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2012 DIGILAW 1554 (PAT)

Chunchun Prasad Singh v. Surendra Prasad Singh

2012-11-08

JYOTI SARAN

body2012
ORDER This Revision application preferred under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 is directed against the judgment and decree dated 12.08.2010 and 26.08.2010 respectively passed in Title (Eviction) Suit No. 6 of 2007, whereby learned Munsif, Katihar has been pleased to decree the suit admitting the plea of personal necessity of the plaintiff-opposite party and directing the defendant-petitioner to deliver the vacant possession of the suit premises described in Schedule-A of the plaint to the plaintiff-opposite party within one month of the date of the order, failing which the decree would be executed through the process of the court. 2. Brief facts of the matter is that the petitioner was inducted as a tenant in a shop owned by the plaintiff-opposite party situated at Municipal Survey Plot No. 136 ‘gha’ and ‘cha’, Municipal Survey Khata No. 38 bearing Municipal Holding No. 213 ‘P’ situated at Mauza Durgapur, Mohalla-Amlatola in the Town and District of Katihar and admeasuring 20ft. x 13 ½ ft. 3. For the sake of convenience, I shall be referring to the position of the parties as occurring at the stage of trial. 4. It is the case of the plaintiff that the shopping complex in which the shop in question is situated belonged to Eqbal Warish, Amir Ali and Hussain Warish. The complex consisted of several shops of which the shops bearing Municipal Survey Plot No. 136 ‘ka’ ‘kha’ ‘gha’ and ‘cha’ was recorded in the name of the ancestors of the aforementioned owners. The defendant was inducted in one of the shops by the erstwhile owner Eqbal Warish on a monthly rental of Rs. 200/-. It is further the case of the plaintiff that the owner Ekbal Warish had another shop situated towards adjoining South and which was taken on a monthly rental by the plaintiff and who had been carrying on his business in the said shop. The plaintiff and his brother Jai Lal Singh jointly purchased the shops in question through three registered sale deeds executed on 05.11.1998, 21.06.1999 and 06.07.1999 after making payment of the consideration amount and whereafter they became the owners of the same. Consequent upon the purchase of the shop in question by the plaintiff and his brother, the rentals of the shop held by the defendant was enhanced from Rs. 200/- to 300/- and thereafter to Rs. Consequent upon the purchase of the shop in question by the plaintiff and his brother, the rentals of the shop held by the defendant was enhanced from Rs. 200/- to 300/- and thereafter to Rs. 400/- which was paid sometimes in cash and sometimes by money order by the defendant to the plaintiff. A mutual partition is said to have taken place on 06.03.2005 and whereafter the plaintiff was allotted the shop in which the defendant was inducted as a tenant as well as the shop premises in which the plaintiff had been carrying on his business together with 6 feet wide passage lying West and whereafter the plaintiff came in exclusive possession over the said property. As the elder son of the plaintiff Rajnish Bharti was required to be settled thus a request was made by the plaintiff to the defendant to vacate the premises but the defendant instead of vacating the premises, filed a petition under Section 20 of the Act for fixation of fair rent. 5. It is in the aforesaid circumstances where the defendant was not willing to vacate the suit premises despite request of the plaintiff who needed the same for his elder son that the suit in question came to be filed on 17.4.2007 seeking a relief of eviction of the defendant no. 1, under Section 14 read with Section 11(1)(c) of the Act giving rise to Title (Eviction) Suit No. 6 of 2007. The defendants appeared and filed their written statement challenging the grounds of personal necessity as invoked by the plaintiff. It is the case of the defendants that the plaintiff alongwith his brother had purchased the suit premises as well as the other shops and thus the story of expansion of the business and induction of the son which is stated to be ground for personal necessity, was not correct. According to the defendant the son of the plaintiff, Rajnish Bharti was already settled in Delhi and carrying on his business. It is further the case of the defendant that they have been making payment of their rent on regular basis and had filed the case before the House Controller not for fixation of a fair rent but for requiring the plaintiffs to issue rent receipts. It is further the case of the defendant that they have been making payment of their rent on regular basis and had filed the case before the House Controller not for fixation of a fair rent but for requiring the plaintiffs to issue rent receipts. The defendants have further contended that the plaintiffs have no bonafide requirement for the suit premises and the plea has been taken solely for eviction of the defendants. It is the case of the defendant that the suit is an outcome of business rivalry as both the parties were engaged in the same business. It is further the case of the defendant that the plaintiffs are owners of a big building situated over an area of four kathas in Mohalla-Lal Kothi in the District of Katihar and thus the story of personal necessity is false and that the defendant would suffer loss of business upon being evicted from the premises. 