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2013 DIGILAW 328 (PAT)

Asha Devi v. Shyam Sunder Tibrewal

2013-03-11

JYOTI SARAN

body2013
ORDER This Civil Revision application under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the ‘Act’) is directed against the judgment and order dated 30.12.2010 passed by learned Munsif, Lakhisarai in Title Eviction Suit No. 1 of 2006, whereby the learned court below while decreeing the suit has directed the petitioner to vacate the premises within two months, failing which the same would be vacated through the process of the court. I.A. No. 3041 of 2012 2. This interlocutory application has been filed for condonation of delay in filing the revision application. It is stated that as in the opinion of the petitioner the learned trial court had followed the procedure as applicable to a general suit and not the special procedure provided under Section 14 of the Act, hence the petitioner on legal advise filed a Title Eviction Appeal No. 1 of 2011 under Section 96 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) and the learned appellate court by order dated 12.7.2011 dismissed the appeal as not maintainable. The petitioner again under the advise of his counsel preferred a Civil Revision against the order passed in appeal giving rise to C.R. No. 141 of 2011 and which again was dismissed vide order dated 16.04.2012 on grounds of maintainability. It is stated that this Court while dismissing the Civil Revision application had given liberty to the petitioner to either prefer a Second Appeal against the judgment and decree of the appellate court or file Revision under Section 14(8) of the Act against the judgment and order passed in the Eviction Suit. It is stated that following the liberty granted by this Court in the Civil Revision aforementioned that the petitioner chose to file the present Civil Revision and which has occasioned in delay in filing the present Civil Revision application. It is stated that as the petitioner was diligently contesting the matter hence the delay which has resulted in filing the present application may be condoned. 3. The prayer has been contested by Mr. Najmul Hoda, learned counsel appearing for the decree holder-opposite parties who has stated that merely because the petitioner claims pursuing other remedies, cannot be a ground for condonation of delay. 3. The prayer has been contested by Mr. Najmul Hoda, learned counsel appearing for the decree holder-opposite parties who has stated that merely because the petitioner claims pursuing other remedies, cannot be a ground for condonation of delay. It is further stated that the Act in question being a special Act, the provisions of the Limitation Act would not apply and thus the application filed under Section 5 of the Limitation Act should be rejected. 4. Mr. Hoda, in support of his submission has relied upon the following judgments of this Court:– (i) 1986 PLJR 414 (Pt. B.N. Choubey vs. Member of Bhoodan Committee) (i) 1999 (1) PLJR 60 (B.S.E.B. vs. Baxi S.R.P. Sinha) 5. With reference to the judgments taken note of hereinabove it was submitted that it has been held that limitation prescribed under special enactments cannot be extended by taking recourse to the provisions of the Limitation Act. 6. I have heard learned counsel appearing on behalf of the parties on the issue of limitation and have perused the materials on record. There is no gainsaying that this Civil Revision application has been filed after almost one year and eight months of the impugned judgment and order dated 30.12.2010. Considering this aspect in isolation definitely the delay is enormous but it has to considered against the explanation given by the petitioner. The petitioner has admitted that he initially questioned the judgment and order impugned by filing Title Appeal No. 1 of 2011 which was dismissed on 12.07.2011 as not maintainable and immediately whereafter the petitioner questioned the appellate verdict in Civil Revision No. 141 of 2011 which again stood dismissed on 16.04.2012 on same grounds and whereafter the present Revision has been preferred. 7. It is not a case where the petitioner was sitting idle and allowing time to lapse. On the contrary the petitioner on the legal advise received was honestly pursuing his remedy although it is another fact that it was not before the correct forum and as a consequence his endeavour before the appellate court and before this Court stood negated. 8. Mr. Hoda is not correct when he submits that the provisions of the Limitation Act would not apply to cases arising under the Act, being special in nature. The issue stands settled by a judgment of this Court reported in 1991(1) PLJR 656 (Bishwanath Pd Jaiswal Vs. Major Rabindra Prasad). 8. Mr. Hoda is not correct when he submits that the provisions of the Limitation Act would not apply to cases arising under the Act, being special in nature. The issue stands settled by a judgment of this Court reported in 1991(1) PLJR 656 (Bishwanath Pd Jaiswal Vs. Major Rabindra Prasad). Even otherwise the very fact that apparently there is no deliberate delay and laches on the part of the petitioner in pursuing his remedy, his doors cannot be shut on the technicalities of limitation. 