Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 156 (PAT)

Santosh Kumar And Others v. Jugal Kishore Barnwal

2002-02-05

S.K.KATRIAR

body2002
Judgment S.K.Katriar, J. 1. The defendants are the petitioners in an eviction suit. This civil revision application u/s. 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the Act), is directed against the judgment dated 5-6-2000, passed by the learned Munsif, East Muzaffarpur, in Eviction Suit No. 15 of 1996 Jugal Kishore Barnwal V/s. Santosh Kumar and Ors., whereby the plaintiffs suit for eviction of the defendants from the suit premises on the ground of personal necessity in terms of sec. 11(1)(c) of the Act has been decreed on contest with costs and the defendants have been directed to vacate the suit premises within a period of three months. 2. We shall go by the description of the parties before the trial Court. The plaintiff instituted the suit for eviction of the defendants from the suit premises on the ground that the plaintiffs eldest son (Navin Chandra PW6) is unemployed, and the suit premises is needed to set up a business for grocery and herbal items/products and to settle him in life. It appears from the pleadings of the parties that the suit premises is a single room/shop covering 11 x35 on the ground floor in the township of Muzaffarpur which was let out to the original defendant (Lal Babu Sah) who has been running a shop in grocery items. The original defendant died during the pendency of the suit and was substituted by his heirs as defendants who are petitioners before me. The plaintiffs case is that he is himself engaged in the business of grocery items and herbal items/products in a rented premises in the township of Muzaffarpur. He has five sons and two daughters. Navin Chandra is his eldest son who could not get a job for himself, is unemployed, and is in urgent need of the suit premises to start business. The plaintiff has, therefore, decided to start a business for his eldest son in grocery items and herbal items/products in the suit premises. On the other hand, the defendants case is that the plaintiff is the owner of a double-storeyed house and the defendants are in possession of only one room on the ground floor. The defendants further case is that the plaintiff does not need the suit premises reasonably and in good faith, and is only a device to evict the defendants. On the other hand, the defendants case is that the plaintiff is the owner of a double-storeyed house and the defendants are in possession of only one room on the ground floor. The defendants further case is that the plaintiff does not need the suit premises reasonably and in good faith, and is only a device to evict the defendants. Further more, the dispute arose because the plaintiffs demanded a big sum of pagri and enhancement of rent which the defendants could not afford and the suit premises does not justify the same. Lastly, the defendants case in the alternative is that partial eviction may be ordered. The parties led evidence in support of their respective cases. The trial Court on a consideration of the materials before him has come to the conclusion that the plaintiffs eldest son (Navin Chandra) is sitting idle since 1996 and, therefore, the plaintiff reasonably and in good faith requires the suit premises to settle his son. Navin Chandra has the requisite experience of the business in grocery and herbal items and has also the requisite capital for the same. He has lastly found that partial eviction will not serve the plaintiffs need. In view of the these findings, he has decreed the suit and ordered for eviction of the defendants within a period of three months time. 3. While assailing the validity of the impugned judgment, learned Counsel for the defendants (petitioners) had made only one submission, namely, the same falls far short of the requirement of the proviso to Art. 11(1)(c) of the Act. In other words, the trial Court has failed to discuss properly and in accordance with law whether or not the offer of partial eviction made by the defendants fulfils the personal need of the plaintiff substantially. In his submission, the discussion is unsatisfactory and has been concluded by a cryptic conclusion of the trial Court which is tantamount to his Ipse dixit rather than a well-discussed finding supported by adequate materials on record. He has relied on the following reported judgments: (i) -, NasirulHaque V/s. Jitendra Nath Dey. (ii) -, Krishna Murari Prasad V/s. Mitar Singh. (iii) 1991 (2) PLJR 224, Jai Prakash Jalan V/s. Rambilash Madan Gopal. (iv) 1992 (2) BLJ 700 , Rajan Sahay V/s. United Exhibitors. (3.1) Learned Counsel for the defendants has not assailed the rest of the judgment of the trial Court. 4. (ii) -, Krishna Murari Prasad V/s. Mitar Singh. (iii) 1991 (2) PLJR 224, Jai Prakash Jalan V/s. Rambilash Madan Gopal. (iv) 1992 (2) BLJ 700 , Rajan Sahay V/s. United Exhibitors. (3.1) Learned Counsel for the defendants has not assailed the rest of the judgment of the trial Court. 4. Learned Counsel for the plaintiff (opposite party) submits in support of the impugned judgment that partial eviction in the facts and circumstances of the present case will not serve his purpose. Law is well settled that Courts are required to examine whether or not issue of partial eviction, if allowed, will first meet :he need of the plaintiff substantially, may not be fully. He further submits that the trial Court has discussed the entire matter in a satisfactory manner and has come to a definite finding that partial eviction of the defendants will not in the facts and circumstances of the case meet the needs of the plaintiff substantially. Relying on the judgment of this Court reported in 1989 PLJR 1180, Daujee Agarwal V/s. Kanhaiya Lal Sarwagi, he submits that partial eviction based on evidence should not be interfered with by the High Court in civil revisional jurisdiction. He further submits that the civil revisional jurisdiction of the High Court in terms of sec. 14(3) of the Act is not co-extensive with the last Court of facts. He relies on the judgment of the Supreme Court reported in -, Vaneet Jain V/s. Jagjit Singh. 