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2003 DIGILAW 931 (PAT)

Bhimsen Gupta v. Bishwanath Prasad Gupta

2003-09-01

S.K.KATRIAR

body2003
Judgment S.K.Katriar, J. 1. The defendant is the appellant against a judgment of reversal. This appeal is directed against the judgment and decree dated 16-8-2000, passed by the learned 7th Additional District Judge, Munger, in Munsif Eviction Appeal No. 3/2000/2/2000 (Bishwanath Prasad Gupta V/s. Bhimsen Gupta), whereby he has dcreed the suit for ejectment after setting aside the judgment and decree dated 29-3-2000, passed by the learned Munsif 2nd Court, Munger, in Eviction Suit No. 19/94 (Bishwanath Prasad Gupta V/s. Bhimsen Gupta). The suit for ejectment and consequential relief was dismissed by the trial Court and has been decreed by the learned Court of appeal below. We shall go by the description of the parties occurring in the plaint. 2. The plaintiff instituted the suit for ejectment of the defendant and recovery of possession on the grounds of default in payment of rent as well as personal necessity with respect to the plaintiffs khatal bearing holding No. 210(old), No. 332(new), situate in Mohalla Betwan Bazar, P.S. Kasim Bazar, District Munger. The defendant filed the written statement and contested the-suit. He admitted the relationship of landlord and tenant. However, according to their case, there was no default in payment of rent. Part of the period of alleged default fell beyond a period prior to three years of the date of institution of the suit, and other part of the alleged default fell during the pendency of the suit which was introduced by amendment of the plaint. Their further case was that the plaintiff does not need the suit property bona fide for their personal necessity. 3. On the basis of the pleadings of the parties, the trial Court framed the following issues for consideration:- - (i) Whether the suit is as framed is maintainable? (ii) Whether the plaintiff has got sufficient cause of action and right to sue ? (iii) Whether the relationship of landlord and the tenant exists between the plaintiff and the defendant ? (iv) Whether the defendant has defaulted in payment of rent ? (v) Whether the plaintiff has got bonafide personal necessity of the suit premises? (vi) Whether the suit premises is the most suitable place for kirana shop? (vii) Whether the plaintiff is entitled to get other relief or reliefs? 4. The parties led evidence in support of their respective cases. (iv) Whether the defendant has defaulted in payment of rent ? (v) Whether the plaintiff has got bonafide personal necessity of the suit premises? (vi) Whether the suit premises is the most suitable place for kirana shop? (vii) Whether the plaintiff is entitled to get other relief or reliefs? 4. The parties led evidence in support of their respective cases. The suit was dismissed, The plaintiff appealed which has been allowed by the impugned judgment, that if the trial Court has been set aside, and the suit has been decreed. The learned Court of appeal below has held that the defendant defaulted in payment of rent more than once. He has further held that the plaintiff bona fide needs the suit property on account of his personal necessity, namely, his unemployed son has to start a business. He has also held that the same is too small to allow a viable, partial eviction. He has, therefore, ordered for ejectment of the defendant. 5. While assailing the validity of the impugned judgment, learned counsel for the defendant (appellant) submits that the default in payment of rent for a period prior to three years for institution of the suit cannot be a ground for ejectment in terms of sec. 11 (1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act). He relies on the judgment of a learned Single Judge of this Court reported in 1985 PUR 923 (Nandgopal Prasad V/s. Most. Premlata Devi). He next submits that if the situation is viewed in the proper perspective, there would be no default during the pendency of the suit. He relies on the judgment of the Supreme Court reported in AIR 1989 SC 920 (Rasiklal V/s. Shah Gokuldas). He next submits that the tenants eviction on the ground of personal necessity should not be a ploy to evict the tenant. The plaintiff must establish that he genuinely needs it on account of personal necessity which, in his submission, has not been established in this case. 6. Learned counsel for the plaintiff (respondent) has supported the impugned judgment He submits that an eviction suit on the ground of default in payment of rent occurring three years prior to the date of institution of the suit is maintainable. 6. Learned counsel for the plaintiff (respondent) has supported the impugned judgment He submits that an eviction suit on the ground of default in payment of rent occurring three years prior to the date of institution of the suit is maintainable. He relies on the Division Bench judgment of this Court reported in 1991 (2) PLJR 373 (Balbir Dutta V/s. Ashish Kumar Mitra), which was followed by a learned Single Judge of this Court in his judgment reported in 1999(3) PLJR 596 (Ashok Kumar Banerjee V/s. Gopal Bhowmik), He next submits that in order to attract the provision of sec. 11(1)(d) of the Act, the default of two months need not be consecutive. He relies on the judgment of this Court reported in 1989 (2) BLJR 316 (Seyed Abdul Wahab V/s. Md. Sakman @ Lokman). He next submits that default during the pendency of the suit is a valid ground for eviction. The Court is entitled to take into account Pendente Lite developments and mould the relief accordingly. He relies on the judgment of a Division Bench of this Court reported in 2000(1) PLJR 975 (Balwant Singh V/s. Anand Kumar Sharma). He lastly submits that the learned Court of appeal below has fully considered the plaintiffs second ground of eviction, namely, personal necessity, and has arrived at a just and proper conclusion. 