Amla Mazumdar v. Bishwanath Pabra — 1997 DIGILAW 641 (PAT)

Judgment Gurusharan Sharma, J. 1. Smt. Ram Pyari Devi (Pabra) filed Title, (Eviction) Suit No. 77 of 1981 in the Court of Munsif, Katihar against Rama Kant Mazumdar for eviction from holding No. 83, within ward No. 15, located adjoining west of Lea Road, Katihar, under the provisions of the Bihar Buildigns (Lease, Rent and Eviction) Control Act, 1977 (hereinafter referred to as the Act) on the ground of personal necessity and default in payment of rent. Further relief was also sought for a decree of arrears of rent. Full description of the suit premises was given in Schedule-B to the plaint. 2. The plaintiffs claimed herself to be the owner of the suit premises, bearing holding No. 83. The plaintiff and her son Bishwanath Pabra got another holding No. 84 adjoining north of holding No. 83. Both of them have one more holding situate at Mahalla Amlatola of Katihar town within residential area of ward No. 9.The original defendant was inducted as tenant in one room of holding No. 83, at a monthly rental of Rs. 60.00 per month. Subsequently, another room of the said holding adjoining west of the said eastern room let out to the defendant earlier, was also let out to him at a rental of Rs. 30.00 per month. After construction of pacca platform over municipal drain by the plaintiff the said platform was also included in the tenancy of the defendant alongwith the said two rooms and he started paying monthly rental @ Rs. 100.00 . Always printed rent receipts for payment of rent were used to be granted to the defendant and their counter foils were retained by the plaintiff. 3. Holding No. 83 was held by the plaintiff for the benefit of her son, Bishwanath Pabra. It was situated at a very important place of business of Katihar town. The premises was required to establish her son in business of wholesale and retail handloom cloth shop. 4. Earlier the plaintiff had instituted Title Suit No. 129 of 1967 against the defendant for eviction from the suit premises on the ground that she required it reasonably and in good faith for her personal use and occupation. At the intervention of the well wishers of the parties, there was a compromise between the parties outside the court and a compromise petition was filed in the said suit. At the intervention of the well wishers of the parties, there was a compromise between the parties outside the court and a compromise petition was filed in the said suit. According to the terms of compromise the defendant had to quit and vacate the suit premises at the end of May, 1980 and put the plaintiff in vacant and khas possession thereof on 1.6.1980. 5. On 10.9.1971 a registered lease deed (Ext. 2) creating fresh tenancy for a specified period was jointly executed by both the plaintiff and the defendant. The defendant did not vacate the western room on the expiry of the said period, inspite of demand made by the plaintiff. The suit premises was most fitted for starting wholesale and retail business of handloom cloth by the plaintiffs son. The defendant also defaulted in payment of rent from June, 1980 to July, 1981 and made himself liable to be evicted under the Act, A sum of Rs. 1540.00 being arrears of rent was also claimed by the plaintiff. 6. The defendant admitted the ownership of the plaintiff over the suit holding which was situated at a very important place of business of Katihar town. She got another holding No. 84 adjoining north of the suit holding No. 83. The third holding of the plaintiff was a residential building but it was also fit for carrying on business of handloom cloth. The defendant admitted the pacca platform as part of the suit premises, but denied plaintiffs alleged requirement of the suit premises for her son, Bishwanath Pabra to start wholesale and retain handloom cloth shop. 7. The defendant pleaded that the terms of compromise of Title Suit No. 129 of 1967 to vacate the suit premises by the end of May, 1980 was accepted by him under coercion and duress. 8. The plaintiff refused to accept rent from the month of June, 1980 and hence the defendant started remitting rent by postal money order for the month of June, 1980 onwards within time and the plaintiff went on refusing to receive those money orders. The defendant maintained books of account in normal course of business and details of remittance of rent through money orders and refusal thereof stood incorporated in the said books of account. 9. The defendant maintained books of account in normal course of business and details of remittance of rent through money orders and refusal thereof stood incorporated in the said books of account. 9. The suit was decreed by the trial court holding that rent from June, 1980 to July, 1981 was not validly and legally remitted to the plaintiff through money orders and hence defendant became defaulter in payment of rent for the said period and made himself liable for eviction from the suit premises on the ground of default in payment of rent. The plaintiff required the suit premises reasonably and in good faith for occupation of her son, Bishwanath Pabra for opening handloom cloth shop and on the said ground also she was entitled to a decree for eviction. The plaintiff was also entitled to costs alongwith the decree for Rs. 1540.00 as arrears of rent. 10. On appeal by the defendant, against the said eviction decree the first appellate court dismissed the same and affirmed the findings of the trial Court on both counts i.e., the plaintiffs personal necessity as well as the defendants default in payment of rent. 11. The defendant, thereafter, filed the present second appeal in this Court which was dismissed on 15.5.1991 at the stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure itself. While dismissing the appeal this Court