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1988 DIGILAW 93 (PAT)

Chhedi Ram v. Chhedi Ram

1988-03-15

S.B.SINHA

body1988
JUDGMENT S. B. Sinha, J. This application under section 14 (8) of the Bihar Buildings (Lease, Rent and Eviction) Control A( t, 1982 is directed ,against a judgment and decree dated 27-8-1987 passed by the learned Munsif, Bihar-sharif, in Eviction Suit No. 10 of 1986 whereby and whereunder a decree for eviction has been passed against the petitioner directing him to vacate the suit premises. 2. Before proceeding to note the facts of the case it may be mentioned that by an order dated 13-11-1987 this Court passed the following order: "The court below is directed to give a finding in respect of the proviso to section 11 (1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, after hearing both the parties and submit a report to this effect to this Court." 3. At that stage an application was filed by the petitioner on 15-2-1988 for permitting him to adduce additional evidence. The learned court below by an order dated 11-4-1988 rejected the said application on the ground that a similar application calling for admit card of the son of the plaintiff Was filed for the purpose of showing that the suit house was not required by the plaintiff; but the said application was rejected by an order dated 5-1-1988. The learned court below in his order dated 11-4-1988 inter alia held that the said Court at that stage was only concerned with giving a finding in terms of proviso to section 11 (I) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the said Act'). 4. The learned court below thereafter hearing the counsel for the parties passed an order dated 9-5-1988 wherein it was held that the plaintiff has also satisfied the requirement of proviso to section 11 (I) ( c) of the said Act. 5. In the aforementioned order it was inter alia held that regard being had to the location of the rooms of the suit premises, both the parties cannot conveniently occupy the same together. The learned court below has sent a copy of the aforementioned order dated 9-5-1988 along with his report dated 11-5-1988. 6. The petitioner thereafter filed another application raising various objections with regard to the aforementioned report on 11-7-1988. 7. The learned court below has sent a copy of the aforementioned order dated 9-5-1988 along with his report dated 11-5-1988. 6. The petitioner thereafter filed another application raising various objections with regard to the aforementioned report on 11-7-1988. 7. Facts:- The plaintiffs-opposite party filed Title Suit No. 10 of 1985 for eviction of the defendant-petitioner inter alia on the following allegations :- "(a) That the suit premises was owned and possessed by one Mohammad Salauddin, who inducted the petitioner as a tenant in the suit premises on a monthly rental of Rs. 75/-. The said Mohammad Salauddin sold the suit premises to the opposite party (nos.1 to 3) by three separate registered sale deeds dated 15-12-1983 on receipt of a consideration of Rs. 14,000/- from each of the plaintiffs. The respective purchasers got constructive possession over their respective purchased portions of the said property. 8. Plaintiffs-opposite party nos. 1 to 3 purchased portions of the property in suit in the following manner- (i) Opposite party no. 1 purchased part of Holding no. 75 measuring an area of 74'5” east west X 6 north south total area being 2 dhurs and 2 dhurkis situated at Mohalla Sherpur, Bihar-sharif of which the opening gate faces towards east and is bounded as follows ;- North - Haja Nij. South - Bhagwan Das East - Lane West - Ramhari Prasad (O. P. No. 3) Kharidar Holding Majkoor. (ii) Opposite party no. 2 purchased part of Holding no. 75 an area measuring 5'7” north south X 24'5" east west situated at Mohalla Sherpur, Bibarsbarif of which the opening gate faces towards east and is bounded as follows ;- North - Haja Nij purchaser South - Pano Devi (O. P. No.1) East - Lane. West - Haja Nij -Purchaser (Ramdhari Prasad) (O. P. No.3) (iii) Opposite party no. 3 purchased part of Holding no. 75 measuring 21 east west x 11’ 7" north south situated at Mohalla Sherpur, Bihar-sharif of which the opening gate faces towards west and is bounded all follows :- North - Nizamuddin South - Bhagwan Das shop and Raja Nij area 80 5" Chinta Purchasers. East - Pano Devi (O. P. No.1) Purchaser and Bhagwan Das. West - Road, Main Market. East - Pano Devi (O. P. No.1) Purchaser and Bhagwan Das. West - Road, Main Market. (c) The defendant petitioner is a tenant of the suit premises and in the western portion of the suit premises he is holding his shop and in the eastern portion of the suit building he is residing with his family. (d) That the defendant tenant was informed by the purchasers that they purchased the suit property and the tenant was asked to pay the rent but the tenant