rise to an many as seven issues, out of which issue No. 6 watt the focal point for contest between the parties. 6. Mr. N. M. Lahiri, the learned counsel for the petitioner, while criticizing the impugned judgment and decree of the lea­rned appellate court below has urged before me that the evide­nce as regards bona fide requirement being meager in substance, the learned appellate Court ought to have held that the plaintiffs could not prove issue No. 6 as required to be proved under the law and as such the impugned judgment and the consequent decree are liable to be set side. In the above context, Mr. Lahiri has drawn my attention to a decision of this Court rendered in Manas Kamal Bhowal v. Satyandra Ch. Gupta, as repor­ted (1982)/GLR 653, In Manas Kamal (supra) this Court held that if the Court finds absence of any bona fide requirement in evidence or that the plaintiff could not prove the genuine need, the Court cannot have any jurisdiction to pass a decree for eviction under the provisions of section 5 (1) of the Assam Urban Areas Rent Control Act. It was also held that the decision on the issue of bona fide requirement must be conclusive on the basis of the evidence on record. If the plaintiff failed to prove the genuine need in respect of the suit premises, and if the pro­vision of section 5(1)(c) is not satisfied by the evidence on record, the Court cannot have any jurisdiction to pass a decree for eviction of the defendant. The next -submission of Mr. Lahiri, the learned counsel for the petitioner is that the concl­usions reached by the learned appellate Court below on the basis of the evidence on record appears to be wrong inas­much as there is no clear and cogent evidence on record about particulars for any genuine need. The burden of proof, no doubt, lies on the plaintiff to prove bona fide requirement. Now the main consideration is as regards the finding of the learned appellate Court below in the light of the evidence on record as to whether the plaintiffs could prove "bona fide requirement" to at a decree for eviction of the defe­ndant. 7. Mr. The burden of proof, no doubt, lies on the plaintiff to prove bona fide requirement. Now the main consideration is as regards the finding of the learned appellate Court below in the light of the evidence on record as to whether the plaintiffs could prove "bona fide requirement" to at a decree for eviction of the defe­ndant. 7. Mr. J. P. Bhattacharjee, the learned counsel appearing on behalf of the opposite parties has pleaded before me that the bona fide requirement as stated in the plaint was for the plaintiff No. 2, who was a minor at the time of filing the suit and that too for keeping the provision for his business in future. It has been further submitted by the learned counsel that by this time the plaintiff No. 2 has become major and is capable of conducting the business by himself alone. Therefore, this subsequent event may also be considered by the Court. My attention has been drawn to the decision of the Supreme Court in Pasupulati Venka-teswarlu v. The Motor A General Traders (AIR 1975SC 1409). It was observed by their Lordships as follows: "If a fact, arising after the Us has come to court and has a fundamental impact on the right to relief or the manner of mounding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrial remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated with a view to promote substantial justice subject, of course, to the abse­nce of other disentitling factors or just circumstances." 8. It has been further pleaded by Mr. Bhattacharjee, the learned counsel for the opposite parties, that this being a revis­ion application, this Court has limited jurisdiction and shall not enter into the facts either for the purpose of fresh assessment or for depreciation of the evidence. The findings as to the existence or non-existence of any bona fide requirement or genuine need is a pure finding of fact and in exercising a revisional jurisdiction this Court shall not interfere with those findings if no jurisdictional error arises in the record. 9. The contour of power of High Court under section 115 C. P. C. to interfere with the concurrent findings of fact is no longer res-integra. 9. The contour of power of High Court under section 115 C. P. C. to interfere with the concurrent findings of fact is no longer res-integra. In catena of cases their Lordships of the Supreme Court issued mandate that the High Court should be reluctant to interfere with the concurrent findings of facts and to remove the defects of facts mainly on the basis of evidence howsoever gross that may be, if it does not touch the jurisdi­ction of the Court to decide the case itself. The High Court has limited power in the field of its revisional jurisdiction and except in cases of grave jurisdictional error, the High Court shall not interfere with the concurrent findings of fact of the Courts below if no miscarriage of justice and grave injury is caused to the party. The core question to be decided in this revision petition is 'whether the plaintiffs could prove the bona fide requirement". To appreciate the rival contentions of the parties it would be appropriate to set out herein below the material provisions of section 5 of the Assam Urban Areas Rent Control Act, 1966 as substituted by the Assam Urban Areas Rent Control Act, 1972, for short 'the Act' : "5. (1) No order or decree for the recovery of po­ssession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy : Provided that nothing in this sub-section shall apply in a suit or proceedings for eviction of the tenant from the house :- (a) (b) (c) where the house is bona fide required by the land­lord either for purposes of repairs or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the land­lord can show any other cause which may be deemed satisfactory by the Court, or........ " 10. The provisions of the Act puts fetters on the right of the landlord to evict his tenant from the premises occu­pied by him with a view to protect the interest of the tenant. The landlord cannot evict a tenant by virtue of a decree if any of the conditions of section 5 is not satisfied. The crucial words in clause (c) of section 5 (1) are "bona fide required". The landlord cannot evict a tenant by virtue of a decree if any of the conditions of section 5 is not satisfied. The crucial words in clause (c) of section 5 (1) are "bona fide required". The word "bona fide" connotes genuine need and honest intention. The words "bona fide re­quired", therefore, connotes that the landlord genuinely, pressingly and honestly needs the premises in question for his use. On the word "required" the Supreme Court observed that the word "required" signifies that mere desire on the part of the landlord is not enough but there should be element of need and the landlord must show, the burden being upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business. (See Mottulal vs. Radha Lal AIR 1974 SC 1596 ). 11. Let me now apply the test to the facts of the pre­sent case. The learned appellate Court in the impugned judg­ment has referred few portions of the evidence on record. The learned appellate Court did consider the evidence of the plain­tiffs on Issue No. 6 and quoted the following relevant evidence in this connection : The plaintiff No. 1 stated in her evidence : "The suit house in the instant case belongs to Pradip Kumar Agarwalla. He is aged 7 (seven) years sow. I maintain the properties falling in the share of Pradip.” "The house is required by me. It ii being required in order to open a shop in the name of Pradip Kumar. The shop is necessary to be started in order to make provision for the future of Pradip Kumar..... 12. Mr. N. M. Lahiri, the learned counsel for the peti­tioner has strenuously urged before me that no particular av­erments are made in the plaint as regards requirement of the suit premises. In paragraph 5 of the plaint, the plaintiffs state : "5. The house in suit is bone fide required by the plaintiff both for residential purpose and starting a se­parate and independent business for the use and bene­fit of the minor plaintiff No. 2. In paragraph 5 of the plaint, the plaintiffs state : "5. The house in suit is bone fide required by the plaintiff both for residential purpose and starting a se­parate and independent business for the use and bene­fit of the minor plaintiff No. 2. This has become nece­ssary because as an incident of partition amongst the family members of the plaintiffs and by virtue of a gift of the house in suit, amongst others, the house in suit is the only place for the plaintiff No. 2 where he can be separately, conveniently and independently maintained by starting and carrying on an independent business on his account at Sibsagar Town. This requirement and use are also necessary to make both present and future provision for the minor plaintiff No. 2 and to give him a footing to stand upon when he will become an adult." 13. In my opinion, the plaintiffs have sufficiently stated in the aforementioned paragraph No. 5 of the plaint about the need of the suit house for their use and occupation. The pleadings cannot be treated as evidence, but the contentions made in the plaint are to be supported by cogent and reliable evidence. The plain­tiff is the best person to say about the bona fide requirement of the suit premises. Plaintiff No. 1, the mother of plaintiff No. 2, while deposing had specifically stated about the requirement and from her evidence it is crystal clear that they had a gen­uine need. Mr. Lahiri, the learned counsel for the petitioner has further submitted before me that there is no full and su­fficient particulars in the plaint as to who and how the shop will be managed and nobody has been examined who would be entrusted to manage the shop, the plaintiff No. 1 being a 'Pardanashin' lady. But it is seen in evidence that for the in­terest of the minor (plaintiff No. 2), the plaintiff No 1 wanted to open a shop in the suit premises in order to provide the plaintiff No. 2 with an independent business when the plaintiff No. 2 would become major. The witness, defendant No. 1, in his evidence could not say if the house was required to open a shop to make provision for Pradip, the plaintiff No. 2. Mr. Lahiri, the learned counsel for the petitioner has placed reli­ance on another decision of the Supreme Court (Mst. Boga. The witness, defendant No. 1, in his evidence could not say if the house was required to open a shop to make provision for Pradip, the plaintiff No. 2. Mr. Lahiri, the learned counsel for the petitioner has placed reli­ance on another decision of the Supreme Court (Mst. Boga. Begum & ors. v. Abdul Ahad Khan) as reported in AIR 1979 SC 272 . While dealing with the provisions of J. & K. Houses and Shops Rent Control Act (34 of 1966) their Lordships had the occa­sion to interpret the meaning of the words "reasonable requi­rement" as laid down in section 11(1) (h) of the said Act. In paragraph 18 of the judgment, their Lordships held : "Having regard, therefore, to the circumstances men­tioned above, we are unable to subscribe to the view that the words 'own occupation' must be so narrowly interpreted so as to indicate actual physical possession of the landlord personally and nothing short of that. We, therefore, overrule the argument of the respondent on this point." 