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2007 DIGILAW 1328 (PAT)

Shobha Lal Modi v. Charu Lata Patel

2007-08-10

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The civil revision application has been filed against the order dated 19.4.2006 passed by Sri Md. Ajazuddin, Munsif, Katihar in Title (Eviction) Suit No. 19 of 1997, by which he has decreed the eviction suit on contest and directed the defendant petitioner to handover the vacant possession of the suit premises in favour of the plaintiff-opposite party. 3. The Plaintiff-Opposite Party filed the aforesaid suit for eviction on the ground of personal necessity. The plaintiff claims to have purchased the suit land through sale deeds dated 7.11.1990 from the previous owner. The defendant-petitioner was tenant of the said previous owner and on account of rent being fixed at Rs. 50/- an application was made before the House Rent Controller also in which the fair rent was fixed at Rs. 2202/- per month. Appeal against the same was preferred by the defendant-petitioner which is pending. The further case of the plaintiff was that she was carrying on film distribution business and her husband was also carrying on paper business. It was stated that the plaintiff and her husband were living alongwith two grown up sons at present in the house of her father-in-law, which is quite small and it is difficult to carry on business and moreso the house has become completely crowded and there is no scope for convenient living. It is further stated that on the same date on which the plaintiff had purchased part of the building the plaintiffs husband had also purchased the other part of the building by a separate registered sale deed from the same vendor. It was also the case of the plaintiff that the property has been purchased because of its good location for the purpose of shifting the place of business as well as place for keeping their goods, the godown and for residential purpose at one and same place for developing the business and for her and her husband as well as childrens convenient residence. Both the children were college going. It was also stated in the plaint that the plaintiffs husband had also filed a separate suit for eviction of the tenants on the ground of the bona fide personal necessity. Both the children were college going. It was also stated in the plaint that the plaintiffs husband had also filed a separate suit for eviction of the tenants on the ground of the bona fide personal necessity. Reference was made to the proposed map to be passed by the Katihar Municipality for re-modelling the house by the plaintiffs husband and also a map proposed to be passed was submitted by the plaintiff for carrying on business as well as for residing in the house after remodelling of the building. The said proposed map was annexed. 4. In the written statement filed, the stand of the defendant-petitioner is that the suit has been filed due to mala fide motive and the plaintiff, being a Pardanasin lady, was not doing any business. Certain challenges were also made regarding actual previous owners of the land. The further case of the defendant-petitioner is that the plaintiff alongwith her family members are living with her father-in-law and the plaintiff is only a housewife. Moreover none of the brothers of her husband is residing at Katihar, rather working in U.S. and carrying business in Gujrat, whereas sons of the plaintiff were pursuing their study in Delhi. The residential house of the father-in-law of the plaintiff was big one and had sufficient accommodation The further plea was that both plaintiff and her husband have no bona fide personal necessity of any other building. Apart from that it was also alleged that the plaintiffs husband has constructed huge multi-storeyed complex and has another piece of land near the suit land and has been selling plots and shops in the said building, and as a matter of fact, the plaintiffs husband has started the business of acquiring land and old houses and thereafter making construction over the same and to sell flats and shops at a huge profits. It was alleged that the land in dispute and the adjacent part have also been purchased for the same purpose. 5. On a consideration of the case of the parties, the court below came to the conclusion that there is a relationship of landlord and tenant between the plaintiff and the defendant since the same is admitted position and the question of ownership cannot be gone into in an eviction suit. 5. On a consideration of the case of the parties, the court below came to the conclusion that there is a relationship of landlord and tenant between the plaintiff and the defendant since the same is admitted position and the question of ownership cannot be gone into in an eviction suit. The trial court also held that the suit premises reasonably and in good faith was required by the plaintiff for own occupation and for her husband and sons. It was also held that partial eviction will not fulfil the requirement of the plaintiff. 