Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1466 (PAT)

Anil Kumar v. Ram Autar Modi

2013-12-17

MUNGESHWAR SAHOO

body2013
JUDGMENT : MUNGESHWAR SAHOO, J.:–The plaintiffs have filed this Second Appeal against the Judgment of reversal passed by the lower appellate Court in Eviction Appeal No.4 of 1995. 2. The plaintiffs appellants field eviction suit No.51 of 1988 for the eviction of the defendant alleging that Ram Chandra Prasad, husband of the plaintiff, was the owner of the suit premises. The defendant was inducted as tenant in the suit premises mentioned in Schedule ‘B’ of the plaint and an agreement was executed on 30.05.1967 on a monthly rent of Rs.175/-. The said tenancy was created for a period of 15 years from Ist February, 1968 without any provision of extension of tenancy. The period of lease deed expired on 01.05.1983 and thereafter, there was oral lease as monthly rent was enhanced to Rs.550/-. The defendant used to pay the rent against the grant of rent receipt. The plaintiff is residing in the first floor of the suit premises along with her family members and the area is very small, therefore, the plaintiff requires the suit premises for residential purpose also. The two sons of the plaintiff have passed matriculation and are unemployed. They have enrolled themselves in employment exchange but still, they have not got any job. Therefore, the plaintiff want to settle the two sons in business. The plaintiff’s husband is also a heart patient and had blood pressure who is an employee of L.I.C., Muzafarpur. The plaintiff desire that she will settle her two sons in business of hardware and general stores respectively. Because her husband is heart patient, therefore, he desires that he will live in the ground floor. 3. The defendant filed written statement contending that the defendant was inducted as tenant by the father of the plaintiff husband on 01.11.1956. He admitted the execution of the agreement. Since the plaintiff husband was in need of house, the defendant advanced him Rs.12,500/- and the plaintiff husband Ram Chandra constructed multi storied building wherein they are residing. The agreement dated 30.05.1967 is not the agreement of tenancy rather it is the agreement regarding adjustment of the advance amount. The tenancy is month to month tenancy. Only the ground floor under tenancy of this defendant which is not at all fit for evidence. The sons of plaintiff are not sitting idle rather they are carrying business on tea leaf and for that they have sufficient accommodation. The tenancy is month to month tenancy. Only the ground floor under tenancy of this defendant which is not at all fit for evidence. The sons of plaintiff are not sitting idle rather they are carrying business on tea leaf and for that they have sufficient accommodation. Additional written statement was filed stating that the husband of plaintiff No.1, namely, Ram Chandra Prasad died on 5.6.1992 and Anil Kumar son of plaintiff joined in service in L.I.C., therefore, the need for occupation of the suit premises on the ground of husband of plaintiff No.1 and settlements of son Anil in the business ceased to exist. 4. The trial Court at paragraph 19 recorded the finding that AJit Kumar is jobless and he requires the suit premises for opening a general store. Thereafter, considering the partial eviction, the trial Court at paragraph 21 held that the suit premises is very big wherein the defendant is running a sweet meat shop and a general store and the plaintiff desire to open a general store, therefore, partial eviction will satisfy the need of the plaintiff. Accordingly, decreed the suit partially. 5. On appeal, the lower appellate Court modified the extent of partial eviction only and held that leaving aside the stare case in the front portion the suit premises be divided half and half by putting a wall and accordingly dismissed the plaintiff’s appeal. 6. On 16.08.2005, the following two substantial question of law were formulated :— (i) Whether the Courts below have acted illegally in passing the order of partial eviction when admittedly the frontage of suit premises is only 10 feet and after partition two shops having frontage of 5 feet each will be of no use. (ii) Whether the Court below failed to see that personal necessity of plaintiffs-appellants cannot be satisfied by partial eviction. 