petitioner did not pay rent to the opposite parties landlords since the date of purchase and the petitioner has thus committed default in payment of rent. (e) That the opposite party require the Suit premises for their own use and occupation for the following reasons. The respective needs as pleaded in the plaint are - (i) Opposite party no. 1 has two sons who are reading in Nalanda College, Bihar-sharif; hence she requires a house in Bihar-sharif. (ii) Opposite party nos. 2 and 3 require the suit premises because the house which has been allotted to them on partition is too small and is not possible to accommodate the family and that opposite party no. 2 wants to open a ready made cloth shop and to do business in the suit premises. 9. The learned court below adopted special procedure for disposal of the suit in terms of section 14 of the said Act. In the said suit the petitioner filed an affidavit seeking permission to contest the suit and asserted inter alia therein as follows ;- "Opposite party no. 1 had been residing at Silao and the reasons for the need of the house as alleged are wrong. Similarly opposite party nos. 2 and 3 had been residing in the house peacefully and it is wrong to say that the house allotted to them is small and that there is shortage of accommodation". 10. The petitioner having obtained leave of the Court filed a written statement wherein inter alia it was contended as follows : "(a) Opposite party nos. 1 to 3 do not require the suit premises for their own use as alleged by them in the plaint. The sons of opposite party no. 1 are not reading in Nalanda College. The house allotted to opposite party no. 1 to 3 do not require the suit premises for their own use as alleged by them in the plaint. The sons of opposite party no. 1 are not reading in Nalanda College. The house allotted to opposite party no. 3 is a big house and there is no shortage of accommodation and that opposite party no. 2 is a pardanashin lady and cannot do business as alleged. Opposite party nos. 1 to 3, therefore, do not require the suit premises. (b) The suit as framed cannot be proceeded with under section 14 of the Act", 11. It may be mentioned here that earlier in the suit the plaintiffs also sought for eviction on the ground of default on the part of the defendant-petitioner but still then the learned court below treated the suit to be one under section 14 of the said Act, and passed a decree accordingly. 12. The petitioner thereafter came to this Court in revision against the said judgment which was marked as Civil Revision No. 1480 of 1986 and by an order dated 15-9-1986 this Court directed that the suit be bifurcated. In pursuance of the said direction, the suit in relation to the ground of default as taken in the plaint was separately registered as Case No. 18 of 1986. The said case is still pending. 13. The petitioner thereafter again filed additional grounds with regard to the plaintiffs plea of personal necessity and asserted as follows :- "(a) That each of the opposite parties has alleged to have purchased separate portion of the holding in suit and has also separately alleged their requirement of the purchased portion of the holding but the construction and the situation of the building is such that the holding purchased by the plaintiffs as per their purchase or even as a whole cannot be used or utilised as are required by the opposite parties. (b) That the opposite parties possessed other houses in the town of Bihar-sharif which are lying still vacant. (c) That if the court finds that the shop and the house are big and the opposite parties require the same, the court may kindly examine if the partial eviction of the petitioner will satisfy the need of the opposite parties". 14. (b) That the opposite parties possessed other houses in the town of Bihar-sharif which are lying still vacant. (c) That if the court finds that the shop and the house are big and the opposite parties require the same, the court may kindly examine if the partial eviction of the petitioner will satisfy the need of the opposite parties". 14. The opposite parties after remand of the case by the judgment of this Court in the aforementioned Civil Revision No. 1480 of 1986 did not adduce any fresh evidence and relied on the evidence which had already been adduced earlier. The petitioner, however, adduced further evidence and examined six witnesses. 15. The learned court below by reason of the impugned judgment held that the plaintiffs have been able to prove their respective requirements in respect of the different portion of the suit premises. 16. It may be mentioned that three plaintiffs purchased three different rooms by reason of three different sale deeds dated 15-12-1983 from one Md. Salauddin, who was the landlord of the petitioner. 