5. I must at the outset clarify that the defendants have not before me assailed the findings of the trial Court on the question of bona fide personal requirement of the plaintiff. Accordingly, the plaintiff has proceeded before me on the footing, that the same has been accepted as final by the defendants. I, therefore, uphold the findings of the trial Court to the effect that the plaintiff needs the suit premises reasonably and in good faith for personal necessity. 6. This takes me on to the only question raised by the parties before me. I must above all remind myself of the parameters of the jurisdiction of this Court in terms of sec. 14(8) of the Act to revise a judgment of the trial Court for eviction on the ground of personal necessity in terms of sec. 11(1)(c) of the Act. sec. I must above all remind myself of the parameters of the jurisdiction of this Court in terms of sec. 14(8) of the Act to revise a judgment of the trial Court for eviction on the ground of personal necessity in terms of sec. 11(1)(c) of the Act. sec. 14 of the Act, conferring revisional jurisdiction on this Court in such cases, to the extent relevant in the present context, is set out hereinbelow for the facility of quick reference: 14. Special procedure for disposal of cases for eviction on ground of bona fide requirement.-- (1) Every suit by a landlord for the recovery of possession of any premises on the ground specified in Clause (c) or (e) of Sub-sec. (1) of sec. 11 shall be dealt with in accordance with the procedure specified in this section. ... ... ... (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with the procedure specified in this section: Provided that on an application being made within sixty days of the date of the order or eviction, the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. 7. The revisional power of the High Court with regard to summary procedure for eviction on the ground of personal necessity under the Bihar Act and the provisions which are in pari materia in similar statutes of other States have been the subject-matter of discussion of a large number of judgments of the Supreme Court. Learned Counsel for the plaintiff has rightly brought to my notice the judgment of the Supreme Court in the case of Vaneet Jain V/s. Jagjit Singh (supra), which is a case under the Haryana Urban (Control of Rent & Eviction) Act, 1973. sec. 15(6) of the Haryana Act is set out hereinbelow: 15(6). Learned Counsel for the plaintiff has rightly brought to my notice the judgment of the Supreme Court in the case of Vaneet Jain V/s. Jagjit Singh (supra), which is a case under the Haryana Urban (Control of Rent & Eviction) Act, 1973. sec. 15(6) of the Haryana Act is set out hereinbelow: 15(6). The High Court, as revisional authority, may, at any time, on its own motion or on the application of any aggrieved party, made within a period of ninety days, call for and examine the record relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. In computing the period of ninety days the time taken to obtain a certified copy of the order shall be excluded. Speaking of the scope and extent of the powers of the High Court under the Haryana Act, the Supreme Court has illumined the position as follows in paragraphs 4 and 5 of the judgment: 4. Sub-sec. (6) of sec. 15 of he Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or res-evaluated the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta V/s. Dr. Mahesh Chand Gupta, held that the High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sar/a Ahuja V/s. United India Insurance Co. Ltd.. It was held that High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact-finding Court is wholly unreasonable. 5. A persual of Sub-sec. In Sar/a Ahuja V/s. United India Insurance Co. Ltd.. It was held that High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact-finding Court is wholly unreasonable. 5. A persual of Sub-sec. (6) of sec. 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable u/s. 115 of the Code of Civil Procedure. It is no doubt true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. We are, therefore, or the view that it is not permissible of the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the Court below. Keeping in view the scope of the revisional power under Sub-sec. (6) of sec. 15 of the Act, in present case, we find that the case of the appellant was that the he was unemployed.. He was neither in service nor has any business and, therefore, he bona fide required the premises for carrying on business. The High Court merely on the fact that the appellant was enrolled in the employment exchange at Orissa, concluded that the need of the landlord was not bona fide. Thus, it recorded the finding that the appellant does not intend to carry on business in the premises and his need is not bona fide. From the fact that the appellant was enrolled in the employment exchange at Orissa, the Rent Controller and the appellate authority concluded that the appellant is unemployed and is seeking his employment by running a business in the premises in dispute. Such a conclusion by the Court below cannot be said as wholly unreasonable. It is not the case of the respondent that as a resuIt of the appellant being on the roll of the employment exchange he has got appointment in any service. The High Court did not find that such a conclusion arrived at by the High Court after reassessment of the evidence was not permissible under law. Consequently, the judgment under appear deserves to be set aside. We order accordingly. The High Court did not find that such a conclusion arrived at by the High Court after reassessment of the evidence was not permissible under law. Consequently, the judgment under appear deserves to be set aside. We order accordingly. The appeal is allowed. No costs." 