6. Upon completion of pleadings and upon consideration of the rival contentions the following issues were framed by the trial court:- (i) Is the suit maintainable as it is framed? (ii) Has the plaintiff cause of action for the suit against the defendant? (iii) Is the suit barred by Section-34 of Specific Relief Act? (iv) Is the suit barred by laws of limitation, estoppel, waiver and acquiescence? (v) Is there is relationship of landlord and tenant in between the parties in respect of suit premises? (vi) Is the elder son of the plaintiff, Rajnish Bharti sitting idle and does the plaintiff want to settle him in the business of seeds, pesticides and agricultural equipment in the suit premises? (vii) If the plaintiff requires the suit premises reasonably and in good faith to establish his unemployed son Rajnish Bharti in business there at? (viii) Is the plaintiff entitled to decree for eviction of the defendant from the suit premises? (ix) Is the plaintiff entitled to any relief as prayed for? (x) Will the partial eviction of defendant from the suit premises satisfy the reasonable requirement of plaintiff? 7. Issue Nos. (v) to (ix) were taken up together by the trial court as they were the main issues to be tested in the trial. (ix) Is the plaintiff entitled to any relief as prayed for? (x) Will the partial eviction of defendant from the suit premises satisfy the reasonable requirement of plaintiff? 7. Issue Nos. (v) to (ix) were taken up together by the trial court as they were the main issues to be tested in the trial. The learned trial court upon examination of the oral and documentary evidence led by the parties has come to a finding that the plaintiff had succeeded in proving his case on the issues and which accordingly were decided in favour of the plaintiff and against the defendant. Issue nos. (iii) and (iv) were taken together and as the defendant failed to contest the issue or lead evidence hence it was decided in favour of the plaintiff. Similarly issue nos. (i) & (ii) were taken together and also decided in favour of the plaintiff. The issue of partial eviction was tested as Issue no. (x) and was taken up by the trial court independently and having considered the floor area of the suit premises, the requirement of space of the parties in view of the nature of business and the oral evidence of the parties, the trial court held that the requirement of the parties cannot be satisfied by partial eviction. Having held as such the suit was decreed in favour of the plaintiff and hence the present application. 8. Mr. Raghvendra Kumar Singh, learned counsel appearing on behalf of the defendant-petitioner while questioning the judgment of the trial court has submitted that there was absolute lack of necessity for the plaintiff to maintain the suit which in fact was a ploy to remove the defendant by virtue of the business rivalry as both the plaintiff and defendant were engaged in the same business of seeds, pesticides, agricultural equipment etc. It is submitted that even when the son of the plaintiff was well settled in Delhi and engaged in business, the plaintiff adopted this unfair means to marginalize the defendant from the business. Mr. Singh contended that apart from the suit premises, the plaintiffs have two other shops and a godown and thus the personal necessity of the plaintiff could well be satisfied by the available shops and there was no occasion for eviction of the defendant. Mr. Singh contended that apart from the suit premises, the plaintiffs have two other shops and a godown and thus the personal necessity of the plaintiff could well be satisfied by the available shops and there was no occasion for eviction of the defendant. It was thus submitted that neither there was any bona fide requirement for the plaintiff nor any personal necessity to bring the suit which in fact is a malicious proceedings and merely because the plaintiff are in a superior position that in the garb of settlement of son they by taking a plea of personal necessity, have instituted the eviction suit and have also gained success. 9. Learned counsel for the defendant has relied upon the evidence of P.W. 5 who is the plaintiff himself to submit that there were other shops as well in the building belonging to the plaintiff and which would have satisfied the requirement of personal necessity of the plaintiff. Learned counsel has referred to the evidence of P.W. 1 Sudhakar Jha to submit that the requirements would not be satisfied by partial eviction. He has also referred to the evidence of D.W. 1 Sachchidanand Singh who happens to be the brother of the defendant, D.W. 2 Anil Kumar Singh, D.W. 3 Deepak Kumar Singh, D.W. 4 Ranjan Singh and D.W. 5 who is the defendant himself to demonstrate that there were other shops available in the premises and which could satisfy the requirement of the plaintiff. It is further the submission of learned counsel for the defendant that there is no complaint of default in payment of rent by the defendant. 10. Mr. Singh also with reference to a map of the shopping complex tried to demonstrate that there were a number of shops in the premises and which would satisfy the requirements of the plaintiff without disturbing the possession of the defendant over the disputed shop. 11. The submissions have been contested by Mr. Najeeb Ahmad, learned counsel appearing for the plaintiff who submits that the pleadings of the defendant is completely silent on this score. 