7. The learned counsel, Mr. Najmul Hoda appearing on behalf of the appellant submitted that while dealing with the partial eviction, the Court is required to see that what is the extent of requirement of the plaintiff and thereafter shall examine as to whether if partial decree is granted the need of the plaintiff will be substantially satisfied or not. The Court cannot partition the suit premises in the garb of partial eviction without considering the need of the plaintiff whether it will be satisfied by partial eviction. The Court cannot partition the suit premises in the garb of partial eviction without considering the need of the plaintiff whether it will be satisfied by partial eviction. In the present case, the Courts below both have held that by partial eviction, the plaintiff’s need will be satisfied without practically examining the fact that the suit premises measures 13 feet in width including stair case of 3 feet in the frontage and it is 32 feet in length. Now, therefore, if it is divided as has been directed by both the Courts below, the frontage will be only 5 feet. In other words, the portion which will come in possession of the plaintiff will be 5 feet width x 32 feet long. Can it be said that a general store can be opened in this portion? According to the learned counsel, it is not possible in these days for opening a general store. Therefore, even after taking possession of half part, the plaintiff could not start the business still today because it is useless for him. The learned counsel submitted that, therefore, the Judgments and Decree of both the Courts below are liable to be set aside and the plaintiff’s suit for eviction be decreed in toto. 8. On the other hand, the learned senior counsel, Mr. Puskar Narain Shahi appearing on behalf of the respondent submitted that originally the plaintiff filed the suit for personal necessity for husband Ram Chandra and two sons but subsequently the husband died and one son got the job in L.I.C., therefore, there is no question of requirement of suit premises for the said two persons. Now, in view of the above fact only requirement of the plaintiff is opening of one general store for one son. Both the Courts below held that the defendant is running two shops in the suit premises. One is sweet meat shop and the other is general store. If defendant is running two shops then why the plaintiff will not be able to run single general store in the half portion. Considering this aspect of the matter, both the Courts below have decreed the plaintiff’s suit granting partial eviction. Therefore, the learned counsel submitted that the Second Appeal be dismissed. 9. From perusal of the records of the case, it appears that there is no pleading regarding partial eviction either by the plaintiff or by the defendant. Considering this aspect of the matter, both the Courts below have decreed the plaintiff’s suit granting partial eviction. Therefore, the learned counsel submitted that the Second Appeal be dismissed. 9. From perusal of the records of the case, it appears that there is no pleading regarding partial eviction either by the plaintiff or by the defendant. However, it is settled law that the Proviso to Section 11 (1) (C) of the Bihar Building (Lease, Rent and Eviction) Control Act is mandatory. Even if plea of partial eviction is not raised by the tenant, the Court has to consider the said question. It is also settled principle of law that Court at the first instance has to determine the extent of premises reasonably required by the landlord. The Court has to consider the said questions objectively and not on the basis of mere desire or ipse dixit of the landlord to occupy such area as he want. If the requirement of the landlord is determine then the Court has to see as to whether such requirement is reasonable or not and the same would be substantially satisfied by partial eviction or not. 10. In the present case at our hand, from perusal of the Judgment of the Courts below, it appears that the Courts below both presumed that because the defendant is running two shops, therefore, if one shop is given to the plaintiff, it will suffice the need of the plaintiff and, therefore, divided the suit property into two parts. Without examining regarding the fact as to whether it is plausible to run general store in part of the suit premises measuring 5 feet x 32 feet. 11. In the case of Mrs. Veena Rani Vs. Mrs. Ishrati Amanullah 1985 P.L.J.R. 390 a Division Bench of this Court has held that ‘the reasonable requirement cannot be interpreted to mean that the landlord must be dire need of house. 11. In the case of Mrs. Veena Rani Vs. Mrs. Ishrati Amanullah 1985 P.L.J.R. 390 a Division Bench of this Court has held that ‘the reasonable requirement cannot be interpreted to mean that the landlord must be dire need of house. ‘Reasonable requirements’ postulate that there must be an element of need as opposed to a mere desire or wish, but it was pointed out that the connotation of term “need” or ‘requirement’ should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction.’ Considering partial eviction, the Division Bench held that ‘it need not be pointed out that before a decree for eviction for part of the premises in question can be passed, the Court on the materials must be satisfied that the landlord and tenant both can conveniently occupy the same house as two units, that power cannot be exercised in a manner as if the Court has to partition the building in question between two co-sharers.’ 12. In view of the above Division Bench decision, the Court has to see the fact about the convenience of the plaintiff as well as the defendant while granting partial eviction. In the present case, the reasoning of the Courts is that the defendant was running two shops, therefore, the plaintiff can run one shop in half portion. While considering this aspect, none of the Courts below considered as to whether both parties can conveniently occupy the suit premises as two units. Because the defendant was running two shops whether the plaintiff can also be insisted to run his business in such an area measuring 5 feet in the frontage and 32 feet in length. 