17. However, it is admitted that the petitioner had been paying rent jointly to the plaintiffs. It is evident from the plaint that the suit of the plaintiffs was based on separate requirements of themselves. 18. From the plaint is appears that the requirement of the plaintiff no. 1 was that her sons Were reading in Bihar-sharif whereas she is resident of Silao and as such the portion which she had purchased is required for her occupation. 19. So far as plaintiff no. 2 is concerned, she wanted her portion of the snit premises for opening a readymade cloth shop. So far as plaintiff no. 3 is concerned who is husband of plaintiff no. 2, he stated that he was a resident of Silao but on partition of joint family property he has been allotted a small house and as such there has been a shortage of accommodation. 20. From the facts aforementioned it is evident that different plaintiffs have asked for a decree for eviction on their separate requirements. 21. In the impugned judgment, the learned court below did not record any finding that the requirement of plaintiffs in respect of premises in question is bonafide or reasonable. 20. From the facts aforementioned it is evident that different plaintiffs have asked for a decree for eviction on their separate requirements. 21. In the impugned judgment, the learned court below did not record any finding that the requirement of plaintiffs in respect of premises in question is bonafide or reasonable. However from the order dated 9-5-198'8 it appears that he gave such a finding along with his report in terms of the order of this court dated 13-11-1987. 22. Mr. Chunilal, the learned counsel appearing on behalf of the petitioner assailing the impugned judgment as also the order dated 9-5-1989 made the following submissions : (a) In view of the fact that during pendency of suit plaintiff's son ceased to be a student of the college at Bihar-sharif and by reason of this subsequent event, the plaintiff no. l's requirement has come to an end. (b) The learned counsel further submitted that plaintiff no. 3 who examined himself as p. w. 1 in paragraph nos. 7 and 8 of his deposition stated that he does not want to reside in the house and as such the question of is requirement of a portion of .the suit premises on the ground of shortage of accommodation does not arise. (c) So far as the requirement of plaintiff no. 2 is concerned, the learned counsel submitted that as p. w. 7 hi paragraph q of his deposition stated that the said plaintiff is confined to bed therefore, she is not in a position to carryon a business. (d) The finding of the alleged bonafide requirement by the learned court below is perverse. 23. In support of his submissions the learned counsel has relied upon M.M. Quasim v. Manohar Lal Sharma & ors. reported in A.I.R. 1981 S.C. 1113, Pasupuleti Venkate" swarlu v. The Motor & General Traders, reported in AIR 1975 SC 1409 and M/s -Variety Emporium v. V. R. M. Mohd. Ibrahim Nair, reported in A.I.R, 1985 SC 207. 24. The learned counsel has also drawn my attention to the fact that P.W. 1. in paragraph 9 of the judgment has stated that only one son was reading and as such it must be inferred that no other son of the plaintiff no. 1 is reading in the college and in that view of the matter the purported requirement of plaintiff no. in paragraph 9 of the judgment has stated that only one son was reading and as such it must be inferred that no other son of the plaintiff no. 1 is reading in the college and in that view of the matter the purported requirement of plaintiff no. 1 that a portion of the suit premises for that purpose does not hold good. 25. The learned counsel has further drawn my attention to an affidavit sworn by the petitioner wherein it is stated that only one of the sons of the plaintiff no. 1 was reading in the college and he had appeared at the examination and thus he was no longer a student of the college. 26. The learned counsel in support of his aforementioned proposition placed strong reliance upon 1981 S.C. 1711 (Hasmat Rai & anr. V. Raghunath Prasad), 1986 P.L.J.R. 734 (Tapsendra Nath Lal V. Norodh Baran Haldar), 1981 S.C, 1150 (Smt. Sushila Devi & ors. V. Avinash Chandra Jain & ors), 1984 P.LJ.R. 79 (S.C.)(Nasirul Haque V. Jitendra Nath Dey) and 1987 SC. 2048 (P:S. Krishnamchari V. Lalithe Ammal). 27. Mr. S.C. Ghosh, the learned counsel appearing on behalf of the opposite party, on the other hand, submitted that the jurisdiction of this court under section 14 (8) of the said Act, is a limited one and this court cannot exercise a jurisdiction in terms thereof which is wider than the jurisdiction of the court under section 100 C.P.C. According to the learned counsel the finding of the learned court below being findings of fact, this court will have no jurisdiction to interfere therewith. The learned counsel further submitted that the choice with regard to the occupation or a particular house being that of the plaintiff, this court has no jurisdiction to interfere therewith. The learned counsel in this connection has placed strong reliance upon A.I.R. 1982 Patna 190 (M/s. Tip Top and others-Vs-Smt. Indramani Devi) and A.I.R. 1987 S.C. 2131 (Dr. Saroj Kumar. Das -V- Shri Arjun Pd. Jogani). 