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2009 DIGILAW 1497 (JHR)

Munni Devi Gupta v. Om Prakash Agarwala & Sons

2009-11-24

R.K.MERATHIA

body2009
Order This civil revision application has been filed under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the 'Act') against the judgment dated 19.2.2009 passed by learned Additional Munsif-I, Dhanbad in Eviction Suit No. 58 of 1998 decreeing the suit of eviction filed by the plaintiffs-opposite parties (hereinafter referred to as the 'landlords') for eviction of defendant-petitioners (hereinafter referred to as the 'tenants') on the ground of personal necessity. 2. The case of the landlords interalia is that plaintiff no.1 is Hindu Undivided Family (H.U.F.) represented through its karta and manager (Late) Om Prakash Agarwala and plaintiff nos. 2 to 4 are members of H.U.F. The original tenant was inducted in the suit premises measuring an area of 8 ¼ ' x 12 ½ ' on 1.5.1964 on a monthly rental of Rs. 125/- under a lease for a period of 10 years i. e. upto 31.3.1974. Since, he did not vacate the suit premises after expiry of the lease period, a notice was given to him to vacate on the ground of personal necessity of second son Pradip. However, due to intervention of well-wishers and friends, he was allowed to continue till 1.8.2001 on the agreed terms under a lease agreement dated 14.9.1991, but he filed a suit (Title Suit No. 28 of 1992) alleging that he signed on enhanced rent due to pressure, which has been dismissed up to appellate stage holding that he agreed for payment of the rent at the rate of Rs. 550/- per month and there was no coercion. Further case of the landlords is that Pawan requires the suit premises for doing independent business as all the three brothers are engaged in business in one small shop. The suit premises is situated in Sonapatti, which is a business area and is adjacent to the shop of the landlords and is most suitable for opening a new shop. But, in spite 'of the request, tenants did not vacate the suit premises. 3. The suit premises is situated in Sonapatti, which is a business area and is adjacent to the shop of the landlords and is most suitable for opening a new shop. But, in spite 'of the request, tenants did not vacate the suit premises. 3. The case of the tenants inter alia is that the lease agreement dated 14.9.1991 was for 10 years i.e. up to 2001, but the suit was filed in the year 1998, and therefore, there was no cause of action; that the landlords do not require the suit premises as alleged; that Pawan is doing business in the ancestral house at Lal Bazar; that one shop was given on rent during pendency of the suit in the Lal Bazar; that the shop vacated by Sub hash at Sonapatti is in possession of the landlords; that the landlords had filed a suit being Title (Eviction) Suit No. 27 of 1996 against another tenant on the ground of personal necessity, but thereafter it was compromised on enhancement of rent. 4. The trial court framed 10 issues. The parties led documentary and oral evidences. There is no dispute with regard to relationship of landlord and tenant. The trial court inter alia found that the tenant lost the said suit-Title Suit No. 28 of 1992 up to appellate stage in which it was held that he signed the agreement dated 14.9.1991 without any coercion and agreed for enhancement of rent at the rate of Rs 550/- per month. Issue No. 7 regarding personal necessity and issue no. 8 regarding partial eviction were taken up together by the trial court. After considering the respective cases and the evidences of the parties and the judgments relied by them, the learned trial court decreed the suit. It is inter alia held that the landlord were doing business of waste newspapers in one shop and the earning from such business is not sufficient for their livelihood, and therefore, Pawan wants to do independent business in the suit shop which is most suitable to him. It is inter alia held that the landlord were doing business of waste newspapers in one shop and the earning from such business is not sufficient for their livelihood, and therefore, Pawan wants to do independent business in the suit shop which is most suitable to him. The trial court considered Explanation-II to Section 11 (1) (c) of the Act, which reads as follows: "Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference." Regarding partial eviction, it was held that the suit premises is only 8 ½ x 12 ½ , and therefore, partial eviction will not satisfy the need of landlord/tenant. 