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2008 DIGILAW 551 (PAT)

Baijnath Prasad v. Sahdeo Mahto

2008-03-27

S.N.HUSSAIN

body2008
ORDER : This Civil Revision has been filed by the sole defendant-petitioner under the proviso to subsection (8) of Section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereafter referred to as 'the Act' for the sake of brevity) challenging ORDER :/JUDGMENT : of his eviction dated 25.3.2003, by which the learned Munsif, Biharsharif, Nalanda, decreed Eviction Suit No. 11 of 1998. 2. It transpires that against the aforesaid JUDGMENT : and decree dated 25.3.2003, the defendant-petitioner preferred an appeal bearing TA No. 2 of 2003, which was dismissed by the learned Additional District Judge-I, Nalanda, on 12.9.2006 holding that title appeal was not maintainable and a civil revision would lie under the proviso to Section 14(8) of the Act as the eviction suit was filed only on the ground of personal necessity and the issue regarding default was wrongly framed by the trial court. 3. The aforesaid suit was filed by the sole plaintiff-opposite party for eviction of defendant-petitioner from the suit premises, namely, Shop NO.5 situated in a portion of plaintiff's building standing on Plot No. 52, appertaining to Khata No. 240 of Thana No. 97 within Tauzi No. 11092 by the side of the road in Muhalla Murarpur (Laheri) of the town of Biharsharif (Nalanda) on the ground of personal necessity of the plaintiff for the said shop room. 4. The plaintiff's claim, in short, was that he was the owner of the suit premises in which he inducted the defendant as a tenant in the year 1988 at a, rent of Rs. 95.00 per month, which was subsequently enhanced to Rs. 155.00 per month and the defendant was using the suit premises as a shop of stationary items and paid rent till January, 1998 and, thereafter, stopped payment of rent to the plaintiff and became defaulter. 5. However, the ground, on which the plaintiff sought eviction of the defendant was only his bona fide requirement of the suit premises as he had three married daughters, out of whom one was Sanju Devi, whose husband Bachchu Mahto was earlier a cultivator, but subsequently due to heart ailment was unable to continue with cultivation and, thus, required the suit premises for running a shop to earn livelihood for his family. 6. 6. The defendant admitted the relationship of landlord and tenant between the parties, but contested the suit on the issue of bona fide personal requirement claiming that the aforesaid Bachchu Mahto had no necessity for the suit premises and that the plaintiff wanted to oust the petitioner only to get enhanced rent although defendant had paid advance of Rs. 4,000.00 to the plaintiff for construction of the shop room and furthermore two shop rooms bearing shop rooms no. 1 and 3 in the same premises were vacated by their respective tenants in the years 1996 and 1997 and were again let out by the plaintiff. 7. The learned court below framed seven issues for consideration in the eviction suit, which were as follows:(i) whether the suit as framed is maintainable? (ii) Whether the plaintiff had any cause of action? (iii) Whether plaintiff had bona fide requirement of the suit premises? If yes whether partial eviction of the suit premises would be legal and proper? (iv) Whether defendant is a defaulter in payment of rent? (v) Whether plaintiff is entitled to receive arrears of rent? (vi) Whether plaintiff is entitled to a decree of eviction? (vii) Whether plaintiff is entitled to cost or any other relief? 8. So far issues no. (iv) and (v) are concerned, the learned court below in paragraphs no. 9 and 10 of its impugned ORDER :/JUDGMENT : has specifically held that the defendant was not a defaulter in payment of rent of the suit premises to the plaintiff and that there is no arrears of rent payable to the plaintiff and the defendant shall go on paying rent to the plaintiff at the rate of Rs. 155.00 till his eviction. These two issues have been decided in favour of the defendant, which has not been challenged and are not in issue in this revision. Moreover, the said issues regarding default and rent were wrongly framed by the' trial court as the eviction suit was filed only on the ground of personal necessity and it was decreed also on the ground of personal necessity alone. 9. Moreover, the said issues regarding default and rent were wrongly framed by the' trial court as the eviction suit was filed only on the ground of personal necessity and it was decreed also on the ground of personal necessity alone. 