7. I have perused the impugned judgment and considered the submissions of learned Counsel for the parties. It appears to me on a perusal of the impugned judgment that the learned Court of appeal below has found that the defendant had defaulted in payment of rent for the months of February 1988 and December 1990. The suit was instituted on 5-9-94. The default was obviously for a period perior to the period of three years. The question for consideration, therefore, is whether or not the same constitutes default within the meaning of Section 11(1)(d) of the Act. The suit was instituted on 5-9-94. The default was obviously for a period perior to the period of three years. The question for consideration, therefore, is whether or not the same constitutes default within the meaning of Section 11(1)(d) of the Act. This issue fell for the consideration of a Division Bench of this Court in the case of Balbir Dutta V/s. Ashish Kumar Mitra (supra), and the following substantial question of law was considered: "Whether a landlord can file a suit for eviction of the tenant from a building on the ground of default in payment of rent by the latter to the former for the period which was more than three years prior to the institution of the suit." After an exhaustive discussion, the Division Bench came to the conclusion that the rental for a period of three years prior to the institution of the suit bars the remedy and not the debt. The money part may become time-barred, not the ground of default which comes in the wake of it. It was held that the law of limitation might have barred the remedy of the plaintiff to recover the rent for the period beyond three years prior to institution of the suit, but that cannot be a ground of defeating their claim for decree for eviction. The question was thus answered in favour of the plaintiff-landlord and the tenants appeal was dismissed. The same was followed by a learned Single Judge of this Court in the case of A.K. Banerjee V/s. Gopal Bhowmik (supra). I must consider the judgment of the learned Single Judge of this Court in the case of Nand Gopal Prasad V/s. Premlata Dew (supra), relied on by learned counsel for the defendant (appellant). The judgment obviously does not help the defendant in view of the observations made therein that "I have no hesitation in holding that any default that may be taken notice of for a suit for eviction for the purpose of evicting a tenant u/s. 11(1)(d) of the Act must be a default prior to the institution of the suit. The judgment obviously does not help the defendant in view of the observations made therein that "I have no hesitation in holding that any default that may be taken notice of for a suit for eviction for the purpose of evicting a tenant u/s. 11(1)(d) of the Act must be a default prior to the institution of the suit. I, however, do not decide as to what shall be the period of limitation because the appellants default is found within three years." However, if the judgment at all supports the defendant, the same will be deemed to have been overruled by the Division Bench of this Court in BalbirDutta v. Ashish Kumar Mitra (supra). 8. Learned counsel for the plaintiff (respondent) has rightly relied on the judgment of this Court in the case of Sayeed Abdul Wahab V/s. Md. Sakman (supra), wherein it has been held that the default in payment of rent for the two months need not be consecutive. Paragraphs-14 and 15 of the judgment are relevant in the present context and are set out hereinbelow for the facility of quick reference:- - "14. It has been held by this Court on a number of occasions that for the purpose of coming to the finding that a tenant has become a defaulter in respect of two months rent lawfully payable by him, it is not necessary that the tenant would default in payment of rent of two consecutive months. Reference in this connection may be made in Raj Kumar Prasad V/s. Uchit Narain Singh, reported in AIR 1980 Patna 242, 1980 PLJR 195(FB) Tip Top V/s. Indramani reported in 1982 BBCJ 433 , and Sadanand Das V/s. Md. Hussain and Anr. reported in 1986 PLJR (SC) 46. "15. In view of the fact that the defendant admittedly did not tender the monthly rent within the prescribed time as contemplated u/s. 12(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977, for the months of July, September and November, 1977, in my opinion, it has to be held that the defendant appellant was a defaulter." 9. "15. In view of the fact that the defendant admittedly did not tender the monthly rent within the prescribed time as contemplated u/s. 12(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977, for the months of July, September and November, 1977, in my opinion, it has to be held that the defendant appellant was a defaulter." 9. I am thus of the view that the learned Court of appeal below has rightly concluded that the plaintiff is entitled to a decree of eviction on the ground of default in payment of rent for the months of February 1988 and December, 1990, even though the same falls beyond the period of three years prior to the date of institution of the suit, and are not consecutive. 