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2007 DIGILAW 1591 (PAT)

Shiv Dayal Taneja v. Vimla Devi

2007-09-27

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The revision application has been filed against the judgment dated 29.6.2006 passed by Civil Judge, Junior Division II, Samastipur in Eviction Suit No. 6 of 2003 by which he has decreed the suit of the plaintiff-landlord-opposite parties against the tenant-defendant-petitioners. 3. Learned Counsel for the petitioners sought to assail the finding of bona fide personal necessity on the ground that in paragraph no. 12 of the plaint it is stated that the husband of the plaintiff had informed the defendant-petitioners about the requirement of the suit premises by the landlady for starting Readymade Clothes business. It is submitted that subsequently in paragraph no. 14 of the plaint it is stated that Readymade clothes shop could not be started in the premises for setting up the business for the son and thus he is left without any work. 4. This Court does not find any contradiction in the statements made in the two paragraphs. It is clearly mentioned in para 12 that the plaintiff-opposite party no. 1 is a Pardanaseen lady and her business and affairs are looked after by her husband, opposite party no. 2 and further the necessity of opening Readymade Clothes shop has been mentioned in paragraph no.12 and paragraph 14 merely elaborates that the same was for the purpose of son of the plaintiffs. Apart from the fact that there is no contradiction between the two paragraphs, under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, it is permissible for a landlord to take such a ground of personal necessity for starting business by the son of the landlord. Thus, there is no merit in the said submission of the learned counsel for the petitioners. 5. Learned Counsel for the petitioners next forcefully contends that in the present matter there is no finding regarding partial eviction which is a mandatory provision under the BBC Act and for the said reasons the judgment and decree of the court below cannot stand. It is pointed out that no issue was framed at all with respect to partial eviction as to whether the personal necessity of the plaintiff-opposite parties would be satisfied by such partial eviction. It is further submitted that apart from not framing the issue, there is also no discussion on the said point in any part of the judgment. 6. It is pointed out that no issue was framed at all with respect to partial eviction as to whether the personal necessity of the plaintiff-opposite parties would be satisfied by such partial eviction. It is further submitted that apart from not framing the issue, there is also no discussion on the said point in any part of the judgment. 6. Learned Counsel for the petitioners submits that even if the suit premises is a single room it has been held by several judgments of the Apex Court and this Court that it is essential for the court below to look into the fact as to the size of the said room and as to whether the same can be divided for separate business of the landlord or not dependent upon the bona fide need of the landlord for the suit premises in question. In support of the said proposition learned counsel for the petitioners relies upon a decision of the Supreme Court in the case of Krishna Murari Prasad vs. Mitar Singh: AIR 1994 Supreme Court 489, in para-3 of which it has been held as follows: "It is obvious that the High Court proceeded on the basis that a presumption arises that where the premises comprises only of one room, the proviso to clause (c) of sub-sec. (1) to S.11 of the Act is not attracted since its application is not practicable. Obviously, this assumption is fallacious since it pre-supposes indivisibility of a premises comprised of one room, irrespective of its dimensions and even when the room is big enough to permit division to satisfy the needs of the landlord as well as the tenant, it is a question of fact in each case whether such a partial eviction can be made or not. This enquiry has to be made by the court after reaching the conclusion that the landlords requirement for occupation of the premises set up by him has been made out. In failing to do so, the courts below overlooked this statutory requirement." 7. Learned Counsel for the opposite parties, on the other hand, submits that it is evident from the description of the suit premises in schedule-Ill that the same is a single room running from eastern to western side alongwith a Verandah and thus it may not be possible at all to divide such a room for satisfying the personal necessity of the plaintiffs. It is further submitted that the entire suit premises is required for the purpose of opening Readymade Clothes shop by the plaintiffs and thus the absence of finding on partial eviction does not vitiate the judgment. In support of the said stand learned Counsel relies upon a decision of the learned single Judge of this Court in the case of Deo Narain Sah & Ors. vs. Chano Kumari: 2006(3) PLJR 221, in para7 of which it has been held as follows: "Coming to the last issue raised before this Court as to partial eviction, it is submitted that it was incumbent upon the Court to consider the question of partial eviction whether pleaded or not and the Court having not considered the same, the judgment stands viti- ated. This question has to be seen in light of facts which have been found established in the present case. Firstly, it has to be kept in mind that defendants have denied being tenants of the plaintiff and secondly, it is established that it is undisputed that the premises in question is only one room and Verandah in front. Surely if any Court were to consider partial eviction, the competing claim being shop and personal residence of an old lady being the landlady, the needs of the landlord of residence could not be met by anything less a room for residence. That being so, merely because the Court did not record a finding with regard to partial eviction, in the peculiar facts and circumstances of this case, I am not inclined to interfere." 8. On a consideration of the rival submissions of the parties this Court finds force in the submission of the learned Counsel for the petitioners. It has been held by a catena of decisions of both the Apex Court and this Court that consideration of and giving findings regarding the issue of partial eviction are mandatory and if the court below does not consider the said issue then its judgment would be vitiated to that extent. It has been held by a catena of decisions of both the Apex Court and this Court that consideration of and giving findings regarding the issue of partial eviction are mandatory and if the court below does not consider the said issue then its judgment would be vitiated to that extent. In this regard, the law has been clearly laid down in the decision of the Supreme Court in Krishna Murari Prasads case (supra) where it has been held that the assumption of the High Court is erroneous and fallacious that simply because the premises comprises of one room it pre-supposes its indivisibility irrespective of its dimensions, even when the room is big enough to permit division to satisfy the needs of the landlord as well as the tenant. 9. In view of the aforesaid discussions, the revision application is partly allowed and the judgment and decree of the court below is set aside to the extent that there is no finding regarding partial eviction and the matter is remanded to the court below only for the limited purpose of considering and deciding the issue as to whether the bona fide personal necessity of the plaintiffs would be satisfied by a partial eviction from the suit premises in question of the tenant. It will be open to the parties to lead evidence restricted to the said point and after hearing the parties the Court below will pass final orders in the matter expeditiously preferably within a period of four months from today.