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2006 DIGILAW 810 (PAT)

Jyoti Prasad Verma v. Basanti Devi

2006-09-07

SYED MD.MAHFOOZ ALAM

body2006
Judgment SYED M.D.MAHFOOZ ALAM, J. 1. This Second Appeal has been preferred against the judgment and decree dated 14.12.87 passed by Sri B.N.P. Singh, 3rd Additional District Judge, Nawadah, in Title Appeal No. 5/83/71/87 confirming the judgment and decree dated 5.3.83 passed by Sri Dharnidhar Das Guru, Munsif, Nawadah, in Title Suit No. 24 of 1979 and decreed the suit of the plaintiffs for eviction of the defendant from the suit premises. 2. The case of the plaintiff, in short, is that the defendant is the tenant of the pucca Room and the Verandah bearing Holding No. 41/A Ward No.7 of the Nawadah Municipality on monthly rental of Rs. 35/- only. It is stated that the defendant paid rent till December, 1976 for which sada rent receipts were granted by plaintiff no. 1. The defendant did not pay rent from January, 1977 to April, 1979 in spite of several demands as such he committed default. It is further stated that the suit premises is reasonably and in good faith required by the plaintiffs for engaging plaintiff no. 2 in business who is sitting idle. Notice was served upon the defendant but the defendant did not listen to and hence the necessity of filing the suit arose. 3. The case of the defendant is that the defendant paid the rent till September,1978 but no rent receipt was granted by the plaintiff no. 1. In 1978, on the occasion of Deepawali the defendant requested the plaintiff to make some more repair but the plaintiff did not do so and started creating trouble for the sole purpose of enhancing the rent. The rent for September, 1978 was paid on 5.10.78 but the plaintiff refused to grant receipt. The defendant thereafter remitted the rent by Money Order regularly and so the defendant has not committed any default. It is, further stated that the plaintiffs have other shop rooms in the house in her occupation and so the case of bona fide requirement of the suit premises is false and concocted. It has further been stated that the plaintiffs are not entitled to any relief and the suit is liable to be dismissed. 4. It is, further stated that the plaintiffs have other shop rooms in the house in her occupation and so the case of bona fide requirement of the suit premises is false and concocted. It has further been stated that the plaintiffs are not entitled to any relief and the suit is liable to be dismissed. 4. From the perusal of the judgment of the trial court, it appears that on the basis of the pleadings of the parties altogether seven issues were framed by the trial court for consideration which are as follows: I. Whether the suit as framed is maintainable? II. Whether the plaintiffs have got legal cause of action for the suit? III. Whether the defendant did not pay rent of the suit premises from January, 77 to April, 79? IV. Whether the suit premises is reasonably and in good faith required by the plaintiff for accommodating plaintiff no. 2 in business? V. Whether the plaintiffs are entitled to a decree for eviction of defendant from the suit premises? VI. Whether the plaintiffs are entitled to a decree for arrear of rent amounting to Rs. 980/-? VII. To what relief or reliefs, if any, are the plaintiffs entitled. 5. It transpires that Issue Nos.lll and IV were considered by the trial court as main issues in the suit and both the issues were decided in favour of the plaintiffs and on that basis the trial court decreed the suit of the plaintiffs for eviction of defendant from the suit premises and also decreed the suit for arrear of rent. 6. Against the said judgment and decree the defendant-appellant preferred appeal bearing Title Appeal No.5/83/71/83 which was disposed of on 14.12.83 whereby the learned 3rd Additional District Judge, Nawadah, dismissed the appeal of the defendant-appellant and confirmed the findings of the trial court on the point of default as well as of personal necessity. 7. Against the said judgment and decree of the first appella court, this Second Appeal has been preferred. 8. From the perusal of the record of this Second Appeal, it appears that on 9.5.88 at the time of admission of this appeal only two substantial questions of law were formulated for determination which are as follows: (I) Whether the finding regarding default is erroneous in law? 8. From the perusal of the record of this Second Appeal, it appears that on 9.5.88 at the time of admission of this appeal only two substantial questions of law were formulated for determination which are as follows: (I) Whether the finding regarding default is erroneous in law? (II) Whether the finding regarding personal necessity is erroneous in law and whether a decree for eviction on that ground can be granted without appreciating the question of partial eviction? 