5. Mr. B.V. Kumar, learned counsel appearing for the tenant submitted that the landlord could not prove that the ground of personal necessity is bona fide; that there was no cause of action for the suit, as it was filed in the year 1998 i.e. during subsistence of the lease agreement. He further submitted that the other suit filed by the landlord on the ground of personal necessity against another tenant was compromised after enhancement of rent that this suit has been filed for the requirement of Pawan who is engaged in his business at Lal Bazar; that during pendency of suit some shops were vacated by the tenants; that Pawan did not appear for his examination as witness, and therefore, adverse inference should be drawn against the landlord; in view of the judgments reported in AIR 1968 SC 1413 (Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and Others), AIR 1961 Patna 158 (Ragabati vs. United Bank of India Ltd. and Another) and AIR 1960 Patna 223 (Devji Shivji vs. Mohanlal Odhabji Thacker and Others). 6. Mr. P.K. Prasad, learned Senior Counsel appearing for the landlord on the other hand submitted that tenant cannot blow hot and cold at the same time. On the one hand he is relying on the said lease agreement dated 14.9.1991 to say that the suit could not be filed during subsistence of lease agreement and on the other hand, he challenged the said agreement on the ground that his signatures were obtained by pressure and he signed due to ignorance of English language. On the one hand he is relying on the said lease agreement dated 14.9.1991 to say that the suit could not be filed during subsistence of lease agreement and on the other hand, he challenged the said agreement on the ground that his signatures were obtained by pressure and he signed due to ignorance of English language. He further submitted that in any event, it has been held in paragraph 20 of the case reported in AIR 1994 Patna 91, Smt. Madalsa Devi vs. Mridula Chandra [ : 1993(1) PLJR 50] that even in a fixed term lease if there is default, the tenant will become liable to be evicted; and that if the tenants' acts of omission or commission are covered by anyone or more of the grounds enumerated in Section 11 of the Rent Act, he would be liable to be evicted irrespective of the fact whether the tenancy was month-to-month or for a fixed period. He therefore submitted that even during subsistence of lease, the suit could be instituted on the ground of personal necessity. He further pointed out that on the basis of such unregistered agreement, the tenant cannot claim that it created a tenancy for 10 years. In the said suit-Title Suit No. 28 of 1992 filed by the tenant, he alleged that he was coerced to agree for payment of higher rent at the rate of Rs 550/- per month. But, it was held that there was no such coercion and he agreed to pay the said rent. No issue was involved in the said suit as to whether by the said unregistered lease agreement, tenancy could be created for 10 years. Therefore, the judgment passed in the said suit cannot be relied for saying that there was a valid and legal fixed term tenancy for 10 years. 7. Regarding personal requirement, Mr. Prasad submitted that the landlord has proved that the suit premises is most suitable as it is in Sonapatti-which is a business locality and is adjacent to the shop of other brothers. Moreover, the tenant cannot dictate to landlord as to where he should start business. The other tenant Subhash Agarwal vacated the shop, but handed it over to one Santosh Singhania-his brother-in-law and thus the said shop was not in possession of the landlord, which will appear from the Pleader Commissioner's evidence and his report (D.W.-3 & Exhibit-J). 8. Moreover, the tenant cannot dictate to landlord as to where he should start business. The other tenant Subhash Agarwal vacated the shop, but handed it over to one Santosh Singhania-his brother-in-law and thus the said shop was not in possession of the landlord, which will appear from the Pleader Commissioner's evidence and his report (D.W.-3 & Exhibit-J). 8. Regarding non-examination of Pawan, he submitted that two plaintiffs Pramod and Pradip examined themselves as P.W. 1 &P.W. 2 respectively and two other independent witnesses were also examined, and therefore, no adverse inference can be drawn in view of the decision reported in 1988 PLJR 255 Krishna Kant Pandey vs. Suniti Bala Sarkar. 9. He also submitted that compromise, in a suit, filed against other tenant, for residential purposes, cannot stand in the way of grant of decree in this case. 10. After considering the respective cases, the records of the case and the judgments relied by the parties, I find as follows. There was no bar in instituting this suit for personal necessity, if the suit filed by the landlord against other tenant was compromised. It has come in' evidence that the said suit was filed in respect of the residential premises, situated over the suit premises, for the purpose of residential requirement of the landlord, whereas this suit relates to the requirement of the shop for the purpose of business of Pawan. Further, there was no bar for instituting