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2013 DIGILAW 514 (PAT)

Anil Kumar Ram @ Anil Ram v. Pares Nath Das

2013-04-17

JYOTI SARAN

body2013
ORAL ORDER Heard Mr. Amresh Kumar Verma, learned counsel appearing on behalf of the defendant-petitioner and Mr. Pramod Manbansh, learned counsel appearing for the plaintiff-opposite party no.1. 2. This civil revision application under section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’) is directed against the judgment and order dated 22.11.2011passed by the learned Civil Judge, Junior Division-II, Samastipur in Eviction Suit No.04 of 2008, whereby the learned trial court has been pleased to order for eviction of the defendant who is petitioner before this Court requiring him to vacate the suit premise within a period of sixty days from the date of the judgment, failing which the plaintiff would be entitled to take possession of the same through the process of the Court. 3. The eviction suit in question was instituted by the plaintiff-opposite party no.1 for a decree of eviction of the defendant-petitioner from the suit premise, which is a shop situated in Ward No.8 (old), 14 (new), Mauza- Maghardahi, Holding No.245 AC Pant having an area of 16’ east-west and 10’.9” north-south. The shop belongs to the plaintiff and who inducted the defendant as a tenant in the year 1984. The defendant is running a shoe store in the said shop. It is stated that initially the tenancy was under a Kirayanama dated 15.12.1999 for a period of 11 months but the defendant despite lapse of the period stipulated in Kirayanama continued in tenancy. The plaintiff with a view to settle his only son, namely, Sudipto Das, who is an educated unemployed requested the defendant to vacate the shop in January, 2008. It is the case of the plaintiff that the defendant after giving assurance initially stopped making payment of rent and thereafter refused to vacate the same and hence the suit in question was instituted. 4. The shop in question was given in tenancy to the father of the present petitioner, namely, Ram Dev Ram who deceased during the pendency of the suit and has been substituted by the present petitioner and opposite party nos.2 to 6. The original defendant Ram Dev Ram appeared in the suit in response to the summons and after seeking leave in terms of section 14(4) of the Act filed written statement contesting the plea of personal necessity and bona-fide requirement set out by the plaintiff for maintaining the suit. The original defendant Ram Dev Ram appeared in the suit in response to the summons and after seeking leave in terms of section 14(4) of the Act filed written statement contesting the plea of personal necessity and bona-fide requirement set out by the plaintiff for maintaining the suit. On the basis of rival pleadings the issues were framed. Of the issues so framed, issue nos.3 and 4 relatable to bona-fide requirement of the plaintiff to maintain the suit on grounds of personal necessity would be relevant for the matter in contest. The learned trial court having considered the submissions of the plaintiff supporting his plea of bona-fide requirement and personal necessity for the settlement of his only son who was sitting unemployed and in absence of any evidence led by the defendant to prove to the contrary, decreed the suit in favour of the plaintiff and hence the present civil revision application. 5. Mr. Amresh Kumar Verma, learned counsel has appeared on behalf of the defendant-petitioner while the plaintiff-opposite party no.1 has been represented by Mr. Pramod Manbansh. Mr. Verma reiterating the submissions made by the defendant in the written statement has tried to contest the plea of bona-fide requirement of the plaintiff to maintain the suit, inter alia, on grounds that the purpose for which the plaintiff is seeking eviction i.e. for settlement of his son who wants to open a coaching centre in the shop, is a mere pretext for eviction inasmuch as the place is neither suitable for running a coaching centre nor the size of the shop is such that it can be termed suitable for the said purpose. He has further submitted that the plaintiff has himself deposed that his son is engaged in taking tuitions and thus prima-facie there is no need for the shop inasmuch as the son cannot be said to be sitting idle. He further submits that initially the father of the present petitioner was inducted as a tenant in the shop in the year 1984 and since after his death the petitioner has been continuing in the said shop and thus his displacement all of a sudden would seriously prejudice his source of livelihood. Mr. He further submits that initially the father of the present petitioner was inducted as a tenant in the shop in the year 1984 and since after his death the petitioner has been continuing in the said shop and thus his displacement all of a sudden would seriously prejudice his source of livelihood. Mr. Verma also questioned the judgment and order impugned on grounds of failure of the learned trial court to consider the issue of partial eviction as mandated under the proviso to section 11(1) (c) of the Act. In support of his submission Mr. Verma has relied upon a Bench decision of this Court reported in 2008(1) PLJR 213 : 2008(2) BBCJ 111 (Shiv Dayal Taneja vs. Vimla Devi). 