28. The learned counsel further submitted that the learned trial court had rightly rejected the prayer of the petitioner for additional evidence filed on behalf of the defendant-petitioner as the plea to the effect that only one son of the plaintiff no. 1 was reading in the College had not been taken in the original written statement. Jogani). 28. The learned counsel further submitted that the learned trial court had rightly rejected the prayer of the petitioner for additional evidence filed on behalf of the defendant-petitioner as the plea to the effect that only one son of the plaintiff no. 1 was reading in the College had not been taken in the original written statement. According to the learned counsel in the reply filed by the plaintiffs for adducing additional evidence filed by, the defendant, the plaintiffs categorically stated that the plaintiff no. 1 had two college going sons and assuming for the sake of argument that one of the sons of the plaintiff no. 1 had come out of the college, the requirement of the plaintiff no. 1 with regard to her second son still exists and in this view of the matter the question for interference of this court so far as this part of the judgment is concerned does not arise. The learned counsel further submitted that in view of the fact that the plaintiff nos. 2 and 3 are husband and wife their requirement is joint as it has been stated by them in the plaint that they require the premises in suit for their residence. The learned counsel has further drawn my attention to the fact that the portion of the suit premises which has been purchased by the plaintiff nos. 2 and 3 are required for their business purpose and as the learned court below has found that they intend to start a readymade shop therein and in view of the finding of the learned trial court that the room adjacent to the shop room being small one, the requirement of the plaintiff nos. 2 and 3 would not be, sub served if the defendant is directed to be evicted from a portion of the suit premises in terms of proviso to section 11 (1) (c) of the said Act. 29. This case poses a peculiar question which according to the learned counsel for the parties is not covered by any direct decision. 30. The maintainability of the suit could have been challenged on the ground of multi fariousness in the cause of action for different plaintiffs for eviction of a common tenant are different. 31. However, in the instant case, although the plaintiffs have purchased different portion of the premises in suit from one Md. 30. The maintainability of the suit could have been challenged on the ground of multi fariousness in the cause of action for different plaintiffs for eviction of a common tenant are different. 31. However, in the instant case, although the plaintiffs have purchased different portion of the premises in suit from one Md. Salauddin but the defendant had attorned the plaintiffs as his joint landlords and had been paying the stipulated monthly rent jointly to all the three plaintiffs. 32. Although the plaintiffs had thus become the joint landlords of the defendant-petitioner in relation to the premises in suit their requirement in respect to the entire suit premises as one unit is not common in asmuch as each of the plaintiffs made their separate respective claims to the extent of the respective portions of the suit premises purchased by them. 33. In this situation, each of the plaintiffs has to prove his or her requirement in respect of different portions of the suit premises (If which they are the respective owners and in this view of the matter a common decree for eviction will not be permissible in law. 34. True it is that all the plaintiffs are joint landlords in respect of the premises in suit and each of them being a co-sharer of another would thus be 'landlord' in respect of the entire suit premises in terms of section 2 (f) of the said Act. 35. However in respect of the portion of the premises which one or the other plaintiff is not the owner he would merely be an agent of the other plaintiffs in relation thereto. If this be the legal position, in terms of explanation I appended to proviso to section 11 (1) (c) of the said Act, as the word 'landlord' does not include an agent referred to in clause (f) of section 2 thereof the plaintiff no. 1 would not be the landlord in respect of' the portions purchased by plaintiff nos. 2 and 3 and so on and so forth. 36. Thus each of the plaintiff must stand or fall on the respective grounds mentioned in the plaint on their own merit. 1 would not be the landlord in respect of' the portions purchased by plaintiff nos. 2 and 3 and so on and so forth. 