11. The submissions have been contested by Mr. Najeeb Ahmad, learned counsel appearing for the plaintiff who submits that the pleadings of the defendant is completely silent on this score. Learned counsel has further submitted that although a submission has been made by learned counsel appearing for the defendant that the son of the plaintiff was well settled in Delhi and that he has only recently come down to Katihar to strengthen the case but the same is neither borne from the pleadings nor the defendant sought any amendment in the written statement and in absence whereof, the same should be rejected. Learned counsel in support of his said submission has relied upon a judgment reported in 2007 (2) PLJR 736 (Vinay Kumar Gupta & Anr. Vs. Ajay Kumar). 12. Mr. Ahmad, learned counsel for the plaintiff has submitted that the defendants have chosen to question the judgment basically on four grounds namely: the findings on personal necessity; the availability of other shops; absence of bona fide requirement and the issue of partial eviction. While responding to the issue of personal necessity, Mr. Ahmad submitted that the very fact that the defendants themselves have admitted that the son of the plaintiff was running a shop adjacent to the suit premises by itself satisfied the contention of the plaintiff that a need was there for a space, to accommodate the son who was running a shop in a small premises. 13. Learned counsel for the plaintiff while referring to paragraph 2 of the deposition of P.W. 1, paragraph 4 and 5 of the deposition of P.W. 4 who is the son himself and the deposition of the plaintiff who has deposed as P.W. 5 with reference to paragraphs 8 and 9, has submitted that the requirement of the shop in question for the settlement of the elder son of the plaintiff Rajnish Bharti is fully explained by the depositions. Contesting the statement of the defendant that the son of the plaintiff was living in Delhi and had shifted to Katihar only recently, learned counsel has referred to the deposition of D.W. 1 who is the brother of the defendant and who in paragraph-10 has stated that the son of the plaintiff was running a shop adjacent to the suit property. While referring to the statement of the D.W. 1 in the course of cross-examination recorded at paragraph-25 it was submitted that the D.W. 1 has admitted that the elder son of the plaintiff was in Katihar since last 7 to 8 years. With reference to the statement made by D.W. 5 who is the defendant himself, in paragraphs 31 and 32 of cross-examination, it is stated that the defendant has admitted that the father and son were living in jointness and the son was assisting the plaintiff in the business and that he did not have any shop of his own. 14. In contest of the submission of the defendant that the plaintiff owned several shops, learned counsel has relied upon the statement of the defendant himself present at paragraph 8 of his deposition to submit that as per the defendant himself, of the 14 shops stated to belong to the plaintiff, six were on rent and the rest were in personal business use. Thus no shop was found to be vacant. It is stated that the defendant in his cross-examination at paragraph 24 had admitted that he was not aware about the partition of the property amongst the brothers and how many shops were allotted to each brother. It was contended that a similar statement has been made by defendant in paragraph 11 of the written statement. With reference to the statement of the D.W. 1 in paragraph 7 of his deposition, of D.W. 4 in paragraph-6 of the deposition, it is stated that even the said witnesses of the defendant do not state that any vacant shops were available. Learned counsel with reference to the deposition of Defendant Witness No. 1 who is the brother of the defendant states that the Defendant Witness in paragraph-7 has admitted that there are five shops in the premises which belongs to the plaintiff and his brothers and is a joint property and is on rent. It is stated that the defendant no. 4 in paragraph 6 of his deposition has also mentioned that apart from the disputed property there were two shops facing North and three shops facing East which were on rent and that the plaintiff also have a godown. 15. Mr. It is stated that the defendant no. 4 in paragraph 6 of his deposition has also mentioned that apart from the disputed property there were two shops facing North and three shops facing East which were on rent and that the plaintiff also have a godown. 15. Mr. Najeeb Ahmad responding to the map has submitted that although the contents of the said map were never proved during the course of trial but even otherwise the son of the plaintiff has denied the possession of the said shop nos. 2, 3, 4, 11, 12, 17 and 18. With reference to the statement made by the plaintiff during the course of cross-examination recorded at paragraph 30 of the deposition it was stated that the plaintiff had specifically denied that he possessed 10 to 12 shops and that the suit was instituted to disrupt the business in the garb of personal requirement. On the issue of partial eviction, learned counsel has again relied upon the statement of the son who deposed as Plaintiff Witness No. 4 and that of the plaintiff to submit that the business requirement to run a shop for selling pesticides, agricultural equipments, seeds etc. would not be satisfied by partial eviction of the defendant. During the course of cross-examination the defendant no. 4 in paragraph-17 has admitted that a space of 20ft. / 15ft. would be required for running a shop dealing in agricultural equipments and seeds. With reference to the statement