6. The arguments of Mr. Verma has been contested by Mr. Pramod Manbansh, learned counsel appearing for the plaintiff-opposite party no.1 who while supporting the findings of the judgment and order of the learned trial court has stated that the needs and the requirement of the plaintiff would not be more bona-fide inasmuch as it is for the purpose of settlement of his only son and that the defendant has himself deposed in the suit that in absence of proper place, his son has to go to different houses for tuitions. On the issue of partial eviction it is stated that in absence of any pleading made by the defendant on this issue and in absence of any evidence led by them during the course of trial, considering the size of the shop and the purpose for which the necessity has been set out, the absence of consideration by the learned trial court on the issue would not render the judgment and order bad in law. Mr. Manbansh in support of his submission has relied upon the following judgments of this Court: (i) 2010 (3) PLJR 483 (Chadradeep Kumar vs. Gatrumal Kanodia) (ii) 2010 (4) PLJR 553 (The Director of National Cadet Corps vs. Smt. Ram Piari Devi). 7. On the strength of the judgments taken note of it was submitted that whereas it is the specific case of the plaintiff in paragraph 11 of the plaint that he required the entire premises for the purpose of opening a coaching centre, the averments have neither been denied by the defendant in the written statement nor any pleading has been made by the defendant differing therefrom. 8. 8. I have heard learned counsel for the parties and have perused the materials on record. The suit in question is based upon a plea of personal necessity arising from the bona-fide requirement of the plaintiff for the suit shop for settlement of his son. The facts are not in dispute and the tenancy is admitted. In so far as the plea of bona-fide requirement for the shop is concerned, no evidence has been led by the defendant to demonstrate whether the plaintiff has any alternative arrangement for settlement of his son. It has also come on record in the evidence and admitted by the defendant in his evidence that the son of the petitioner has to visit different houses for taking tuitions and in this background the need for the shop could not be more bona-fide for the purpose of opening a coaching centre which would facilitate the son in the vocation. The said sole circumstance is sufficient to affirm the plea of personal necessity and bona-fide requirement of the plaintiff of the suit shop. 9. The issue of partial eviction is required to be considered under the proviso to section 11(1) (c) of the Act. Perusal of the judgment impugned manifests that although a plea specifically has been taken by the plaintiff that he would require the complete shop, meaning thereby his needs would not be satisfied by partial eviction but no such issue has been framed nor any such consideration finds mention in the findings recorded by the learned trial court. It is by now well settled that no sooner a plea based on personal necessity is raised before the trial court seeking eviction of a tenant, the court would be under an obligation to record a satisfaction, whether or not the needs of the plaintiff could be satisfied by partial eviction of the tenant. In so far as the present case is concerned, no doubt a plea has been taken by the plaintiff that he requires the entire premises and which fact has also not been controverted by the defendant nor any evidence has been led on this issue but then the requirement of the statute is that a consideration as to the fulfillment of the needs of the plaintiff by partial eviction, should be present in the judgment and order. This consideration is apparently missing in the judgment and order impugned. 10. This consideration is apparently missing in the judgment and order impugned. 10. This Court thus in the circumstances set forth hereinabove finding no jurisdictional error or legal infirmity on the findings recorded by the learned trial court in so far as the issue of bona-fide requirement and personal necessity is concerned and while upholding the judgment and decree in question on all other issues, remits the matter to the learned trial court of Civil Judge, Junior Division-II, Samastipur for recording a finding on the issue of partial eviction after due opportunity to the contesting parties in accordance with law. As the suit is of the year 2008 and the parties are in attendance before this Court, the recording of a finding on this issue of partial eviction should be carried out expeditiously and preferably within a period of one month from the date of receipt/production of a copy of this order. 11. This civil revision application is disposed of with the direction aforesaid. 12. Let the records of Title Eviction Suit No.04 of 2008 received in this Court be returned to the court below forthwith in a sealed cover.