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2013 DIGILAW 607 (PAT)

Dilip Kumar Choubey v. Hema Sah

2013-05-10

JYOTI SARAN

body2013
ORDER 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 28.4.2012 passed by the learned Munsif 2nd, Bhagalpur in Eviction Suit No.3 of 2006, whereby the learned trial court has been pleased to decree the suit in favour of the plaintiff and has directed the defendant, who is the petitioner before this Court, to hand over the vacant possession of the premises within a period of two months from the date of the judgment and order, failing which the same would be carried out through the process of the Court. 2. With the consent of the parties the matter has been taken up with a view to its final disposal at the stage of admission itself. For the purpose of convenience I shall be referring the status of the parties as existing in the court below. 3. The suit in question was filed by the plaintiff seeking eviction on the ground of personal necessity for the settlement of her younger son. The suit property is a shop situated in Mohalla- Khalifabagh, Ward No.13/15 (old), at present Ward no.29, Holding No.14 (part), P.S.- Kotwali in the town and district of Bhagalpur. The case of the plaintiff is that the suit property was purchased by her through a registered sale-deed dated 15.2.2005 for her own use and occupation. It is not in dispute that the defendant was a tenant under the erstwhile owner in one of the four shops situated in the premises. Each of the 4 shops admeasures 100 sq. ft. As according to the plaintiff, her younger son was sitting idle and needed to be settled hence she requested the defendant to vacate the shop and also sent legal notice in the said direction but the defendant refused to vacate the same and hence the suit in question. The case of the plaintiff further is that her son intends to open a television and electronic shops and for which he would require an area of 250 sq. ft. It is further the case of the plaintiff that in the said direction an eviction suit was earlier instituted against a tenant of a different shop which is adjacent to the suit shop, namely, Manoj Kumar Singh and which suit has since been decreed in favour of the plaintiff. ft. It is further the case of the plaintiff that in the said direction an eviction suit was earlier instituted against a tenant of a different shop which is adjacent to the suit shop, namely, Manoj Kumar Singh and which suit has since been decreed in favour of the plaintiff. It is stated that the total area of the two shops would more or less satisfy the needs and requirements. The defendant appeared in the suit and after seeking leave of the court under section 14(4) of the Act he filed a written statement contesting the plea. The sum and substance of the arguments advanced by the defendant before the court below and before this Court is that the plea taken by the plaintiff is a mere pretext to oust the defendant inasmuch as of the four shops situated in the market in a row, three are already owned by the plaintiff and are in their occupation and which would satisfy the needs of the plaintiff. It is the further case of the defendant that even if he is evicted from the suit shop the total area of the two shops for which eviction suits were filed by the plaintiff would not exceeds 200 sq. ft. and thus would not satisfy the needs of the plaintiff for settlement of her son and which raises questions on the plea of bonafide requirement. 4. On the basis of the pleadings advanced and the evidence adduced, the learned trial court after framing of the issues has decreed the suit in favour of the plaintiff and hence the present civil revision application. 5. The scope of interference in a judgment and order passed under the Act stands well explained in the judgments of this Court and the Supreme Court and requires no reference. In fact until such time the defendant is able to establish that the trial court has committed a violation of the statutory procedure set out under section 14 of the Act or the judgment passed suffers from perversity inasmuch as it is contrary to the evidence or is in excess of the evidence or despite the evidence available the finding is contrary, it need not be interfered merely on grounds of a second possible view. Of the four issues adjudicated upon by the trial court issue no.3 relatable to bonafide requirement and personal necessity for the shop and issue no.4 relatable to partial eviction are the issues which are relevant for the consideration of the matter in contest, since the landlord-tenant relationship is admitted. 6. I have heard Mr. Diwakar Upadhyaya, learned counsel appearing for the defendant-petitioner and Mr. Rajendra Narain learned senior counsel appearing for the plaintiff-opposite party in the matter. The plaintiff has not denied the ownership of the four shops situated in the area. In fact while accepting this position it is submitted that whereas one of the shops is being run by the elder son, the second shop is being run by the plaintiff herself and the 3rd and 4th shops which include one of the suit shops are being sought for establishment for her younger son who intends to open a retail store for television sets and other electronic equipments. It was submitted by Mr. Upadhyaya, learned counsel appearing for the defendant that as the need of 250 sq. ft., in any way was not going to be satisfied despite the eviction of the defendant hence the plaintiff could seek a partial eviction of the defendant to the extent of 50 sq. ft. which would satisfy the needs of the plaintiff as well as the defendant. 7. The suggestions of Mr. Upadhyaya was responded to by Mr. Narain, learned senior counsel by submitting that a partial eviction would not satisfy the needs of the plaintiff as already the area which would come within the use of the plaintiff is less than the area actually required and thus the business has to be adjusted within the area available. 8. Considering the circumstances in the backdrop of the arguments advanced by the parties, this Court is under no confusion that the plea taken by the plaintiff for the suit shop cannot be more bonafide than as claimed, for more than one reasons. It has not been the case of the defendant that the younger son of the plaintiff is independently settled rather an attempt was made to demonstrate that he is participating in business along with his brother. This submission does not draw any marks in favour of the defendant. In fact it does not even answer the plea taken by the plaintiff regarding the settlement of her younger son. This submission does not draw any marks in favour of the defendant. In fact it does not even answer the plea taken by the plaintiff regarding the settlement of her younger son. The plaintiff needs an area to settle her younger son and there is no evidence on record to establish that the son has any independent business or there is any other option available to the plaintiff to settle her son. 9. Considering the circumstances discussed hereinabove, the findings of the learned trial court on the issue of bonafide requirement and on partial eviction cannot be faulted with. The findings are on the basis of the evidence available and the pleadings advanced by the parties. There being neither any legal infirmity nor any jurisdictional error in the order impugned, no interference is called for. 10. This civil revision application is dismissed. However, there shall be no order as to costs.