36. Thus each of the plaintiff must stand or fall on the respective grounds mentioned in the plaint on their own merit. In this view of the matter the question as to whether the requirement of the plaintiffs would be sub served if the defendant is evicted from a portion of the suit premises becomes wholly irrelevant inasmuch as it stands admitted that there are only three rooms in the suit premises besides verandah, courtyard and one latrine as is evident from the plan of the premises in question which is on record. 37. On this backdrop the submissions of the learned counsel for the parties require consideration. 38. So far as the plaintiff no. 1 is concerned, it is evident that in the plaint it has merely been' mentioned that her sons are college going students. However it has come on record that only one of the sons was college going. 39. It is now well settled by various decisions of the Supreme Court of India that subsequent event may also be taken into consideration for the purpose of shortening litigations. Reference in this connection may be made to M/s Variety Emporium v. V.R.M. Mohd. Ibrahim Naina (reported in A.I.R. 1985 S.C. 207) M.M. Quasim v. Manohar Lal Sharma & ors. (reported in A.I.R. 198L SC 1113) and Pasupuleti Venkateswarlu versus The Motor & General Traders (reported in A.I.R. 1975 SC 1409). 40. However it is also now well known that the requirement must exist on the date of passing of a decree. Reference in this connection may be made to Hasmat Rai and another v. Raghunath Pd. (reported in AIR 1981 SC 1711 ) and Tapsendra Nath Lal v. Norodh Baran Haldar (reported in 1986 P.L.J.R. 734). 41. True it is that a subsequent event has to be taken with caution and some sort of circumspection. Reference in this connection may be made to Amarjit Singh v. Smt. Khatoon Quamarain, reported in 1987 SC 741 and D. K. Soni v. P.K. Mukherjee & ors. reported in 1988 vol.1 SCC 29. But in the instant case, as noticed hereinbefore, the petitioner had definitely contended that the college going son of the plaintiff no. 1 bad left the college. reported in 1988 vol.1 SCC 29. But in the instant case, as noticed hereinbefore, the petitioner had definitely contended that the college going son of the plaintiff no. 1 bad left the college. On the other band, it was the definite stand of the plaintiff no. 1 that her another son bad been reading in the college and as such her requirement of the suit premises has not come to an end. 42. In this situation, in my opinion, it was obligatory on the part of the learned trial court to give an opportunity to both the parties to amend their respective pleadings with regard to this subsequent event and also to permit them to adduce additional evidence in respect thereof. 43. So far as the requirement of plaintiff no. 3 is concerned, the statements made by him in his deposition to the effect that he does not want to reside in the premises in question appear to have not at all been taken into consideration by the learned trial court. 44. It is now a well settled principle of law that non consideration of a very vital evidence can be taken into consideration by the High Court in exercise of its power conferred upon it under section 115 of the Code of Civil Procedure. Reference in this connection may be made to Ajanath Transports Pvt. Ltd. v. M/s T.V.K. Transports Pulampatti reported in A.I.R. 1975 SC 123 and Ram Swarup Gupta v. Bishun Narain Inter College & ors. reported in A.I.R. 1987 SC 1242. 45. So far as the jurisdiction of a High Court in terms of section 14 (8) of the said Act, is concerned, there cannot be any doubt that the scope of revisional jurisdiction therein is wider than the scope of its jurisdiction under section 1I5 C.P.C. Reference in this connection may be made to Helper Girdharbhai v. Saiyed Md. Mirasaheb Kadri & ors. reported in 1987 vol.3 SCC 538 at 594 : 1987 SC 1782 at page 1987-88 (sic.). This aspect of the matter has also recently been considered by me in Civil Revision No. 262 of 1988 (Ramesh Chandra Agrawal and others v. Bhushan Ram) disposed of on 11-5-1988 wherein it was held as follows : "Such is not the position here. reported in 1987 vol.3 SCC 538 at 594 : 1987 SC 1782 at page 1987-88 (sic.). This aspect of the matter has also recently been considered by me in Civil Revision No. 262 of 1988 (Ramesh Chandra Agrawal and others v. Bhushan Ram) disposed of on 11-5-1988 wherein it was held as follows : "Such is not the position here. In terms of section 14 (8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, a High Court it entitled to call for the records of the case for the purpose of satisfying itself that an order under section 14 therein is according to the law and pass such order in respect thereof as it mayhink fit and proper." In P.R. Krishnamchari vs. Lalithe Ammal, reported in A.1.R. 1987 SC 2048, the Supreme Court has held that where the judgment of the court is perfunctory, a High Court in exercise of its revisional jurisdiction can remit the matter back to the trial court. The jurisdiction of the High Court, therefore, is evidently wider than the revisional power of this court as conferred upon it under section 115 of the Code of Civil Procedure. 