9. During the course of hearing of this appeal, learned Advocate of the appellant vehemently argued that the finding of the courts below on both the issues are erroneous in law and the trial court as well as the first appellate court have not properly appreciated the evidence adduced on behalf of the defendant in this regard. However, it has been admitted by the learned Advocate of the appellant that it is a case of concurrent finding and unless it is shown that the findings of both the courts below are perverse due to non-consideration and improper appreciation of the evidence available on record, this court is not empowered to interfere with the concurrent findings. During the course of argument the learned Advocate of the appellant could not be able to satisfy me that the findings of the courts below on both the issues are perverse. Therefore, the only legal issue which remains to be considered in this case is the non-consideration of the plea of the defendant of partial eviction by the courts below. 10. It has been contended by the learned Advocate of the appellant that both the courts below have failed to consider this vital question of law in their judgments. According to the appellant, Sec. 11 (1)(c) proviso of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter to be referred as B.B.C. Act) provides that where the court is of the opinion that the reasonable requirement of the occupation of the landlord on the ground of personal necessity may be substantially satisfied by evicting the tenant from a particular area of the building and allowing the tenant to continue the occupation of the rest portion of the suit premises and if the tenant agress to such occupation the court must pass a decree of partial eviction fixing proportionally fair rate of rent. But when the attention of the learned Advocate of the appellant was drawn towards this fact that this suit is of composite nature and proviso of Section 11(1)(c) of the B.B.C. Act will not apply in this case,he fairly conceded that since the decree has been passed on both the grounds i.e. on the ground of default as well as on personal necessity the proviso of Sec. 11 (1 )(c) of the B.B.C. Act will not apply. In this regard, I would like to refer my own unreported judgment in the case of M / s. Ganesh Company Vs. Jagarnath Prasad Chaudhary (Second Appeal No. 193 of 1990) decided on 20th October,2005. At para 15 of the said judgement while dismissing the appeal of the tenant, I had observed as follows: "15. I am also of the view that the plea of partial eviction as provided under the proviso of Sec. 11(1 )(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, is available in cases where the suit is based on the sole ground of personal necessity but where the suit has been filed on composite ground of personal necessity as well as on the ground of default and the same is decreed on both the counts, the plea of partial eviction as provided under Section 11 (1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act is not available to the defendants-appellants. 11. Since this case is of similar nature and the plaintiffs suit for eviction was decreed on both the grounds, as such, I hold that the proviso of Sec. 11(1)(c) of the B.B.C. Act will not apply in this case. Accordingly, both the substantial question of law is answered against the appellants. 12. Before concluding my judgment, I would like to say that this is the suit of the year 1979 meaning thereby that the suit was filed about 27 years ago. According to the plaint, at the relevant time the rent of the said house was only Rs. 35/- per month. 12. Before concluding my judgment, I would like to say that this is the suit of the year 1979 meaning thereby that the suit was filed about 27 years ago. According to the plaint, at the relevant time the rent of the said house was only Rs. 35/- per month. After a lapse of about 27 years the market rate has now enhanced more than fifty times and therefore, I am of the view that if any tenant takes plea of partial eviction then in that case he must come before the court with clean hand and must say that he is ready to pay the rent at the prevalent market rate.failing which his plea for partial eviction should not be considered. 13. In the result, I do not find any merit in this appeal. Accordingly, the same is hereby dismissed and the judgment and decree of both the courts below are hereby confirmed.The appellants are ordered to vacate the suit premises at once, failing which the plaintiffs-respondents will be entitled to get the suit premises vacated through the process of law.