9. I would do no better than to quote paragraph 13 of the judgment of the Supreme Court reported in (1998) 7 SCC 123 (N. Balakrishnan Vs. M. Krishnamurthy) in this regard. “13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.” 10. For the reasons aforesaid, I am satisfied that the delay in filing the revision application has been suitably explained by the petitioner making out a case for condonation thereof and I hereby condone the delay. I.A. No. 3041 of 2012 stands allowed. 11. I would now advert to the contentions advanced by the parties on the merits of the case and shall be going by the party position as existing before the trial court for the sake of convenience. 12. The suit property is a shop bearing holding no. 110 (part), ward no. I.A. No. 3041 of 2012 stands allowed. 11. I would now advert to the contentions advanced by the parties on the merits of the case and shall be going by the party position as existing before the trial court for the sake of convenience. 12. The suit property is a shop bearing holding no. 110 (part), ward no. 17 situated at Naya Bazar, P.S., P.O. and District-Lakhisarai admeasuring 30 feet in length and 10 and ½ feet in width with total area being 315 sq. feet. The suit in question was filed by the plaintiff-opposite party for evicting the defendant from the suit premises and for restoring the vacant possession thereof to the plaintiff. It is the case of the plaintiff that he is the owner of the shop mentioned at Schedule-1 and requires the same for his personal necessity as he intends to start a business therein. It is further the case of the plaintiff that the defendant defaulted in payment of the rentals with effect from January, 1998 until January, 2006. It is further stated that the cause of action arose on 28.12.2005 when the request of the plaintiff for evicting the premises was avoided by the defendant and who ultimately declined to vacate the same on 15.01.2006 thus necessitating the filing of the suit. The claim of the plaintiff was contested by the defendant on grounds of absence of necessity and absence of locus in the plaintiff to maintain the suit. On the basis of the contentions advanced the learned trial court framed issues of which Issue No. 4 relatable to landlord-tenant relationship and Issue No. 5 relatable to personal necessity would be relevant for the present purpose. 13. The learned court below upon consideration of the evidence adduced and after hearing the arguments advanced on behalf of the parties, has upheld the plea of personal necessity of the plaintiff and has decreed the suit in his favour directing the defendant to vacate the same within a period of 60 days and hence the present application. 14. The defendant deceased during the pendency of the present proceedings and has been substituted by his legal heirs under order dated 23.7.2012 passed in I.A. No. 4331 of 2012. On a preliminary objection raised by Mr. 14. The defendant deceased during the pendency of the present proceedings and has been substituted by his legal heirs under order dated 23.7.2012 passed in I.A. No. 4331 of 2012. On a preliminary objection raised by Mr. Najmul Hoda learned counsel for the plaintiff on the substitution of the sole defendant with reference to the definition of the term ‘tenant’ provided under Section 2(h) of the Act, the matter was heard and orders reserved on 5.11.2012. It was with reference to a judgment of the Supreme Court reported in AIR 1978 SC 955 (Ganpat Ladha Vs. Sashikant Vishnu Shinde) contended by Mr. Hoda that there cannot be an automatic substitution of the legal heirs in a matter concerning commercial space and the Act under Section 2(h) does not permit substitution in cases of tenancy in commercial spaces. On the strength of the judgment rendered in the case of Ganpat (supra) it was submitted that consequent upon the death of the original tenant, the legal heirs cannot pursue the proceedings considering the nature of tenancy. After considering the rival contentions on this issue, this Court by a detailed order passed on 20.02.2013 has disposed of the objection and while appreciating the issue raised by Mr. Hoda, I have held that unless the legal heirs of a deceased tenant of a commercial space is able to demonstrate that he was residing with the deceased tenant at the time of his death and was also engaged in the business along with the deceased, the provision of Section 2(h) would not be applicable and such legal heirs of a deceased tenant cannot seek substitution. The detailed order passed on 20.02.2013 on this aspect shall form part of the present order. 15. Following the observations made in the order dated 20.02.2013, a supplementary affidavit has been filed by the legal heirs of the deceased tenant-defendant in which it is stated that the only son of the deceased who is the substituted petitioner no. 2, namely, Kanhaiya Prasad was assisting his father in the business. It is further stated that since the original tenant-defendant had become seriously ill during the proceedings in the court below, his son, the petitioner no. 2 had taken over the business and has continued therefrom. The statement made in the supplementary affidavit regarding continuation of the business by the petitioner no. It is further stated that since the original tenant-defendant had become seriously ill during the proceedings in the court below, his son, the petitioner no. 2 had taken over the business and has continued therefrom. The statement made in the supplementary affidavit regarding continuation of the business by the petitioner no. 2 has not been contested by the decree-holders and thus the case of the petitioner no. 2 would stand covered by the exception carved out in the pronouncement of the Supreme Court reported in AIR 1978 SC 955 (Ganpat Ladha Vs. Sashikant Vishnu Shinde) as held by me in the order passed on 20.02.2013. 