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1986 DIGILAW 367 (PAT)

Tarun Kumar Ghosh v. Bhola Ram Parsuramka

1986-11-27

S.SHAMSUL HASAN

body1986
JUDGMENT : S. Shamsul Hasan, J. These two applications have been heard together and are being disposed of by this common JUDGMENT : since both of them involve a common question of law arising out of the proviso to section 12 (1) (c) of it he Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977 (hereinafter referred to as 'the Act'). 2. In both these applications, landlord is the opposite party and the petitioners are the two tenants occupying two blocks of the same building. Eviction is sought on the ground of personal necessity which has been accepted by the trial Court without admittedly observing the requirements of proviso to section 12 (1) (c) of the Act in other words, without examining whether the personal necessity of the plaintiff-landlord will be satisfied by evicting the tenant from a part of the premises in question. It is a common ground that there was no pleading by any of the parties in regard to proviso to section 12 (1) (c) except there is general denial that the plaintiff-opposite party's claim of personal necessity is unjustified and unworthy of acceptance. 3. Learned Counsel for the petitioners, in both the cases, relied on well known decisions of the Supreme Court reported in AIR 1978 SC 413 (Rahman Jeo Wangnoo v. Ram Chand and others) and AIR 1984 SC 1799 : 1984 PLJR (S.C.) 79 (Nasirul Haque v. Jitendra Nath Dey). In reply, however, learned Counsel for the opposite party plaintiff relied on the decisions of this Court reported in 1985 PLJR 390 (Mrs. Veena Rani and others v. Mrs. Ishrati Amanulla and another) and 1985 PLJR 727 (Om Prakash Sharma v. Kishun Mistry). Their Lordships in the case of Mrs. Veena Rani and others v. Mrs. Ishrati Amanulla and another (supra) after noticing the decision in the case of Rahman Jeo Wangnoo v. Ram Chand and others (supra) on stating that this point was never urged in the trial court and no evidence was led, went on to decide the matter on the basis of the evidence of the plaintiff's witnesses who had described the suit premises and the size of the family and then came to a conclusion that partial eviction will not satisfy the genuine need of the landlord. Further, this decision spells out the guidelines when dealing with the question of assessing the possibility of satisfying the need of the plaintiff by partial eviction. It will be useful to quote the relevant passage of this decision:- "12 ........ This point was never urged before the trial court by the defendants, and as such, no evidence has been adduced on behalf of the parties. It cannot be disputed that this issue can be decided only if parties are given opportunity to adduce evidence....... .." x x x “It need not be pointed out that before a decree for eviction for part of the premises in question can be passed, the court on the materials must be satisfied that the landlord and tenant both can conveniently occupy the same house as two units, that power cannot be exercised in a manner as if the court has to partition the building in question between two co-sharers. As such, in my opinion, there is no scope for decreeing the suit for eviction for the part of the premises." 4. The Supreme Court, however, has directed the adoption of a procedure quite different from one adopted by the Bench of this Court. It may be useful to quote the relevant part of the decision of the Supreme Court in Rahman Jeo Wangnoo's case (supra) :- "... ... The trial court and the first appellate court have really not considered this question on the merits; indeed evidence itself has not been taken on the score that there has been no specific plea in that behalf. We are satisfied that the proviso aforesaid mandates the court to consider whether partial eviction as contemplated therein should be ORDER :ed or the entire holding should be directed to be evicted. We are satisfied that the proviso aforesaid mandates the court to consider whether partial eviction as contemplated therein should be ORDER :ed or the entire holding should be directed to be evicted. This aspect, therefore, requires judicial exploration after giving opportunity to both sides to lead evidence in this behalf." From the above, it is patently clear that the Supreme Court felt that the trial court was misled by the absence of the pleadings and, therefore, their Lordships of the Supreme Court were further pleased to direct as under :- “........The Court must proceed on the footing that the absence of a specific pleading under the said proviso does not stand in the way of the obligation of the Court to act in compliance with the mandate of the statute......” The above indicates the steps approved by the Supreme Court. The Supreme Court directed the matter to be reheard by the trial court by allowing the parties to lead evidence within the ambit of proviso to section 12(1)(c) of the Act though there is absence of the pleadings in this regard. Guidelines have also been mentioned in the case of Nasirul Haque v. Jitendra Nath Dey (supra) which I would like to quote as below:- “......The trial court while recording its finding was of the view that the question of partial eviction should be considered in the light of the requirement of the landlord as deposed to by him. In doing so, the High Court ought to take into account the proviso to Section 12(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act of 1977, which in