9. In the instant case, certain facts are admitted by both the parties, namely, that the plaintiff is the owner-landlord of the suit premises and the defendant is his tenant, that there is relationship of landlord and tenant between the parties, that the rent of the suit premises was enhanced from time to time by mutual consent, that the present rent was Rs. 155.00 per month and that the plaintiff had no son and had only three daughters, one of whom, namely Sanju Devi, was married to Bachchu Mahto. In the said circumstances, only following two points are contentious in this civil revision:- (a) Whether the plaintiff had bona fide requirement of the suit premises? (b) Whether partial eviction of the defendant from the suit premises would suffice plaintiff's requirement? 10. point No. 1(a): Plaintiff had specifically claimed that his son-in-law Bachchu Mahto was suffering from heart ailment and hence he was unable to do cultivation and required the suit shop room for starting his own business. In support of his claim the plaintiff had produced Exts 1 and 1/A which are documents of Indira Gandhi Institute of Medical Sciences, Patna, showing that the said Bachchu Mahto was under treatment of heart ailment in the said Institute from 1997 to 1998. He had also produced Exts. 1/B and 2, which are documents of All India Institute of Medical Sciences, New Delhi showing that the said Bachchu Mahto was under treatment of heart ailment in the said Institute from where he was discharged in March, 1998 and the suit was filed in July, 1998. 11. He had also produced Exts. 1/B and 2, which are documents of All India Institute of Medical Sciences, New Delhi showing that the said Bachchu Mahto was under treatment of heart ailment in the said Institute from where he was discharged in March, 1998 and the suit was filed in July, 1998. 11. The aforesaid facts have been fully corroborated by the oral evidence of seven witnesses adduced on behalf of the plaintiff including the plaintiff (P.W. 1) himself and his son-in-law Bachchu Mahto (P.W. 5) for whose requirement the suit was filed, who clearly stated that the said Bachchu Mahto was suffering from heart ailment for which he was treated at I.G.I.M.S., Patna and A.I.I.M.S., New Delhi where he was advised not to take up cultivation work and that his lands having been disposed of for his treatment, he had become dependent upon his father-in-law, namely the plaintiff, and that no other shop being vacant the plaintiff required the suit shop for his son-in-law to start a Parchun shop. 12. On the other hand, the defendant also produced several documents, namely, Ext. A, which is a copy showing payment of rent, Ext. B which is plaintiffs Advocate notice, Ext. C, which is defendant's reply notice, Ext. D which is a copy of compromise petition in Eviction Suit No. 25 of 2000, Ext. E which is a certified copy of defendant's petition in Eviction Suit No. 25 of 2000, Ext. F which is a certified copy of ORDER :-sheet of Eviction Suit No. 25 of 2000, Ext. G series, which are money ORDER :receipts and Ext. H series which are postal receipts. However, none of the documentary evidence adduced on behalf of the defendant could disprove or even create doubt with respect to the plaintiffs claim that his sonin-law was suffering from heart ailment and was unable to do cultivation and had no other source of livelihood. 13. H series which are postal receipts. However, none of the documentary evidence adduced on behalf of the defendant could disprove or even create doubt with respect to the plaintiffs claim that his sonin-law was suffering from heart ailment and was unable to do cultivation and had no other source of livelihood. 13. So far oral evidence adduced on behalf of the defendant is concerned altogether, six defendant witnesses had deposed, out of whom D.W. 1 was the defendant himself and with respect to the plaintiff claim of personal requirement they claimed that Bachchu Mahto was doing cultivation work at his home and that no son-in-law of the plaintiff was dependent upon him and hence he had no bona fide requirement of the suit premises but they could not substantiate their statement by any material whatsoever. However, D.W. 4 Kamdev Prasad in paragraph 3 of his deposition admitted that plaintiff had bona fide requirement of the suit premises, whereas, D.W. 5 Ramchandra Prasad, who is co-villager of Bachchu Mahto, in paragraph 6 of his deposition admitted that Bachchu Mahto was ailing since years and had undergone heart operation and he could not deny that his treatment expenses were meted out by selling his lands. D.W. 6 was merely a formal witness. In the said circumstances even the oral evidence on behalf of the defendant could not disprove the plaintiff's claim of bona fide personal requirement. 