16. Mr. Rudal Prasad appearing for the defendant-petitioner has questioned the judgment and order impugned on twin issues. It is firstly stated that the plea of personal necessity has not been correctly appreciated by the learned court below and in fact the plea made by the plaintiff is not bona fide. It is next submitted that a plea of personal necessity is not available to every person fitting the definition of landlord rather for a landlord to maintain a suit of eviction on grounds of personal necessity, he has to be an owner and not a rent collector. Mr. Prasad with reference to the definition of landlord provided under Section 2(f) of the Act has submitted that although the definition of the ‘landlord’ is very exhaustive and includes persons other than the title holder but when made applicable to the provisions of Section 11(1) (c ) of the Act which enables a landlord to maintain a suit for eviction arising from personal necessity, it shuts the door for others and is only open to the title holder and none else. Mr. Prasad has referred to the Explanation provided under Section 11(1) (c ) of the Act in support of his submission. Relying upon a Supreme Court judgment reported in AIR 1981 SC 1113 (M.M. Quasim Vs. Manohar Lal), it is with reference to paragraph 14 of the judgment submitted that this issue stands concluded. 17. Mr. Prasad, with reference to the deposition of the plaintiff present at Annexure-2 series submitted that the plaintiff himself has admitted that he is not the title holder nor he has got any authorization from the title holder to maintain the suit on grounds of personal necessity. 17. Mr. Prasad, with reference to the deposition of the plaintiff present at Annexure-2 series submitted that the plaintiff himself has admitted that he is not the title holder nor he has got any authorization from the title holder to maintain the suit on grounds of personal necessity. With reference to the evidence given by PW 5 who is a Revenue Officer, it is submitted that the Jamabandi of the suit premises continues to run in the name of Chhedi Lal, the owner of the premises and under whom the original defendant had acquired tenancy. It is submitted that neither the plaintiff has examined any of the heirs of the owner of the property nor has brought on record any authorization in support thereof. In the light of the submissions taken note of hereinabove it is submitted that the learned trial court has completely misdirected itself in decreeing the suit without appreciating that the suit, on the grounds of personal necessity, in absence of any documents supporting ownership by the plaintiff, was not maintainable and especially when the defendant had questioned his title at the very outset. 18. The argument of Mr. Prasad has been contested by Mr. Hoda who has relied upon the statement made in the plaint in support of the stand of the plaintiff on the issue of personal necessity. Responding to the argument on the issue of ownership, it is argued on the strength of the judicial pronouncement reported in 2007(1) PLJR 180 (Md. Ainul Haque Vs. Ashish Kumar) that a tenant cannot be allowed to question the title of the landlord. It is submitted that the defendant had all along recognized the plaintiff as a landlord and has referred to him as such in the proceedings before the House Controller and the superior statutory authority in the matter pertaining to fixation of rent. It is stated that the defendant had even acknowledged his tenancy under the plaintiff and thus he cannot revert back from that position to question the very status of the plaintiff. It is stated that the evidence led by the plaintiff sufficiently demonstrated that the defendant was a tenant under the plaintiff. It is stated that the defendant had even acknowledged his tenancy under the plaintiff and thus he cannot revert back from that position to question the very status of the plaintiff. It is stated that the evidence led by the plaintiff sufficiently demonstrated that the defendant was a tenant under the plaintiff. It is thus submitted that once the landlord-tenant relationship is established and the petitioner has accepted tenancy in the premises with the plaintiff requiring the premises for starting a business, the accompanying factors are sufficient for a decree in his favour and the learned court below having appreciated the personal necessity of the petitioner in the backdrop of the evidence collected, the judgment and order passed does not require interference. 