made by the D.W. 5 who is the defendant himself recorded at paragraph 25 of his cross-examination it is stated that in a similar manner the defendant has admitted that his requirements would not be satisfied if the area of the shop is reduced. It was thus submitted that the issue of partial eviction has been answered by the defendants themselves who admit that any reduction in the area of the shop would not satisfy the business requirements for sale of agricultural equipments, seeds etc. 16. Mr. Raghvendra Kumar Singh, learned counsel for the defendant-petitioner in reply has submitted that the learned trial court has misdirected itself on the issue of partial eviction as also on the alternative options available to the plaintiff for accommodating his son. 17. I have heard learned counsel for the parties and have perused the materials on record. 18. 16. Mr. Raghvendra Kumar Singh, learned counsel for the defendant-petitioner in reply has submitted that the learned trial court has misdirected itself on the issue of partial eviction as also on the alternative options available to the plaintiff for accommodating his son. 17. I have heard learned counsel for the parties and have perused the materials on record. 18. The scope of interference with the judgment and decree of the present nature by the High court in exercise of revisional powers vested under Section 14(8) of the Act stands well settled by a catena of judgments and is no more in contest. The powers exercised under the said provision though are wider than those as can be found under Section 115 of the Code of Civil Procedure but is not akin to the powers vested under an appellate jurisdiction. Thus unless the order under challenge is in violation of the procedure engrafted under Section 14 of the Act or is based on no evidence or on evidence which is inadmissible in law or has been passed upon non-consideration of evidence led by the party concerned, the High Court would not enter into appreciation or re-appreciation of evidence except to ensure that law and the procedure required to be followed under the Act has been consciously applied by the trial court. In other words unless the order under Challenge reflects perversity or any material irregularity by the trial court in following the mandatory procedure provided under the Act, no interference is warranted with the same. Reference in this regard is made to the following judgments: (i) 2002(1) PLJR 144 (SC) (Chandrika Prasad (D) Thr. Lrs. & Anr. Vs. Umesh Kr. Verma & Ors.) (ii) 2003(2) PLJR 345 (Smt. Sushila Devi & Ors. vs. Sri Lakhan Lal Sah & Ors. (iii) 2012 (3) PLJR 144 (Ravi Atal & Anr. Vs. Smt. Ganga Devi). 19. Until such time that the aggrieved revisionist is able to demonstrate that the judgment passed by the trial court falls within either of the categories aforementioned, the High Court would loathe to interfere with the judgment and decree passed by the trial court nor can substitute its views for the view taken by the trial court. 20. 19. Until such time that the aggrieved revisionist is able to demonstrate that the judgment passed by the trial court falls within either of the categories aforementioned, the High Court would loathe to interfere with the judgment and decree passed by the trial court nor can substitute its views for the view taken by the trial court. 20. Having outlined the scope of the revisional jurisdiction it is to be seen whether the conclusion arrived at by the trial court upon appreciation of the oral and documentary evidence led by the parties satisfies the test. Of the issues framed by the trial court as also taken note of by me in this order, the core issues are whether there existed a land lord tenant relationship between the parties; whether the plaintiff had a bonafide requirement and a personal necessity for recovery of possession of the demised premises and whether the requirements of either of the two parties could be satisfied by partial eviction. 21. Perusal of the impugned judgment manifests that issue nos. V to IX being the issues germane to the matter in contest and being inter related, were taken up by the trial court together. The said issues in fact are the core issues of contest. The trial court while referring to the statement made by the defendant in paragraph 6 and 7 of the written statement admitting to the tenancy and of paying regular rent to the plaintiff, has held that the landlord tenant relationship was not in contest. The first obstacle being removed, the all important issue of the bonafide requirement of the plaintiff and his personal necessity was next considered. The trial court has noted the statement made by the plaintiff in paragraph 10 and 11 of the plaint requiring the suit premises for the purpose of settlement of his son Rajnish Bharti who was unemployed and sitting idle and which statement was controverted by the defendant in paragraph 13 of the written statement submitting that the son was gainfully settled in business at Delhi and that under a hidden agenda the plaintiff by way of the suit was trying to remove the defendant from the scene due to business rivalry. The plaintiff who has examined himself as PW 5 as well as his son who has been examined as PW 4 have categorically denied the statement of the defendant that the son was running a business in Delhi and that there was no bonafide requirement by the plaintiff of the suit premises. In fact the trial court has noted that even during the course of cross-examination the said two witnesses have stuck