10. The learned Court of appeal below has found that the defendant has also committed default in payment of rent during the period January 1991 to April 1991. This default occurred during the pendency of the suit. The question, therefore, for consideration is whether or not non-payment of the rent during the pendency of the suit is within the mischief of sec. 11(1)(d) of the Act. This issue fell for the consideration of a Division Bench of this Court in the case of Balwant Singh V/s. Anand Kumar Sharma (supra), wherein the question was answered in favour of the landlord-plaintiff and it was in substance held that the default in payment of rent during the pendency of the suit pursuant to an order in terms of sec. 15 of the Actor not makes no difference, and in either event is within the mischief of sec. 11(1)(d) of the Act. The following portion of the judgment is relevant in the present context and is set out hereinbelow for the facility of easy reference:- - "9. .............. ........... ............. ..... While considering the status of a tenant in occupation of a building after incurring forfeiture as a statutory tenant, it may be relevant to point out that it is for this reason, and in recognition of his status as statutory tenant, that even during the pendency of the suit the landlord is entitled to ask the Court to direct such tenant to pay rent - arrears and/or current - with respect to premises in terms of sec. 15 of the Act. "10. 15 of the Act. "10. Shri Roy did not make any argument to the contrary that a defaulter tenant continues to be statutory tenant. He, however, contended that where the Court passes on order directing the tenant to pay rent u/s. 15 of the Act, the case would stand on a different footing than where the tenant pays rent and the same is accepted by the landlord on his own. In our opinion, there is no warrant for this distinction. According to us, after incurring the liability for being evicted on the ground of default, the tenant does not get any immunity from payment of rent whether he pays rent pursuant to any order of the Court or he does so on his own is of no consequence. Therefore, if the tenant is liable to pay rent and such rent is accepted by the landlord it cannot be said that he has waived his right to seek eviction of the tenant." 11. Learned counsel for the plaintiff has rightly submitted that the provision for payment of rent during the pendency of the suit u/s. 15 of the Act is a protection to the landlord to ensure that he continues to get rent during the pendency of the suit because the tenant during this period becomes statutory tenant and, therefore, he should not continue to be in occupation of the premises without payment of rent, and has nothing to do with the grounds of eviction. In that view of the matter, the judgment of the Supreme Court in Rasiklal V/s. Shah Gokuldas (supra), inapplicable to the facts and circumstances of the present case which was rendered in an entirely different factual matrix and mainly related to interpretation of the words "habitually in arrears with the rent" occurring in C.P. and Bihar Letting of Houses and Rent Control Order (1949). 12. The learned Court of appeal below has, therefore, rightly concluded that the defendant is liable to eviction on the ground of default in payment of rent for the period January 1991 to April 1991. 13. In so far as ejectment on the ground of personal necessity is concerned, the issue has been discussed by the learned Court of appeal below. It has held that Krishna Kumar Gupta, the plaintiffs son, is unemployed and the shop in question is required for his settlement, and suitable for opening a Kirana shop. 13. In so far as ejectment on the ground of personal necessity is concerned, the issue has been discussed by the learned Court of appeal below. It has held that Krishna Kumar Gupta, the plaintiffs son, is unemployed and the shop in question is required for his settlement, and suitable for opening a Kirana shop. It is situate in a market area. His requirement shall not be fulfilled by partial eviction because the premises is quite small. The question of partial eviction, therefore, does not arise. The learned lower appellate Court has also considered another khatal owned by the plaintiff which in fact is not available because the plaintiff has installed a generator set therein. I am convinced that the learned Court of appeal below has properly discussed this issue and reached an appropriate conclusion in the facts and circumstances of the case. The plaintiff needs the suit property bonafide for personal necessity. 14. It appears to me that the issues are concluded by finding of facts which bind this Court in second appellate jurisdiction. The issue whether or not the defendant has defaulted in payment rent, and whether or not the plaintiff needs the suit premises on the ground of personal necessity, are basically issues of facts. No substantial question of law seems to arise in this appeal for the consideration of this Court. Questions of law have been canvassed on behalf of the defendant (appellant) which are settled by decided cases of Courts and are not even remotely substantial question of law. The Supreme Court has laid down in its judgment reported in AIR 2001 SC 965 (Santosha Hazari V/s. Purushottam Tiwari) as to what constitutes a substantial question of law in second appellate jurisdiction. Paragraph 14 of the judgment is set out hereinbelow for the facility of quick reference:- - "A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial a question of law must be debatable, nor previously settled by law of the land or a binding precedent, and must have an material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be substantial a question of law must be debatable, nor previously settled by law of the land or a binding precedent, and must have an material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." I had the occasion to follow and apply the same in my judgment since reported in (2003) (2) BUR 1260 (Sheo Chand Chaudhary alias Sheochan Choudhary V/s. Adalat Hussain and Ors.). 15 In the result, this appeal is dismissed with costs throughout. The defendant is hereby directed to hand over vacant possession of the suit premises to the plaintiff within a period of two months from today failing which the plaintiff shall be entitled to vacant possession through the process of Court.