6. Learned counsel for the petitioner has assailed the judgment and decree on several grounds. It was firstly submitted that grave injury has been caused to the defendant due to non-examination of the plaintiff. It is submitted that in the absence of documents showing carrying on any film business, the only way in which the said issue could have been properly considered by the court below is by examination of the plaintiff herself as witness which was denied to the defendant petitioner. It is further stated that the submission for non-examination of the plaintiff having ill-health for past 5-6 months is merely a lame excuse and not sufficient. In support of the said proposition, learned counsel for the petitioner relies upon a Division Bench judgment of this court in the case of Devji Shivji V/s. Karsandas Ramji and Another, AIR 1954 Pat 280 , in paragraph no. 6 of which it has been held as follows: "6...In Gurbakhsh Singh vs. Gurdial Singh, AIR 1927 PC 230(A) the Judicial Committee pointed out that the true object to be achieved by a court of Justice can only be furthered with propriety by the testimony of the party, who personally knowing the whole circumstances of the case can dispel the suspicion attaching to it. In this case, it is the plaintiff who had to show that the apparent state of things is not the real state of things. If the impugned document is regarded as a document invalid in law, then it has to be rejected on legal grounds. But if it is not a document which can be rejected as illegal and void, then the onus is certainly on the plaintiff to show that the deed is not actually what it purports to be. If the impugned document is regarded as a document invalid in law, then it has to be rejected on legal grounds. But if it is not a document which can be rejected as illegal and void, then the onus is certainly on the plaintiff to show that the deed is not actually what it purports to be. The person impugning the apparent character of the deed has to show something or other to establish that it is a benami or a sham transaction. And in several decisions of the Privy Council it has been said that even if there are suspicious circumstances, it is essential to take care that the decision of the Court rests not upon suspicion, but upon legal grounds, established by legal testimony..." 7. Learned counsel for the petitioner also relies upon another Division Bench decision of this court in the case of Ramji Janki and Anr. V/s. Mauni Baba Kale Kambalwala Jai Siyaram Dasji and Others, AIR 1978 Pat 48 , in paragraph no. 5 of which it has been held as follows: "5. It is true that there is no rule of law that the plaintiff must examine himself as a witness in order to establish his case. But a Court of law is entitled to draw an inference adverse to the plaintiff if he does not have the courage to depose what he has claimed to prove facts mentioned, in the plaint. A court would be fully justified in not accepting the averments in the plaint unless there is other coercive evidence in support of it." 8. As held by this court in the aforesaid decisions, it is evident that there is no rule of law under which the plaintiff must necessarily examine himself or herself as a witness. However, it is expected that normally, the plaintiff would examine herself as witness so that the facts, which are in the personal knowledge, of the plaintiff may come before the court and other side may have opportunity to cross-examine the plaintiff to demolish those facts. However, in every case adverse inference cannot be drawn if the plaintiff does not examine herself. However, in every case adverse inference cannot be drawn if the plaintiff does not examine herself. In the present matter from the very beginning the case of the plaintiff, as stated in the pleadings, itself was that part of the properties has been purchased by the plaintiff and the remaining adjoining part of the same property has been purchased by her husband on the same day, and the need of the plaintiff and her husband to remodel the entire house for the purpose of her business and her husbands business including for storage of goods as also for their common residence alongwith two grown up sons, has been pleaded in the plaint. In the said circumstances, even though plaintiff has not examined herself as a witness but her husband has been examined as P.W. 4 in the case and his evidence would be sufficient to demolish the plea of any adverse inference against the plaintiff in the present matter as any question that the defendant could put to the plaintiff could very well be put to the plaintiffs husband also since the issue of joint remodelling of the house for the business and residential purpose of both were involved in the matter. Thus, no adverse inference can be drawn on the ground that the plaintiff has not examined herself in the present matter. So far as the decisions of this court cited by learned counsel for the petitioner are concerned facts in the personal knowledge of the plaintiffs of those cases were involved therein and thus it was held that non-examination of the plaintiffs would result in drawal of adverse inference against them. 9. Learned counsel for the petitioner has also argued that admittedly two eviction suit have been filed by the husband of the plaintiff also on the same day and the said two suits had been decreed on the basis of compromise in the year 1999 itself, but even thereafter till today, the said tenants have been continuing in possession, which shows that the eviction suit had been filed without any actual personal necessity so that the rent may be enhanced and the said enhanced amount