14. Now question arises as to whether bona fide personal requirement could have been meted out from other shop rooms of the plaintiff, which, according to the defendant were vacated by the tenants. In support of his claim, the defendant – petitioner had produced Ext. D, Ext. E and Ext. F, which were copy of compromise petition, certified copy of defendant's petition and certified copy of the ORDER :-sheet, all of Eviction Suit No. 25 of 2000, which was filed by the plaintiff against another tenant. There is no material to support that shop no. 1 and shop no. 3 were vacated by the respective tenants in the years 1996 and 1997, respectively. Ext. F are copies of ORDER :s dated 6.9.2002, 7.9.2002 and 15.11.2002 passed in Eviction Suit No. 25 of 2000, which shows that defendant of that suit was directed by the learned court below to vacate the suit premises by 15.11.2002, but he vacated the suit premises on 25.11.2002, as shown in Ext. Ext. F are copies of ORDER :s dated 6.9.2002, 7.9.2002 and 15.11.2002 passed in Eviction Suit No. 25 of 2000, which shows that defendant of that suit was directed by the learned court below to vacate the suit premises by 15.11.2002, but he vacated the suit premises on 25.11.2002, as shown in Ext. E, which was a petition filed by the defendant of that suit as per the compromise arrived at between the parties, which is Ext. D. 15. From the aforesaid facts, it is quite apparent that at the time when the instant eviction suit was filed in the year 1998, the shop room, which was subject matter of Eviction Suit No. 25 of 2000 was not vacant. Furthermore, the defendant had failed to show by any evidence whatsoever as to whether the said shoproom or any other shop room was vacant at the time of passing of the impugned ORDER :. Hence, on the basis of a vague submission of the defendant, not supported by any material, the claim of the plaintiff cannot be legally discarded. 16. Learned counsel for the defendant produced a copy of ORDER :dated 14.1.2000, by which this Court dismissed Civil Revision No. 2021 of 1999 filed by the petitioner challenging ORDER :of the learned court below permitting the plaintiff to withdraw his offer to the defendant to go into another vacant shop room. Although this Court found that such an ORDER :was not revisable, but by the said ORDER :the trial court was directed to take into account the conduct of the plaintiff in making reasonable offer and then withdrawing the same at the time of JUDGMENT :. At the same time, the trial court was also directed to dispose of the suit (Eviction Suit No. 11 of 1988) within three months from that ORDER :. However, the said aspect was also considered by the learned court below, but in view of the fact that no shop room was vacant at that time in the year 2000 and there was also no material to show that any shop room was vacant at the time of passing of the impugned ORDER :, the learned court below was quite justified in holding that there was no occasion for considering that aspect in 2003, specially when defendant failed to show that the said other shop room was vacant. In the said circumstances, this plea of the petitioner also fails. 17. Point No. (b): So far the question of partial eviction is concerned, the learned court below has considered the same and has specifically found that plea of partial eviction has not been raised by the defendant either in his written statement or in his evidence although the onus was squarely on the tenant to show that partial eviction shall satisfy the plaintiff's personal necessity. Even the length and breadth of the suit shop was not given by the defendant, whereas, the plaintiff had specifically stated that the suit shop was entirely required by him for using it as a shop by his son-in-law and it barely fulfilled his requirement. Learned court below has also found that due to bitter dispute between the parties, it is not possible and practicable that the suit shop could be partially used by both the parties. 18. In the aforesaid facts and circumstances, this Court does not find any illegality in the imugned ORDER :of the learned court below and, accordingly, this Civil Revision is dismissed. However, in the facs and circumstances of this case, there shall be no ORDER :as to cost.