13. Can it be said that it is the legislative intent to compel the plaintiff to carry on his business at the dictation of the defendant in a small area? 14. In the case of Sachendra Kumar Singh Vs. Vinod Nandan Sinha 2007 (2) P.L.J.R. 488 , it has been held at paragraph 22 as follows :— “22. In my opinion, subsequent event like the death of the landlord if taken note of at every stage till the decree attains finality there will be no end to litigations which will lead to miscarriage of justice in many cases. Vinod Nandan Sinha 2007 (2) P.L.J.R. 488 , it has been held at paragraph 22 as follows :— “22. In my opinion, subsequent event like the death of the landlord if taken note of at every stage till the decree attains finality there will be no end to litigations which will lead to miscarriage of justice in many cases. From the start to the ultimate termini a lis takes several years. It is a malady afflicting the Indian Judicial system. During this long interval many many events are bound to take place in relation to the parties as well as subject matter of the lis and if such subsequent events on account of the malady of the system is submerged with the cause of action, it shall shatter the confidence of the litigant in the judicial system. This view has been succinctly put forth by the Supreme Court in the case of Shakuntala Bai Vs. Narayan Das ( AIR 2004 SC 3484 ) in the very first paragraph of its judgment which reads as follows :— “1. It is a shocking case. A suit for eviction of a tenant was instituted more than 42 years back in March, 1962 for the bona fide need of carrying on business by the owner landlord but his widow and sons are still knocking the doors of Court of justice. During the pendency of the appeal filed by the tenant the landlord died leaving a widow and minor sons but this, the High Court thought, came to the advantage of the tenant, rendering the suit liable for dismissal, little realizing that they also needed some place to carry on business for survival. Such extreme views erode the faith of people in the judicial system prompting them to take recourse to extra judicial methods to recover possession of their property.” 15. It appears that in that case the suit premises was measuring 8 feet x 32 feet. Both the Courts below concurrently held that the partial eviction will not satisfy the need of the plaintiff which was upheld by this High Court. 16. In the present case, the only difference is that the suit premises measures 10 feet x 32 feet excluding stare case. Both the Courts below concurrently held that the partial eviction will not satisfy the need of the plaintiff which was upheld by this High Court. 16. In the present case, the only difference is that the suit premises measures 10 feet x 32 feet excluding stare case. Now, if 8 feet x 32 feet suit premises is not considered suitable for partial eviction on the ground that landlords requirement for opening medicine shop will not satisfy substantially, can it be said if the suit premises is 10 feet and 32 feet, partial eviction will substantially satisfy the need of the landlord for opening a general store? The answer will be no. 17. It appears that without considering all these aspects of the matter, both the Courts below as stated above proceeded to divide the suit premises as if they are dividing the suit premises between two co-sharers without considering as to whether both part can be conveniently occupied by the plaintiff and defendant as two separate units. 18. In the case of Nasirul Haque Vs. Jitendra Nath Dey 1984 P.L.J.R. 79 SC, the Hon’ble Supreme Court has held that while considering Proviso to Section 12 (1) (c) Court has to objectively determine the extent of the premises which the landlord ‘reasonably’ requires at the first instance then it has to apply a test as to whether such requirement as the Court considers reasonable, will be substantially satisfied by ordering partial eviction. This principle has also not been followed in this present case. In this very case, the Hon’ble Supreme Court held that the word “Substantial” is itself a substantial point of law. 19. Therefore, the findings by both the Courts below are not inconformity with the settled proposition of law laid down by the Supreme Court as well as by this Court and both the Courts below have proceed to divide the suit premises as if they are partitioning the same between two co-sharers. Accordingly, the substantial questions of law formulated at the time of admission are answered in favour of the plaintiff appellant. 20. In the result, this Second Appeal is allowed. The impugned Judgment and Decree whereby only partial eviction has been granted is hereby set aside and the plaintiff suit for eviction is decreed in toto. There shall be no order as to cost. ?