46. In Vinod Kumar Arora vs. Surjit Kaur, reported in 1987 vol. 3 SCC 711 it was held as follows: "Learned counsel for the appellant repeatedly contended that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court was not entitled to disregard those findings and come to a different conclusion of its own and cited in this behalf the decision of this Court in Hiralal Vallabhram Vs. Sheth Kasturbhai, Lalbhai. The proposition of law put forward by the counsel is undoubtedly a well settled one but when it must be remembered that the rule would apply only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions. Sheth Kasturbhai, Lalbhai. The proposition of law put forward by the counsel is undoubtedly a well settled one but when it must be remembered that the rule would apply only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions. In this case when the government quarters occupied by the respondent consists of a single bedroom alone, it has been construed as comprising of three bedrooms; when the respondent wanted the entire house to be vacated by the two tenants so that she and her family members could occupy the whole house, the authorities have proceeded on the basis that the respondent was seeking recovery of possession of one hall alone for her residential needs, when the respondent had not demanded increase of rent, even as per the admission of the appellant, the authorities haw proceeded on the basis that the respondent was not likely to forego the income derived by way of rent for the hall etc. In such circumstances it is futile to say that the Rent Controller and the Appe11ate Authority have rendered their findings on the basis of hard and irrefutable facts. On the contrary the findings have been rendered on either non-existent or fictitious material. They cannot therefore be construed as findings of fact and once they cease to be findings of fact, they stand denuded of their binding force on the appellate or revisional court." 47. Further from the impugned judgment it appears that the learned court below has not at all assigned sufficient and cogent reason for coming to a finding as to whether the requirement of the plaintiffs are bonafide and reasonable or not. 48. True it is that he purported to have given such a finding along with its report dated 11-8-1988 which he has sent to this Court but the said finding cannot be taken into consideration in view of the fact that by the aforementioned order dated 13-11-1987 it would be evident that the learned court below was directed to give a finding only in respect of the proviso to section 11 (1) (c) of the said Act, and not in any other principle. While deciding the question as to whether a partial eviction of the tenant shall satisfy the reasonable requirement of the plaintiffs or not, the court exercises its limited jurisdiction and while doing so it could not have embarked upon the question as to whether the requirement of the plaintiffs themselves were reasonable or not. 49. Assigning of such a sufficient and cogent reason is a sine qua son for passing of a judicial order. In Dwarika Pd. Kejriwal vs Rajendra Pd. Sao, reported in 1980 PLJR 146 it has been held that if an order is not supported by reason the same can be set aside by the High Court even in exercise of its revisional jurisdiction under section 115 C.P.C. 50. Taking thus into consideration of pros and cons of the matter I am of the view that the case requires a thorough reconsideration at the hands of the learned trial court. 51. As indicated hereinbefore, before arriving at a finding with regard to the merits of the case the learned court below shall give an opportunity to the partie3 to adduce additional evidence with regard to the question of requirement of the plaintiff no. 1. 52. With the aforementioned observations and directions the impugned order is set aside and the application is allowed. However in the facts and in the circumstances of the case there will be no order as to costs. 53. In view of the findings aforementioned I do not consider it necessary to dwell upon the other contentions raised by the parties. 54. In view of the fact that the plaintiffs have filed a suit for decree on the basis of bonafide requirement as contemplated under section 11 (1) (c) of the said Act, in my opinion, it is just and expedient that the hearing of the case should be concluded as early as possible and preferably within a period of three months from the date of receipt of a copy of this judgment. 55. Let the lower court records be sent down forthwith. Application allowed.