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2006 DIGILAW 329 (JHR)

Chhajuram Agrawalla v. Rameshwar Shaw

2006-04-05

N.N.TIWARI

body2006
ORDER N.N. Tiwari, J. 1. This civil revision has been preferred by the tenant-defendant under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 [hereinafter referred to as the B.B.C. Act] against the judgment and decree dated 18.2.2005 passed by the Munsif-I, Dhanbad in Title Eviction Suit No. 8/2001. The plaintiffs-landlord filed suit for eviction of the tenant-defendant on the ground of personal necessity under Section 11(1)(c) read with Section 14 of the B.B.C. Act. The plaintiffs case is that the defendant is tenant in the suit premises, which consists of three interconnected rooms on the first floor and one room, one verandah, one bathroom and a common latrine on the ground floor on monthly rent of Rs. 250 per month payable according to the English calendar month. The family of the plaintiff No. 1 has now become large consisting of his wife, two sons, their wives and five grandsons and for the eleven members family, accommodation in their possession consisting of three rooms and one kitchen on the ground floor of the suit premises is not sufficient and he requires the ground floor suit premises which is on the ground floor of the building to meet the need of his family and in order to provide study-room, guest-room, a separate bath-room (which is to be constructed) etc. The family of the plaintiff No. 2 also is large and which includes his old mother, wife, two daughters aged 12 years and 6 years respectively, a son aged five years and one brother. He has only one room and a verandah in his possession on the first floor of the suit premises, which is insufficient accommodation for his family. It has been further stated that the marriage of the brother of the plaintiff No. 2 is being delayed for want of accommodation for the married couple. One room is also required for the study of the children and he has to also construct a separate bathroom. In order to meet their aforementioned requirements, the plaintiffs requested the defendant to vacate the suit premises and on his failure to vacate the same the suit was filed. 2. The defendant appeared and prayed for time to file his written statement, but he did not seek leave to contest the suit as required under the provisions of Section 14(4) of the said act. 2. The defendant appeared and prayed for time to file his written statement, but he did not seek leave to contest the suit as required under the provisions of Section 14(4) of the said act. Ultimately the defendant was debarred from filing his written statement. 3. The suit was heard, the plaintiffs adduced their evidences. The defendant neither filed his written statement nor produced any witness. After discussing and appraising the evidences adduced on behalf of the plaintiffs, both oral and documentary, learned Court below held that the plaintiffs have been able to prove their personal necessity. The Court below thus decreed the suit directing the defendant to vacate the suit premises. 4. In this revision application, the impugned judgment and decree has been assailed by the petitioner on the only ground that while deciding the suit on the ground of personal necessity, learned Court below has not considered the desirability of partial eviction of the tenant by which the landlords requirement might have been substantially satisfied by evicting the tenant from a part only of the building and the tenant could have been allowed to continue his occupation over the part of the premises. Learned Counsel submitted that even if the said issue is not raised by the tenant, it is incumbent on the Court to decide the question of partial eviction as required by the mandatory provision as contained in the proviso to Section 1 l(l)(c) of the B.B.C. Act and having not done so learned Trial Court has committed an error in not properly exercising his jurisdiction. The impugned judgment and decree is thus unsustainable in law and is liable to be set aside. 5. Learned Counsel appearing for the opposite parties, on the other hand, contested the revision application and submitted that though there is no specific finding of the Court below on the said issue of partial eviction, yet the Court below has discussed and considered the evidence of P.W. 1 who has stated that partial eviction shall not fulfil the need of the plaintiffs and there being no contrary evidence on record, nothing remained to be considered and decided by the trial Court and the impugned judgment and decree is legal and sound. 6. Having heard the parties and perused the impugned judgment and decree of the learned Court below. 6. Having heard the parties and perused the impugned judgment and decree of the learned Court below. I find that the Court below has discussed the evidence and has come to the finding that the plaintiffs have proved the case of their personal necessity and the Court below has decreed the suit on the ground of personal necessity directing the tenant-petitioner to vacate the suit premises, but learned Court below has not framed any issue and has not recorded any finding as to whether the landlord-plaintiffs requirements may be substantially satisfied by evicting the tenant from a part of the building, whether the tenant can be allowed to continue occupation of the rest of the premises and whether the tenant agrees to such occupation, which is a mandatory requirement of law as envisaged in, the proviso to Section 11(1)(c) of the B.B.C. Act. The Court below has to record a finding as to whether a decree for partial eviction will satisfy the requirements of the landlord and irrespective of any pleading to that regard. The question of partial eviction has to be considered in terms of the proviso to Section 11(1)(c) of the B.B.C. Act even if the Court is not invited to do so by the parties. In absence of any such finding, the decree for eviction on the ground of personal necessity becomes bad in law. Since the learned Court below has passed the impugned judgment and decree of eviction against the petitioner on the ground of personal necessity without considering and deciding the said questions, the impugned judgment and decree is unsustainable in law and the same is hereby set aside. The case is remitted to learned Trial Court for fresh decision and finding on partial eviction. The Court below shall consider as to whether the reasonable requirement of the landlord can be substantially satisfied by evicting the tenant-defendant only from a part of the building and whether the tenant can be allowed to continue occupation of the part thereof and whether the tenant agrees to such partial occupation. It is made clear that the case is being remanded only due to absence of the said consideration and finding as required by the proviso to Section 11(1)(c) of the B.B.C. Act. It is made clear that the case is being remanded only due to absence of the said consideration and finding as required by the proviso to Section 11(1)(c) of the B.B.C. Act. The defend anti-petitioner has not challenged the finding of the impugned judgment and decree on the point of personal need of the plain tiffs, which has been held to be proved by learned Trial Court. The said finding has become final and binding on the defendant petitioner and the same remains undisturbed and conclusive. 7. For the reasons aforesaid, the impugned judgment and decree of learned Court below is set aside and the case is remanded to learned Trial Court for his decision on the point of partial eviction in accordance with law. The parties will appear before the Court below on 6.7.2006 and on that date the Court below shall fix a date for hearing of the suit on the said points in presence of both the parties. Learned Court below shall finally dispose of the suit within a period of one month thereafter. 8. However, in the circumstances of the case, there is no order as to costs. 9. Let this order be communicated to the Court below.