19. I have heard learned counsel for the parties and have perused the materials on record. It is now well settled that a plea of personal necessity made by a landlord should reflect his bona fide requirement and should not be a pretext for seeking eviction of a tenant with a sole intention of a replacement. The suit in question has been filed raising a plea of personal necessity on grounds that the plaintiff intends to start a business. It is a different matter that no details of such business has been mentioned by the petitioner but then there is no such requirement also except that the intent shown should not be a mala fide design for seeking eviction. Having observed as such, it is to be seen whether the plaintiff had made out a case of personal necessity and/or whether the plea is at all available to the petitioner as contested by the defendants. The evidence of PW 5, Vijay Kumar who is a Revenue Officer shows that the Jamabandi of the property continues to be in the name of Chhedi Lal, son of Gulab Rai and is so entered in Register-2. The plaintiff is not a legal heir to the said Chhedi Lal and in fact in his deposition the plaintiff has admitted in paragraph-5 that he has not obtained any will, gift deed or power of attorney from Chhedi Lal or the wife of Chhedi Lal or their daughters. On the other hand, the defendant has, in his examination-in-chief, mentioned that the tenancy had been acquired by his father from Chhedi Lal and has continued since 60 to 65 years. On the other hand, the defendant has, in his examination-in-chief, mentioned that the tenancy had been acquired by his father from Chhedi Lal and has continued since 60 to 65 years. The name of Chhedi Lal continues to run in the Jamabandi maintained in the revenue office. Although Chhedi Lal is survived by his wife and two daughters, namely, Rama Devi, wife of Hariom Lat and Bhama Devi, wife of Shyam Sundar Jain but neither the plaintiff could bring on record any will executed by Chhedi Lal in his favour or a gift deed in respect of the suit property or any power of attorney from the legal heirs of the owner of the property Chhedi Lal, to maintain the suit on the plea of personal necessity. The judgment relied upon by Mr. Prasad in the case of M.M. Quasim Vs. Manohar Lal (supra) is a complete answer to the issue raised before this Court and puts an end to all speculation rendering the suit itself not maintainable. 20. I am tempted to quote paragraph-14 of the judgment which has strong bearing to the issue raised. “14. The expression ‘landlord’ has been defined in S. 2(d) of the Rent Act which reads as under: “landlord” includes the persons who for the time being is receiving, or is entitled to receive, the rent of a building whether on his own account or on behalf of another, or on account or on behalf or for the benefit, of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.” The inclusive definition is couched in very wide language. However, this wide amplitude of the expression has been cut down by the explanation appended to sub-cl. (c ) of sub-sec. (1) of S. 11 which reads as under. “11. Eviction of tenants: (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 and to those of Section 12, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:- ………….. (c ) Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord; Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall thenceforth constitute the building within the meaning of cl. (aa) of Section 2, and the rent so fixed shall be deemed to be the fair rent fixed under Section 5; Explanation: In this clause the word “landlord” shall not include an agent referred to in clause (d) of S. 2.” Therefore, while taking advantage of the enabling provision enacted in S. 11 (i) (c), the person claiming possession on the ground of his reasonable requirement of the leased building must show that he is a landlord in the sense that he is owner of the building and has a right to occupy the same in his own right. A mere rent collector, though may be included in the expression landlord in its wide amplitude, cannot be treated as a landlord for the purposes of S. 11 (1) (c). This becomes manifestly clear from the explanation appended to the sub-section. By restricting the meaning of expression landlord for the purpose of Section 11 (1) (c), the legislature manifested its intention namely that that landlord alone can seek eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself and exclude any one holding a title lesser than his own. Such landlord who is an owner and who would have a right to occupy the building in his own right, can seek possession for his own use. The latter part of the section envisages a situation where the landlord is holding the building for the benefit of some other person but in that case landlord can seek to evict tenant not for his personal use but for the personal requirement of that person for whose benefit he holds the building. The latter part of the section envisages a situation where the landlord is holding the building for the benefit of some other person but in that case landlord can seek to evict tenant not for his personal use but for the personal requirement of that person for whose benefit he holds the building. The second clause contemplates a situation of trustees and cestui que trust but when the case is governed by the first part of sub cl. (c ) of sub-section (1) of S. 11, the person claiming possession for personal requirement must be such a landlord who wants possession for his own