to their stand. The trial court has also noted that five witnesses examined by the defendant were all interested witnesses and that the defendants failed to prove their statement regarding the son of the plaintiff doing flourishing business in Delhi. The trial court taking note of the statement of the defendant (DW 5) who has admitted that the plaintiff’s son Rajnish Bharti was looking after his father’s business observed that it ran counter to the statement made in the written statement. The defendant (DW 5) at paragraph 24 of his cross-examination has admitted to lack of information regarding the number of shops falling in the share of the plaintiff. DW 2 Anil Kumar Singh who is the son-in-law of the defendant and who in paragraph 11 of his cross-examination has stated that there were six shops in the share of the plaintiff and which were in possession of old tenants. He has also stated in paragraph 12 that the son of the plaintiff Rajnish Bharti wanted to open a shop. DW 1 Sachidanand Singh who is the brother of the defendant has admitted at paragraph 25 of his cross-examination of seeing the son of the plaintiff in Katihar since last 7-8 years. It is upon the appreciation of the evidence led by the parties that the learned trial court has come to a conclusion that the claim of bonafide requirement of the plaintiff for the suit premises for the purpose of the settlement of his son Rajnish Bharti also established his personal necessity for the suit premises and that the defendants despite making statements regarding availability of other shops, were not able to establish whether any of the said shops lay vacant. The defendants have admitted that the shop in question is located in a business area and thus no fault can be found in the requirement of the plaintiff for the suit premises in order to settle his unemployed son. The defendants have admitted that the shop in question is located in a business area and thus no fault can be found in the requirement of the plaintiff for the suit premises in order to settle his unemployed son. The deposition of the defendant witnesses taken note of by the trial court on the issue of the bonafide requirement of the plaintiff as also relied upon by learned counsel appearing for the plaintiff-opposite party before this Court, do not leave any room for doubt that the defendants could not demolish the case built up by the plaintiff-opposite party of the bonafide requirement and his personal necessity to the suit premises. 22. Mr. Raghvendra Kumar Singh, learned counsel for the defendant-petitioner had tried very strenuously to contest that with other shops available within the shopping complex, the plaintiff could have accommodated his son in other premises but neither before the trial court any evidence in support of the said contention was led by the defendant nor could the same be established before this Court. Even if any shop as stated by the defendant was vacant, the choice lies entirely on the landlord to choose between the options available suiting his requirement and it would not lie in the mouth of the tenant to force the landlord to look for other options. The right to choose the premise which would suit the personal necessity lies entirely at the discretion of the landlord. This issue stands well settled by the following judgments: (i) 2003(1) PLJR 171 (SC): (Savitri Sahay vs. Sachidanand Prasad) (ii) 2005(3) PLJR 719 (Shri Vinod Kumar Gupta & Anr. vs. Smt. Pushpa Devi & Anr.) 23. The said issue having been drawn in favour of the plaintiff, the only aspect that remains to be seen is whether the requirement of the parties would stand satisfied by partial eviction. The shop in question admeasures 20 feet x 15 feet. It is not in dispute that the defendant was running a shop dealing in agriculture equipments and seeds and for the same purpose, the plaintiff also required the premises. Whether or not the requirement of the two parties could be satisfied by partial eviction stands answered by the statement of the defendant (DW 5) recorded at paragraph 25 of the cross-examination in which he admits that his requirement would not be satisfied if the area of the shop is reduced. Whether or not the requirement of the two parties could be satisfied by partial eviction stands answered by the statement of the defendant (DW 5) recorded at paragraph 25 of the cross-examination in which he admits that his requirement would not be satisfied if the area of the shop is reduced. The said statement by itself answers the issue of partial eviction. 24. In view of the finding recorded on the primary issues arising in the present proceedings, the other issues decided in favour of the plaintiff being formal in nature does not require interference. Apart from the discussion on merits, another relevant aspect of the matter is that the decree stands executed and the possession of the shops in questions stands delivered in favour of the plaintiff. Thus even if the defendant would have been able to succeed in his quest, it would warrant an order of restitution. 25. Having considered the issues in the backdrop of the evidence led by the parties, this Court is of the firm opinion that the judgment and decree in question does not warrant any interference. The Civil Revision application is accordingly dismissed but without any order as to costs. 26. Let the lower court records in connection with Title (Eviction) Suit No. 6 of 2007 received in the proceeding, be returned back to the court below in sealed cover forthwith.