observed that there was no dispute about the factual position that the appellant was the tenant in respect of two separate buildings for which rent was being paid separately. But instead of sending rent by money order separately for each of the tenancy, the appellant sent the rent by only one money order. The courts below rightly held that remittance of rent by money order was not valid. It was, therefore, found that there was no infirmity in the findings of the courts below and no substantial question of law arose in this appeal. In view of the said findings the appeal failed on the ground of default. This Court, thereafter, observed as under: In my opinion, Whether the appellant will succeed in his challenge of the decree passed on the ground of personal necessity need not be gone into. 12. In view of the said findings the appeal failed on the ground of default. This Court, thereafter, observed as under: In my opinion, Whether the appellant will succeed in his challenge of the decree passed on the ground of personal necessity need not be gone into. 12. The matter went to the Apex Court in Special Leave Petition (Civil) No. 10782 of 1991 and after grant to leave it was converted into Civil Appeal No. 4529 of 1992 and was disposed of on 19.10.1992. 13. The Apex Court was pleased to set aside the judgment dated 15.5.1991, passed by this Court for fresh disposal confining only to the question of personal necessity of the respondent. Till disposal of the instant Second Appeal by this Court the status-quo was directed to continue. The relevant portion of the aforesaid order of the Apex Court runs as under: As the High Court has not rendered any findings on this ground of personal necessity, we hold that the interest of justice demand the matter to be remitted to the High Court for fresh disposal on the available materials as regards the personal necessity of the demised premises to the respondent. 14. In view of the remand order of the Apex Court, in course of consideration of the findings recorded by the two courts below on the plaintiffs requirement of the suit premises under Sec. 12(1)(c) of the Act, I find that the plaintiff examined P.Ws. 4, 5, 9, 12 and 13 in support of her claim for requirement of the premises for starting handloom cloth business by her son, Bishwanath Pabra. The plaintiff got herself examined as P.W. 1 and her son for whom the premises was required was examined as P.W. 10. 15. On the basis of evidence of the aforesaid witnesses on behalf of the plaintiff the Courts below found that the plaintiff succeeded in proving her reasonable and bonafide requirement in accordance with the provisions of Section 12(1)(c) of the Act and recorded concurrent findings of fact in this regard. 16. On the other hand, the witnesses examined on behalf of the defendants were not believed and they were found not to have been able to substantiate the defendants case and claim. 17. 16. On the other hand, the witnesses examined on behalf of the defendants were not believed and they were found not to have been able to substantiate the defendants case and claim. 17. In such circumstance, in dealing with this Second Appeal under Sec. 100 of the Code of Civil Procedure, I am unable to interfere with the aforesaid findings of fact and I do not find any infirmity therein. 18. During the pendency of this appeal, the defendants have pointed out certain subsequent events, whereupon it was submitted on their behalf that the requirement of the premises for Bishwanath Pabra, in course of time has come to an end and he was running Hotel business in some other premises belonging to him. This assertion of the appellant has been controverted by the respondent by saying that the said Hotel business was being looked after by his son Vinod Pabra, who was a handicapped person. 19. Here, there was no case that the plaintiff-respondent either lost his interest in the suit premises for any reason in course of the pendency of the litigation, rather to me it appear that the suit for eviction was filed in the year 1981, which was decreed in the year 1984 and even thereafter for more than twelve years the plaintiff-decree holder could not get possession of the suit premises. In the meantime, the original plaintiff died and her son for whose business the premises was required could not have been expected to be sitting idle and waiting indefinitely to get possession of the premises and only then to start his business therein. In such situation, if he took hotel business some where else, which was being looked after by his handicapped son, it cannot be said that the requirement of the premises vanished. 20. In the present case, since the plaintiff was able to prove need of the entire premises, the onus shifted on the defendant to show that the plaintiffs need could be substantially satisfied by evicting him from only part of the premises and allowing him to continue in occupation of the rest of it. No evidence adduced by the defendant on the point of partial eviction was brought to my notice and as such it cannot be said that smaller area would have been sufficient to the plaintiffs need. 21. No evidence adduced by the defendant on the point of partial eviction was brought to my notice and as such it cannot be said that smaller area would have been sufficient to the plaintiffs need. 21. I further find that the defendant was also bound by the compromise decree passed in Title Suit No. 129 of 1967, whereby he had undertaken to and was to vacate the suit premises by the end of May, 1980. 22. I, therefore, find no reason to interfere with the findings recorded by the two courts below on the plaintiffs requirement of the suit premises in accordance with the provisions of Sec. 12(1)(c) of the Act. This Appeal is, accordingly, dismissed with cost throughout.