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2007 DIGILAW 218 (PAT)

Raj Kumar Prasad @ Raj Kumar Gupta v. Kishun Prasad @ Krishna Pd.

2007-01-31

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the appellants and learned counsel for tne respondents. 2. This appeal is directed against the judgment and decree dated 18.3.2004 by which the learned District Judge, Bhojpur, Ara dismissed Title Appeal No. 08 of 2003 and affirmed the judgment and decree dated 12.10.2002 passed by the learned Execution Munsif, Bhojpur, Ara decreeing Eviction Suit No. 1 of 1983 filed by the plaintiffs-respondents. 3. The aforesaid suit was filed by the plaintiffs-respondents for eviction of the defendants-appellants from the suit premises under Sec.11 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 and also for arrears of rent on the ground of default in payment of rent by the tenant (defenaants-appellants) as well as on the ground of personal necessity of the landlord (plaintiffs-respondents). However, the said suit was decreed only on the ground of personal necessity of the plaintiffs against which the said Title Appeal was filed by the defendants and the same was dismissed by the learned court of appeal below upholding the findings of the trial court with respect to personal necessity of the plaintiffs-respondents and partial eviction. 4. Learned counsel for the appellants submits that although subsequent event could have been taken note of by the courts while passing the impugned judgments, but the party relying on it must seek amendment of pleadings and only thereafter such subsequent event can be taken into account. In support of the said contention, learned counsel for the appellants relied upon a decision of the Hon ble Apex Court in case of Om Prakash Gupta vs. Ranbir B. Goyal, reported in AIR 2002 Supreme Court 665. In the said circumstances, he submits that the learned court below wrongly took judicial notice about the fact that all the seven sons of the plaintiff-respondent have become major as no amendment petition was filed by the plaintiffs in that regard. He also states that non-filing of any amendment petition has also taken the defendants-appellants by surprise by making a new case different from the original case of the plaintiffs and hence the said ground should not have been considered while passing the impugned judgments. 5. He also states that non-filing of any amendment petition has also taken the defendants-appellants by surprise by making a new case different from the original case of the plaintiffs and hence the said ground should not have been considered while passing the impugned judgments. 5. Learned counsel for the appellants further submits that there was an absolute vagueness in the claim of the plaintiff as he was already running a shop and he required the suit premises for his sons, but there was no specific case that for which of the seven sons the said requirement had arisen. Learned counsel for the appellants also avers that the learned courts below had itself found that several shops in the vicinity owned by the plaintiffs were vacated during the pendency of the Title Suit and Title Appeal which had seriously affected the claim of the plaintiff with respect to bona fide personal requirements. In the said circumstances, learned counsel for the appellants submits that the learned courts below had dealt with the matter with a wrong legal approach and bias against the defendants-appellants. 6. Learned counsel for the appellants further states that the finding of partial eviction is also illegal and vague as neither configuration and nor dimensions of the suit premises had been considered and without considering the same and without considering how many sons required the suit premises, it has been assumed that partial eviction of defendants from the suit premises will not serve the plaintiffs purpose. 7. It is quite apparent from the pleadings of the parties that the relationship of landlord and tenant between the original plaintiffs and defendants is admitted. The question of default in payment of rent is also not a question here and the only question involved in this Second Appeal is with respect to bona fide personal requirement of the plaintiffs sons for the suit premises which is a shop room. 8. The question of default in payment of rent is also not a question here and the only question involved in this Second Appeal is with respect to bona fide personal requirement of the plaintiffs sons for the suit premises which is a shop room. 8. So far the question of subsequent events is concerned, the Hon ble Apex Court in case of Om Prakash Gupta (supra) had specifically found that the court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. 9. Here in the instant case, there is no question of original relief having become inappropriate, but it is clear that the subsequent event or changed circumstances would definitely shorten the litigation. So far bringing of subsequent event in the notice of the court by way of filing an amendment petition is concerned, the said decision was with respect to a new plea of defendant that during pendency of the appeal premises had been resumed by Development Authority and so eviction decree has to be set aside. The said matter was with respect to a fact which was foreign to the original pleadings of the parties and hence the new plea had to be brought on record by way of amendment. But here in the instant case the facts considered by the courts below were already there in the original pleadings of the parties as the statements with respect to the seven sons of plaintiff no.1 were already made in the plaint filed in the year 1988, whereas even according to the defendants, the eldest son of plaintiff no.1 was aged about 22-23 years at the time of filing of the suit, whereas the other sons were students. Hence I do not see any illegality in the conclusion arrived at by the court of appeal below in its judgment passed in the year 2004 that by that time, the said sons had become major and the courts were fully justified in taking judicial notice of the said subsequent event specially when in view of the specific case of the defendants themselves, there was no question of their being taken by surprise. Accordingly, the said decision of the Hon ble Apex Court is not applicable to the facts of the instant case. 10. So far the question of vagueness and absence of any specific pleadings of the plaintiff as for which of the sons, plaintiff no.1 wants the suit premises is concerned, it is quite apparent that it is not the case of defendants that any of them is employed, hence, in the said circumstances their requirement cannot be ruled out and the said finding of the lower appellate court cannot be held to be vague or illegal. Furthermore the question raised by the appellants regarding the fact that several shops of the plaintiffs were vacated during the pendency of the Title Suit and Title Appeal is similarly not convincing as it is the question of choice of plaintiff no. 1 and his sons and if they choose the suit premises for starting their business, the courts cannot but allow their claim. 11. Furthermore, so far the question of partial eviction is concerned, the lower appellate court has specifically stated that it has considered the configuration of the suit premises and also considered that three to four sons of the plaintiffs have sought to start their business in the said shops and therefore, the learned court of appeal below was correct in coming to the finding that partial eviction will not satisfy the bona fide personal requirement of the plaintiffs-respondents. 12. In the aforesaid facts and circumstances, I do not find any illegality in the impugned judgment and decree, nor any substantial question of law arises in this appeal and accordingly, the same is dismissed.