may be realised from the existing tenant. It is submitted that the suit ought to be dismissed on the said ground alone. It is submitted that the suit ought to be dismissed on the said ground alone. In the present matter pointing out to the previous history of the litigation regarding enhancement of the rent by the House Rent Controller, it is submitted that only on the failure to enhance the rent an attempt is being made to evict the petitioner from the suit premises on the false ground raised. In this regard learned counsel relies upon a decision of the Supreme Court in the case of G.C. Kapoor V/s. Nand Kumar Bhasin and Others, 2002 1 SCC 610 , in paragraph no. 9 of which it has been laid down as follows: "9. It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble vs. Abdul Rasul Moulali Kotkunde this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for "presuming that his need is not bona fide". It was also held that while deciding this question, the court would look into the broad aspects and if the court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt." 10. In the present matter stand of the plaintiff-opposite party from the very beginning was that the entire premises, both the part belonging to the plaintiff as well as that belonging to her husband had to be re-modelled on the basis of the map prepared for the said purpose and only thereafter they were to shift for their residence and for business purposes to the said premises. It is submitted on behalf of the opposite party that since two suits relating to the half portion belonging to the plaintiffs husband alone had been decreed on compromise whereas the present suit remained pending, therefore, no useful purpose could have been served by merely vacating half part of the suit premises. Therefore, at their request until the continuation of the present suit, the said tenants on the basis of compromise were permitted to continue in the premises of the husband. Therefore, at their request until the continuation of the present suit, the said tenants on the basis of compromise were permitted to continue in the premises of the husband. It was contended that since the requirement was of the entire suit premises for the purpose of residence as well as business and for expanding the accommodation, therefore, the said tenants had been allowed to continue during the pendency of the present suit. The court below has accepted the said explanation as satisfactory and reasonable and this court does not find any occasion to interfere with the same;-moreso it is not a plea that has come during the pendency of the suit, rather that was the case of the plaintiff opposite party from the very beginning that the entire house was to be re-modelled and thereafter, the residence and business were to be shifted there. 11. Learned counsel for the petitioner has sought to submit that the court below has seriously erred in not accepting the clear stand that the plaintiff was not carrying any film business herself, rather the same was only set up as a separate business for getting the benefit of the income tax, as a matter of fact, by her husband. It is submitted that in the said circumstances, the court below ought not to have accepted the plea of personal necessity because she was not carrying on her own business. So far as the said plea is concerned, various witnesses have deposed on this point and the court below has ultimately accepted the fact that the plaintiff is carrying the film business and this court does not find any occasion to interfere with the said finding, which is based on materials on record. Moreover once it is admitted that there is a separate business of film distribution carried on in the name of the plaintiff then it becomes relevant for the purpose of accommodation and it does not make any difference as to whether the said business is being carried on by the plaintiff on her own, as has been stated by several witnesses, or it is being carried out through the husband or Manager because the requirement of the suit premises for the purpose of film distribution business would remain. Thus, the said plea that the plaintiff herself was not carrying on the business in any way does not support the case of the defendant-petitioner. Thus, the said plea that the plaintiff herself was not carrying on the business in any way does not support the case of the defendant-petitioner. 12. The aforesaid findings have also to be considered in view of the stand taken by the defendant himself that the premises, in his occupation, were in dilapidated condition, both the floor and the roof were in bad shape and the roof was leaking and during the rainy season nearly 5"-6" of rain water accumulates. Such stand has been reiterated by several of the defendant witnesses. These statements clearly bolster the claim of the plaintiff-opposite party that the suit premises was in a very bad shape and needed to be remodelled in order to make it fit for residence and business purposes for the plaintiff and her husband including two grown up sons. 13. Learned counsel for the petitioner has sought to assail the finding regarding the genuineness and bona fide of personal necessity on the ground that the plaintiffs father-in-law has three storeyed house. It is the admitted position that the said house has three storeys but the same