8. It is thus manifest from the authoritative pronouncement of the Supreme Court that the power of the High Court to revise an order is not an appellate power as a Court of facts, but it is equally true that it is not akin to the power exercisab|e u/s. 115 of the Code of Civil Procedure. The High Court would, therefore, be justified in interfering with the order passed by the impugned judgment if the illegality or propriety of such order demands interference. It is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the Court below. However, the High Court is obliged to test the order of the trial Court on the touch-stone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. Therefore, the High Court will exercise the jurisdiction and reappraise the evidence only for a limited purpose of ascertaining as to whether the conclusion arrived at by the fact finding Court is wholly unreasonable. 9. I must also bear in mind the ratio of the judgments relied on by the learned Counsel for the plaintiff. The Supreme Court has held in Narirul Haque V/s. Jitendra Nath Dey (Supra) that the Court has to determine the extent of the premises which the landlord "reasonably" requires which has to be determined objectively and not on the basis of his Ipse dixit or his mere desire to occupy as much as he wants. The Court has to consider further whether such requirement as the Court considers reasonable, will be substantially satisfied (not fully satisfied) by ordering partial eviction. The Supreme Court has held in Krishna Murari Prasad V/s. Mltar Singh (supra) that drawing presumption against the tenant merely because the suit premises consisting one room overlooking the factor of dimension of the room is an inappropriate approach. Both the judgments of the Supreme Court related to the Bihar Act. 10. The Supreme Court has held in Krishna Murari Prasad V/s. Mltar Singh (supra) that drawing presumption against the tenant merely because the suit premises consisting one room overlooking the factor of dimension of the room is an inappropriate approach. Both the judgments of the Supreme Court related to the Bihar Act. 10. Accordingly, the learned Counsel for the parties have taken me through the evidence to satisfy this Court that the impugned judgment is in accordance with law. I have reappraised the evidence for the limited purpose of ascertaining as to whether the conclusion arrived at by the trial Court is a possible and reasonable view. It is manifest from the evidence on record that the plaintiff is doing his own business in a rented premises elsewhere in the twonship. It is equally clear from the evidence on record that the plaintiff has five sons and two daughters, Navin Chandra being the eldest. This shows the enormous load on the shoulders of the plaintiff to manage the affairs of the family. It is equally manifest that the plaintiff being the eldest son has not so far settled and, therefore, he is in urgent need of the suit premises, let alone the needs of the remaining four sons who are yet to settle although not directly relevant in the present context. Navin Chandra has decided to pursue a known avocation and the requisite funds and help is available. It appears that the suit premises covers an area of 11 x 35, and the defendants before me have offered that they would be satisfied if a portion of 4 x 15 in the front should be given to them and the balance portion would meet the substantial requirement of the plaintiff. I have thoughtfully examined the elaborate submissions of the learned Counsel for the parties before me and the materials on record, and I am of the view that the balance portion will not meet the requirements of the plaintiffs substantially. Even it is taken that the frontage of the suit premises is 11 feet wide, 7 feet, wide shop for retail business of the items will not substantially meet the requirement of the plaintiff. Division of a width of 11 feet into two portions for retail business does not in my estimation appear to be adequate for the plaintiff. Even it is taken that the frontage of the suit premises is 11 feet wide, 7 feet, wide shop for retail business of the items will not substantially meet the requirement of the plaintiff. Division of a width of 11 feet into two portions for retail business does not in my estimation appear to be adequate for the plaintiff. Further more, he will also have to contribute for the wall to be set up for partition of the suit premises, and both sides would be doing business side by side in same or similar items with so much of mutual bitterness. All this combined together makes it an impractical solution. Learned Counsel for the plaintiff has rightly relied on the judgment of this Court in the case of Daujee Agrawal V/s. Kanhaiya Lal Sarwagi, 1989 PLJR 1180 (supra), that the order of eviction on the ground of personal necessity based on evidence should not be interfered with. I feel satisfied that the trial Court has considered the relevant aspects of the matter and has rightly reached the conclusion that the claim of partial eviction set up by the defendants before the trial Court at before me cannot substantially meet the bona ride requirements of the plaintiff. 11. In the result, this civil revision application is dismissed.