terms enjoins that what is necessary to be considered is the 'reasonable' requirement of the landlord and whether it would be substantially' satisfied by evicting the tenant from a part only of the premises. The Court bas, therefore in the first instance, to determine the extent of the premises which the landlord "reasonably" requires Determine it objectively and not on the basis of his ipse dixit or his mere desire to occupy as much as he wants. But the Court has to furthermore apply a test as to whether such requirement, as the Court considers reasonable, will be 'substantially' satisfied (not fully satisfied) by ORDER :ing partial eviction. This vital aspect has been altogether overlooked by the trial court. But the Court has to furthermore apply a test as to whether such requirement, as the Court considers reasonable, will be 'substantially' satisfied (not fully satisfied) by ORDER :ing partial eviction. This vital aspect has been altogether overlooked by the trial court. Secondly since the High Court had directly called for a finding from the trial court itself, the High Court should have scrutinized the said finding with special reference to the question of partial eviction even on facts as the finding of the trial court-standing on its own (not confirmed by the appellate court) is not conclusive on facts even in the second appeal. This is so because the High Court had called for a finding of fact from the trial court by-passing the appellate court and thus deprived the right of appeal to the District Judge (last court on facts) which, for aught we know might not have agreed with the trial court and may have considered the question from the point of view indicated by us, viz., giving full effect to the concert of reasonable extent of the requirement from the perspective of 'substantial' satisfaction of such requirement as considered to be reasonable objectively... ......" 5. I may, in this connection, recall a Bench decision of Court rendered by me sitting with Hon'ble the Chief Justice who was pleased to endow his agreement in the case of Satya Narain Pd. Gupta and anr. v. Smt. Ram Dulari Devi and another ( 1986 PLJR 31 ). In this case it was held in paragraph 5 as under :- ".....A clear distinction, therefore, emerges between a situation in which there is no pleading at all by the defendant relevant to the issue and in which a specific statement is made in the written statement which is destructive of the very root of the question of partial eviction. In the former the Court is required to allow a party to lead evidence and is directed to give a finding in regard to the satisfaction of substantial need of the landlord by partial eviction. In the latter, however, on the pleading itself the Court cannot and should not embark on all enquiry of the nature required in regard to the partial eviction to satisfy substantial need of the landlord. In the latter, however, on the pleading itself the Court cannot and should not embark on all enquiry of the nature required in regard to the partial eviction to satisfy substantial need of the landlord. Use of a positive statement by a party in d pleading can without doubt be used against him, if applicable detrimentally, particularly when the Supreme Court only emphasises the absence of a pleading and does not say that the opportunity must be given in spite of a pleading adverse to the application of the relevant statute..." This is, in my view, the only interpretational departure that is possible otherwise there would be no option at all but to remit the matter to the trial court for rehearing on this point or to call for a finding which could then be examined by the High Court on all its legal and factual aspect. 6. Therefore, if I may say so with extreme deference to the authors of the decision in the case of Mrs. Veena Rani (supra), ex facie, the observation in this case does not appear to have been followed faithfully. I am, therefore, observing the legal situations spelt out in the aforesaid two decisions of the Supreme Court. 7. I may reiterate that the trial court, in the instant case, has not considered the aspect arising from the application of proviso to section 12(1)(c) of the Act and in fact not even gone into the matter at all perhaps because of the absence of the pleadings in this regard. The impugned ORDER :s in both the applications, are hereby set aside and the matter is remanded back to the trial court to decide the point arising out of proviso to section 12(1)(c) of the Act and decide the question whether personal necessity of the landlord will be satisfied by the partial eviction of the defendants-tenants. It should then take steps as directed in the case of Rahman Jeo Wangnoo v. Ram Chand and others (supra) by the Supreme Court. 8. Both the applications are allowed but without costs. Needless to say that since the case involves the question of personal necessity at the landlord the court below should decide the matter within two months from the date of receipt of this ORDER :. Parties, who have appeared in this Court, should appear before the trial court within one week from today. Needless to say that since the case involves the question of personal necessity at the landlord the court below should decide the matter within two months from the date of receipt of this ORDER :. Parties, who have appeared in this Court, should appear before the trial court within one week from today. Let the lower court records, if received, be sent down immediately. Applications allowed.