has been found to be a small house situated over a small piece of land and the details of the house has also been mentioned in the plaint. Moreover, the court below has rightly held that the plaintiff and her husband have-their business and in the said circumstances, it was open to them after having purchased the land to have taken a decision to shift in their own house after remodelling and re-construction of the house for the purpose of residence and business. Mere existence of a house of the father-in-law cannot deprive a person of her right to shift of her own premises after having purchased the same. Thus, it cannot be said that there was no personal necessity of the plaintiff-opposite party. Moreover in the present matter, the father-in-law has deposed and stated that he required the entire house for the purpose of his own business and his visiting children, being 8 in number including the plaintiffs husband. 14. Learned counsel for the petitioner also sought to assail the requirement of bona fide personal necessity on the ground that the plaintiff and her husband alongwith their partner have constructed a huge multi-storeyed complex near the suit premises. 14. Learned counsel for the petitioner also sought to assail the requirement of bona fide personal necessity on the ground that the plaintiff and her husband alongwith their partner have constructed a huge multi-storeyed complex near the suit premises. In this regard, the court below has come to the clear conclusion on the basis of evidence that such business was being carried on by a private limited company in which the husband of the plaintiff was also a share-holder. Thus, any such property belonging to the company cannot be held to be the property of the husband of the plaintiff and the court below has rightly decided the question of personal necessity on this issue. 15. Lastly, learned counsel for the petitioner sought to argue that the plaintiff has not disclosed as to what will satisfy her personal necessity and in the absence of the same, it is difficult for the court to determine the issue and the only conclusion on such vague pleadings would be that the suit for eviction is a mere subterfuge. 16. In this regard I find that the court below has considered the question of partial eviction also and has also come to the conclusion that the plaintiff has own business and her husband has paper-mart business and besides this they have two major sons. They also required separate room. It has been found that for developing the business there was requirement of office, godown etc. for which a proposed map has been submitted for remodelling of the suit premises. For the said reasons, the court below has come to the conclusion that half of the suit premises was not sufficient and the requirement of the plaintiff for the purpose of business as well as residence would not be satisfied and the court below has also taken note of the fact that the defendant himself in his evidence in paragraph no. 6 had deposed that the plaintiff and her husband wanted to re-construct the house and he has no objection to the same if he is provided with a passage. This statement has been evidently made because the defendants residential house is also adjoining to the suit premises. For the said purpose the court came to the conclusion that the only concern of the defendant-petitioner appeared to be provided with a passage through the suit premises. This statement has been evidently made because the defendants residential house is also adjoining to the suit premises. For the said purpose the court came to the conclusion that the only concern of the defendant-petitioner appeared to be provided with a passage through the suit premises. Moreover since there is a clear finding that the entire premises were required by the plaintiff for the purpose of business and residence, this court does not find any infirmity in the conclusion of the court below that partial eviction could not have satisfied the requirement of the plaintiff. 17. Learned counsel for the petitioner has also sought to rely upon several decisions of the Supreme Court on the question of other premises, which came into possession of the plaintiffs during the pendency of the suit that ought to be taken into consideration for the purpose of considering his requirement of personal necessity. The cases cited are those of Hasmat Rai and Anr. V/s. Raghu Nath Prasad, AIR 1981 SC 1711 and the case of Shiv Sarup Gupta V/s. Dr. Mahesh Chand Gupta, 1999 6 SCC 222 . Needless to say that the courts are obliged to consider the continuing existence of personal necessity on the basis of subsequent events but in the present matter no such occasion arises on the ground of obtaining of compromise decree by the husband of the plaintiff since in the plaint the case was that the suit premises as well as the premises owned by the plaintiffs husband would be required for re-modelling before shifting the residence and business. Hence, obtaining of compromise decree of eviction in the suit by the husband cannot be considered as a subsequent event which has defeated the claim of the plaintiff. 18. Thus, on a consideration of the entire facts and circumstances, this court does not find any infirmity in the judgment and decree of the court below. The revision application is, accordingly, dismissed.