14. It was further held by their Lordships "that the whole object of the Act is to provide for the control of rents and evictions, for the leasing of buildings etc. and section 21 speci­fically enumerates the grounds which alone will entitle a land­lord to evict his tenant". Here, in our case, the provisions of the Act are worded differently. In section 5 (1) (c) of the Assam Act the bona fide requirement does not only relate to the land­lord alone, but also to such person for whose benefit the house is held. It does not stop there. It further provides that if the landlord could show any other cause which may be deemed satisfactory by the Court, the landlord can get recovery of posse­ssion of any house by virtue of a decree. If the Court is satisfied that the landlord has proved bona fide requirement or even on any other satisfactory cause, he can get a decree for eviction of the tenant. In course of argument it is further submitted by Mr. If the Court is satisfied that the landlord has proved bona fide requirement or even on any other satisfactory cause, he can get a decree for eviction of the tenant. In course of argument it is further submitted by Mr. Lahiri that the plaintiff No. 2 (opposite party No. 2) became major, but the plaintiffs failed to bring to the notice of the Court that fact and furthermore the need which existed at the time of filing of the suit has changed its course and as such there is no existing need for the suit premises in question. This point has been sufficiently replied by Mr. J. P. Bhattacharjee, the learned counsel for the plaintiffs opposite party. It is submitted by Mr. Bhattacharjee that in the ear­lier proceedings in this Court, namely, in Civil Revision No. 84 of 1980, this fact was brought to the notice of the Court by filing an affidavit in support of the application under section 151 of the C. P. C. and this Court passed an order while dispo­sing of the Civil Revision No. 84 of 1980 stating inter alia that the plaintiff No. 2 (opposite party No. 2 hereto) has attai­ned majority during the pendency of the second appeal. 15. The next question is to consider as to whether the Court can take into consideration the subsequent events. Reli­ance has been placed by Mr. J. P. Bhattacharjee, the learned counsel for the opposite party on a decision of the Supreme Court rendered in M/s Variety Emporium vs. R. M. Mohd. Ibrahim Naina, as reported in AIR 1985 SC 207 , where their Lordships have held : “No authority is needed for the proposition that, in appropriate cases, the Court must have regard to events as they present themselves at the time when it is hearing the procee­ding before it and mould the relief in the light of those events." 16. In Hasmat Rai vs. Raghunath Prasad, AIR 1981 SC 1711 , their Lordships have held : “Then an action is brought by a landlord for the evict ion of a tenant on the ground of personal require­ment, the landlord's; need must not only be shown to exist on the date of the appellate decree, or the date when a higher Court deals with the matter. During the progress and passage of proceeding from Court to Court, if subsequent events occur which, if noticed would non­ suit the landlord, the Court hays to examine and evaluate those event s and mould the decree accordingly, The tenant in entitled to that 4he need or requirement of the landlord no more exists by pointing out such subsequent events, to the Court, including the appellate Court. In such a situation, it would be incorrect to say that as a decree or order for. eviction is passed against the tenant, he cannot invite the Court to take into consideration subsequent events. The tenant can be precluded from so contending on when a decree or order for eviction has become final." 17. The original theme of the plaintiffs' suit for eviction of the defendant was based on section 5 (1)(c) of the Act. It was averred in the plaint, supported by evidence, that for the minor son of plaintiff No. 1 the suit house was necessary in order to open a shop which would be continued by the plain­tiff No. 2 even after his attaining majority. There was no chance of any discontinuance, nor any change of events occurred after the plaintiff No. 2 became major. The concurrent finding of fact of both the Courts below as regards bona fide require­ment appears to be convincing based on evidence on record. I, therefore, do not find any material to interfere with those concurrent finding of fact. The plaintiffs could prove with cogent and reliable evidence about their bona fide require­ment of the suit premises and in the light of the deci­sions as alluded above. I am convinced that the Plaintiffs have proved their genuine need for the suit premises in qu­estion and they had been able to fulfil the conditions by disc­harging the burden. Therefore, the contentions of Mr. Lahiri the learned counsel for the petitioner cannot be accepted on the facts and circumstances of the case. I do not find any mate­rial to interfere with the findings of the learned appellate Co­urt below on issue No. 6. This revision petition has no merit. 18. In the result, the petition is dismissed, but in view of the facts and circumstances of the case, the parties are left to bear their own costs in this Court. Send down the case re­cords to the Court below.