this suit during subsistence of the lease agreement. In the suit filed by the tenant challenging the enhancement of rent, the only question involved was whether he was coerced for enhancement of rent or not. However, it was held that there was no such coercion. Whether the said unregistered lease agreement validly created a tenancy for ten years was not the question involved in the said suit. Further, in the Division Bench judgment of Smt. Madalsa Devi (supra) it was inter alia held in paragraph 20 that:- "The submission to my mind is based on the misapprehension that the Rent Act is intended to protect the tenant in an absolute and unqualified sense. In my view that is not the position. It is quite true that before the Rent Act came a tenant specially a month to month tenant was largely at the mercy of the landlord. In my view that is not the position. It is quite true that before the Rent Act came a tenant specially a month to month tenant was largely at the mercy of the landlord. The Rent Act was intended to remedy this situation and to secure the position of the tenant so as not to leave him at the complete mercy of the landlord. Therefore, many of the provisions of the Rent Act are beneficial to the tenant and curb the contractual rights of the landlord. In this regard an important feature of the Rent Act was to specially enumerate (vide Section 11) the grounds on which alone the landlord could seek eviction of the tenant. In laying down these grounds the Rent Act did not make any distinction between a tenancy from month to month and a lease for a fixed terms Consequently, as soon as a tenant's acts of omission or commission are covered by anyone or more of the grounds enumerated in S. 11 of the Rent Act he would be liable to be evicted at the instance of the landlord, irrespective of whether the tenancy was from month to month or for a fixed period. It is to be noted that the object of the Act is as follows:- 'An Act to regulate the letting of building and the rent of such buildings and to prevent unreasonable eviction of tenants there from in the State of Bihar.' (Emphasis supplied)" 11. The allegation of the tenant that one of the shop of the landlords in the Sonapatti is lying vacant has not been proved, rather it has come in evidence that the said shop was vacated by the tenant Subhash Agarwala, but he handed it over to his brother-in-law Santosh Singhania and the said shop was not in possession of the landlord. 12. Regarding the contention of the tenant that-for non-examination of Pawan, adverse inference should have been drawn, it appears that two plaintiffs-brothers of Pawan were examined as P.W. 1 and P.W. 2 respectively, apart from two other independent witnesses who proved the case of the landlord. The case of Krishna Kant Pandey (supra) supports the contention of landlord that even if plaintiff is not examined as witness, no adverse inference can be drawn. The case of Krishna Kant Pandey (supra) supports the contention of landlord that even if plaintiff is not examined as witness, no adverse inference can be drawn. The case of Gopal Krishnaji Ketkar (supra) and Devji Shivji (supra) relied on behalf of the tenant is of no help to' him. The ratio of these cases is that it is open to a party to examine the witnesses which it thinks proper and if the other party is dissatisfied, he can move the court; and if any evidence is not produced in spite of order of the court, adverse inference can be drawn, but that is not the position in this case. 13. Further, in the present case, it has come in evidence that the earning from the business of waste newspapers run in one shop by the landlord, is insufficient for the maintenance of the joint family of three married brothers having children, and therefore, the adjacent shop-the suit premises is suitable and is required by Pawan for starting a business. It has also come in evidence that they have got no other suitable place available to satisfy their requirement except the suit premises, located in the business area. 14. Regarding partial eviction it has been proved that it will not satisfy the need of landlord/tenant as the suit premises is only 8 ¼ ' x 12 ¼ '. Moreover, it has been held in paragraph 12 of the Division Bench judgment reported in 1985 PLJR 390 , Mrs. Veena Rani vs. Mrs. Ishrati Amanullah that the power to pass order of partial eviction cannot be exercised in a manner as if the court is to partition the building in question between two co-sharers. 15. In the result, I do not find any merit in this civil revision application; which is accordingly dismissed; and the impugned judgment and decree is affirmed. The tenants are directed to vacate the suit premises within two months, from today, failing which the landlords will be entitled to get the suit premises vacated through the process of the Court.