Jugeshwar Prasad Sah v. Santosh Kumar Agrawal — 1998 DIGILAW 9 (PAT)

Judgment S.N.Jha, J. 1. This civil revision by the defendant under Sec. 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (in short, the Act) arises from an order of eviction. 2. The plaintiffs-opposite party filed Title (Eviction) Suit No. 19 of 1993 for eviction of the petitioner on the ground of personal necessity in terms of Sec. 11(1)(c) of the Act. According to them, they are the owners of the premises, described as wooden counter, which was let out to the petitioner, in the beginning at the rental of Rs. 75.00 per month which was subsequently raised to Rs. 165.00 and then Rs. 550.00 . The petitioner executed the memorandum of kirayanama and was regularly paying rent under proper receipt. Plaintiff No. 1s two sons, namely, Santosh Prasad Agrawal and Kaushal Kumar Agrawal (who were later added as plaintiffs) as well as plaintiff No. 2 Gandhi Pd. Agrawal were sitting idle. The plaintiffs therefore needed the premises reasonably and bona fide in order to start business of Manihari and General Stores for earning their livelihood. The plaintiffs demanded the defendant-petitioner to vacate the premises which he declined and hence the suit. 3. The petitioner filed affidavit seeking leave to contest the suit as required under Sec. 14(4) of the Act. He admitted that his father had taken the premises at a rental of Rs, 75.00 per month under a kirayanama. After expiry of the period of kirayanama the plaintiffs raised the rental and also started charging annual salami @ Rs. 1,200.00 . In October, 1992 they demanded Rs. 10,000.00 for personal need which the petitioner denied on the ground that excess amount had already been paid in the past as salami. He wanted the account to be settled. The plaintiffs however avoided the settlement of account. The petitioner denied that either the sons of plaintiff No. 1 or plaintiff No. 2 are unemployed and they require the premises bona fide for their own occupation. The petitioner took the stand that the suit has been filed because he had refused to agree to enhancement of rent. 4. It is not clear from the order whether the leave to contest the suit was granted by the Court. Counsel for the parties did not go into that question. The petitioner took the stand that the suit has been filed because he had refused to agree to enhancement of rent. 4. It is not clear from the order whether the leave to contest the suit was granted by the Court. Counsel for the parties did not go into that question. Be that as it may, it appears that on appearance of the petitioner, the plaintiffs filed an application seeking direction to him to deposit arrears of rent as well as current rent in terms of Sec. 15 of the Act whereupon, on 17.4.95 the Court directed the petitioner to deposit arrears of rent, within one month from the date of the order, from February, 1984 to up to date and to pay current rent @ Rs. 550.00 per month. It is an admitted position that the said order was not complied with as a result of which by order dated 20.7.95 the defence of the petitioner was struck off in terms of the provisions of Sec. 15 of the Act. 5. The plaintiffs examined three witnesses, namely, Gandhi Pd. Agrawal as P.W. 1, Brahmdeo Pd. Agrawal as P.W. 2 and Sanjay Kumar Agrawal as P.W. 3. While P.W. 2 proved certain documents as formal witness, P.Ws. 1 and 3 being the co-plaintiffs stated about their requirements of the premises. The Court below accepted the plaintiffs case that their need of the premises is reasonable and bona fide and accordingly decreed the suit. The Court also held that their need cannot be satisfied by part eviction. 6. Mr. Arbind Kumar, learned Counsel for the petitioner submitted that the subject-matter of tenancy being an open piece of land and not a building within the meaning of Bihar Buildings (Lease, Rent & Eviction) Control Act, there cannot be any relationship of landlord and tenant between the parties vis-a-vis the premises in question and therefore the suit under the said Act was not maintainable and the Court below committed error in decreeing the same. Counsel also submitted that the Court committed error in not giving opportunity to the petitioner to cross-examine the plaintiffs witnesses. He further assailed the finding on the point of partial eviction. 7. Counsel also submitted that the Court committed error in not giving opportunity to the petitioner to cross-examine the plaintiffs witnesses. He further assailed the finding on the point of partial eviction. 7. Sec. 2(b) of the Act defines the term building to mean: Any building, or hut or a part of the building or hut, let or to be let separately for residential or non-residential purposes, and includes- (i) the garden, ground and outhouses, if any, appurtenant to such building or hut or part of such building or hut; (ii) any furniture supplied by the landlord for use in such building or but or part of a building or hut. It. would thus appear that the definition of building in the Act is wide enough to include not only, what is understood in common parlance as building or house with pucca roof but also amongst others, a hut or part of the hut. garden, grounds and out-houses. But in the present case, it is not necessary to dwell upon the scope of the term. It is significant to mention that no case, as was argued before this Court to the effect that an open piece of land had been let out and it is the petitioner who constructed the wooden counter thereon, was pleaded in the aforementioned affidavit. As a matter of fact, in paragraph 2 of the affidavit the petitioner stated in no uncertain terms that a shop had been let out to his father. It is useful to quote paragraph-2 as follows: That on 20.8.77 the shop in question was taken by my father on rental of Rs. 75.00 from Sri Navnit Lal son of Late Bechan Lal resident of Mauza flaw for running the business of Manihari and since the day I am dealing with the premises in question. In the above view of the matter it is not possible to hold that an open piece of land was leased out to the petitioner and not premises described as wooden counter and therefore no landlord tenant relationship exists between the parties vis-a-vis the premises. Having regard to the definition of the term building there cannot be any doubt that the premises in question described as wooden counter or katra comes within the ambit of the term. Having regard to the definition of the term building there cannot be any doubt that the premises in question described as wooden counter or katra comes within the ambit of the term. 8 A significant feature of the present case, as noted above, is that the defence of the petitioner was struck off for non-compliance of the order under Sec. 15 of the Act. Sec. 15 entitles a landlord to apply at any stage of the suit for order on the tenant to deposit arrears of rent, subject to the law of limitation, if any, and current rent at the rate last paid, and provides that if the tenant fails to deposit arrears of rent or the currem rent within the stipulated period (after such order is passed), "the Court shall, order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall pot allow the tenant to cross-examine the landlords witnesses." This Court has interpreted the above provision to mean that in cases of non-compliance of the order under Sec. 15, it is the defence as to ejectment qua-tenant which is to be struck off. Where the tenant takes the plea of independent title in himself, such defence cannot be struck off because that is not defence qua-tenant. In the present case, it is rather an admitted position that the petitioner is in occupation of the premises as tenant. Irrespective of the controversy as to whether the petitioner had constructed tie wooden counter or not, it is admitted position that he has been paying rent to the plaintiffs for the premises, vide paragraph-2 of the affidavit quoted above. 9. In view of the admitted position that the defence of the petitioner stood struck off for non-compliance of the order under Sec. 15 of the Act. hardly anything remains to be considered en the point of his defence as to ejectment. The suit has been filed for eviction on the ground of personal necessity. The Court below has taken evidence and found that the plaintiffs requirement is bona fide and reasonable. I find no scope for interference with the finding. The Court below has also gone into the question of partial eviction and recorded a positive finding in favour of the plaintiffs. The Court below has taken evidence and found that the plaintiffs requirement is bona fide and reasonable. I find no scope for interference with the finding. The Court below has also gone into the question of partial eviction and recorded a positive finding in favour of the plaintiffs. The finding on the point of partial eviction is rather a finding of fact and there is no scope for interference with that finding either. 10. In the above premises, the order of eviction cannot be said to be erroneous in law. This civil revision must therefore, fail and the same is accordingly dismissed.