occupation and this would imply that he must be a person who has a right to remain in occupation against the whole world and not someone who has no subsisting interest in the property and is merely a rent collector such as an agent, executor, administrator or a receiver of the property. For the purposes of S. 11 (1) (c ) the expression landlord could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession of the building to the exclusion of everyone else. It is such a person who can seek to evict the tenant on the ground that he requires possession in good faith for his own occupation. A rent collector or an agent is not entitled to occupy the house in his own right. Even if such a person be a lessor and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict the tenant on the ground that he wants to personally occupy the house. He cannot claim such a right against the real owner and as a necessary corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for his own occupation. That can be the only reasonable interpretation one can put on the ingredients of sub-clause (c ) of Section 11 (1) which reads: “Where the building is reasonably and in good faith required by the landlord for his own occupation…….”. That can be the only reasonable interpretation one can put on the ingredients of sub-clause (c ) of Section 11 (1) which reads: “Where the building is reasonably and in good faith required by the landlord for his own occupation…….”. Assuming that the expression ‘landlord’ has to be understood with the same connotation as is spelt out by the definition clause, even a rent collector or a receiver of the property appointed by the Court in bankruptcy proceedings would be able to evict the tenant alleging that he wants the building for his own occupation, a right which he could not have claimed against the real owner. Therefore, the explanation to clause (c) which cuts down the wide amplitude of the expression ‘landlord’ would unmistakably show that for the purposes of clause (c) such landlord who in the sense in which the word ‘owner’ is understood can claim as of right to the exclusion of everyone, to occupy the house, would be entitled to evict the tenant for his own occupation.” (Emphasis is mine) 21. The opinion expressed in the judgment of the Supreme Court is context with the 1947 Act but the definition of the term ‘landlord’ and the provisions of 11(1) (c) as found in the 1947 Act is pari materia with the expressions as found in the 1981 Act. 22. Despite serious efforts of Mr. Hoda appearing for the decree holder questioning this contest on grounds of limitation, on locus of the legal heirs to continue the quest, on default and ultimately on merits, he could not salvage the situation for the plaintiff on the challenge thrown by the defendant questioning the very locus of the plaintiff to maintain the suit since no evidence was led by the plaintiff in the court below to demonstrate either that he was the owner of the property or that he had the authority to maintain the suit on behalf of the owners / legal heirs of the title holder. The verdict of the Supreme Court was passed in context with the Bihar Act and is very clear on the issue that it is only and solely the owner of a property who can maintain a suit for eviction on grounds of personal necessity under Section 11 (1) (c) of the Act and noneelse. The verdict of the Supreme Court was passed in context with the Bihar Act and is very clear on the issue that it is only and solely the owner of a property who can maintain a suit for eviction on grounds of personal necessity under Section 11 (1) (c) of the Act and noneelse. The judgment and order under challenge in the present application in that context suffers from serious infirmity inasmuch as despite specific plea being raised by the defendant questioning the locus of the plaintiff to maintain the suit in absence of title, the learned court below has misdirected itself while rejecting this plea on grounds that a tenant cannot question the title of the landlord. It is true that a tenant cannot question the title of a landlord but before that the landlord has to establish his locus to maintain a suit. In cases of eviction based on grounds other than those found under Section 11(1) (c ), perhaps this aspect would not be so relevant but insofar as suits based upon grounds of personal necessity is concerned, the issue of locus becomes very relevant and in view of the judgment rendered in the case of M.M. Quasim Vs. Manohar Lal (supra), the issue remains no more res integra. The obvious conclusion would be that the plaintiff in absence of documents supporting his title to the suit property or authorisation from the legal heirs of the title holder, had no locus to maintain the suit on the plea of personal necessity covered under the provision of Section 11(1)(c) of the Act. 23. For the reasons aforementioned, the judgment and order of eviction passed in Eviction Suit No. 1 of 2006 is contrary to law and thus cannot be upheld and is accordingly set aside. This Civil Revision application is allowed but in the circumstances without any order as to costs. 24. The order aforementioned, however, shall not preclude the plaintiff from taking recourse to such other remedies as may be available to him in law.