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2014 DIGILAW 564 (PAT)

Hira Lal Das v. Loknath Newatia

2014-05-06

MUNGESHWAR SAHOO

body2014
ORDER This civil revision application under Section 14 (8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as ‘the B.B.C. Act’) has been filed by the petitioners against the judgment and order of eviction dated 13.04.2012 passed by the learned Additional Munsif-III, Bhagalpur in Title Eviction Suit No.40 of 1992/76 of 2012 decreeing the plaintiff’s suit for eviction on the ground of personal necessity. 2. The plaintiff filed the aforesaid eviction suit against the defendants-petitioners alleging that he is the owner of the suit property and landlord as he has purchased the same by registered sale deed dated 17.11.1981 and came in possession of the same. One Gaibi Das, who was the father of the petitioners, was inducted as tenant in the suit premises on monthly rent of Rs.75/- who started manufacturing of shoes business in the suit premises in the name of ‘Harijan Shoe Factory’. The plaintiff purchased the suit premises for his own use and occupation for running cloth business as he was running his cloth business in rented premises at Sujaganj Bazar. The landlord has filed Eviction Suit No.08 of 1985 against the plaintiff. The plaintiff had no other place of his own in the town of Bhagalpur. The plaintiff requested Gaibi Das to vacate the suit premises but he did not vacate the same and then he died in 1988-1989. 3. The petitioners, who were defendants, filed contesting written statement. According to them, the defendants-petitioners started business in the entire premises of Holding No.3 in the name of ‘Harijan Shoe Factory’ but on account of pressure the major portion of the premises was vacated and the landlord changed the shop and the feature of the shop and converted into three portions. Late Gaibi Das had to shift his business to a small room, which is the present suit premises. The other two portions were let out to two other tenants by the landlord on higher rent but the petitioners continued to pay Rs.75/- per month. Gaibi Das was running the business under the licence issued by Labour Department in the name of Girish Ram and Uday Shankar till his death and defendant nos.1 and 2 continued the business with Abhay Kumar Das and Anand Kumar Das under the trade licence in the name of Sangeeta Devi and Chanki Devi. Gaibi Das was running the business under the licence issued by Labour Department in the name of Girish Ram and Uday Shankar till his death and defendant nos.1 and 2 continued the business with Abhay Kumar Das and Anand Kumar Das under the trade licence in the name of Sangeeta Devi and Chanki Devi. The suit premises is not suitable place for cloth business because it is not in Kaprapatti and is running in second part of the holding whereas third part is lying vacant since long. The defendants further alleged that the personal necessity is mere pretence. The plaintiff is running his business in most suitable and convenient place which is a big shop situated in the heart of Kaprapatti of Sujaganj Bazar. 4. The defendants further pleaded that the suit is not maintainable because of non-joinder of necessary party. 5. On the basis of the aforesaid pleading of the parties the learned trial court framed the following issues: (i) Whether the suit as framed is maintainable? (ii) Whether the suit is barred by law of limitation, Specific Relief Act, estoppel, waiver and acquiescence? (iii) Whether the plaintiff got valid cause of action to file this suit? (iv) Is the suit bad for mis-joinder and non-joinder of parties? (v) Is there landlord-tenant relationship between plaintiff and defendants? (vi) Whether the plaintiff has bonafide personal necessity for the relief sought? (vii) Is the plaintiff entitled to get decree of eviction and other reliefs as claimed? 6. Thereafter on the basis of the evidences produced by the parties the learned court below held that the defendants are the tenants in whose direction and control the business is being conducted, as such, the suit is not bad for non-impleading the daughters of Gaibi Das and other legal heirs as defendants in the suit. The court below also recorded the finding that the plaintiff has been able to prove the personal necessity. The court below also recorded the finding that the matter of partial eviction has also not been alleged on behalf of any of the parties. On the basis of above findings, the court below has decreed the plaintiff’s suit for eviction. 7. The court below also recorded the finding that the plaintiff has been able to prove the personal necessity. The court below also recorded the finding that the matter of partial eviction has also not been alleged on behalf of any of the parties. On the basis of above findings, the court below has decreed the plaintiff’s suit for eviction. 7. The learned counsel for the petitioners assailed the impugned order of eviction, firstly, on the ground that on the death of Gaibi Das all his legal representatives became the statutory tenants and, therefore, unless they are made party in the suit for eviction, the eviction suit itself was not maintainable. The court below has wrongly held that the other legal representatives are not necessary party. According to the learned counsel, since the family is joint and the business is joint which is run by all the legal representatives of Gaibi Das, all are necessary party. Secondly, the learned counsel submitted that it was incumbent on the court below to have decided the question of partial eviction because in the plaint nowhere the plaintiff has mentioned about the area of the suit premises. Therefore, it was the duty of the court in view of the proviso to Section 11 (i) (c) of the B.B.C. Act to decide as to whether the need of the plaintiff would be substantially satisfied by partial eviction. The court below has not considered the proviso to Section 11 (i) (c) of the B.B.C. Act, therefore, the impugned order is bad in law. The learned counsel submitted that even if none of the parties raised the question regarding partial eviction, the duty has been cast on the Court to decide the question of partial eviction but the court below has only said that none of the parties raised this question, therefore, he has not decided, as such, the judgment and order of eviction be set aside. In support of his contentions, the learned counsel relied upon various decisions which I will consider later on. Thirdly, the learned counsel submitted that no evidence has been produced by the plaintiff to show that in fact any eviction decree has been passed against him in the eviction suit filed by his landlord. In support of his contentions, the learned counsel relied upon various decisions which I will consider later on. Thirdly, the learned counsel submitted that no evidence has been produced by the plaintiff to show that in fact any eviction decree has been passed against him in the eviction suit filed by his landlord. Because the plaintiff is running his business smoothly in a big shop premises and no eviction decree has been brought on record, there is no question of personal necessity arises but the learned court below has not considered this aspect of the matter. 8. On the other hand, the learned counsel appearing on behalf of the plaintiff-opposite party submitted that the other heirs of Gaibi Das are not approaching the court rather the defendants are claiming that the suit is bad for non-joinder of other heirs of Gaibi Das. According to the learned counsel, in eviction suit on the death of original tenant all the heirs are not necessary party. Admittedly the present petitioners alleged that they are continuing the business, as such, they are the tenants according to the plaintiff. Whether the other heirs inherited the interest in the business or whether the licence is in the name of other persons is not material for the landlord and it is not expected that the landlord will know the internal arrangement made between the heirs of Gaibi Das. If anybody is receiving any benefit from the joint family business or that licence is in his name he will not become the tenant. The learned counsel submitted that the learned court below has rightly, therefore, held that the suit is not bad for non-joinder of other heirs. 9. So far partial eviction is concerned, the learned counsel submitted that once the plaintiff proves his personal necessity, the onus is on the defendants to prove that the requirement of the plaintiff will be substantially satisfied by partial eviction but in the present case the defendants did not raise this question before the trial court, as such, now they cannot be allowed to say that the impugned judgment and order of eviction be set aside and remanded to the court below for deciding this issue. Thirdly, the learned counsel replied the submission of the learned counsel for the petitioners that the fact that the plaintiff is running his business in rented premises which is admitted by the defendants itself is the ground for personal necessity, therefore, it is not necessary for the plaintiff to bring the decision in the present suit. The learned counsel further submitted that the finding recorded by the court below on the basis of evidence regarding personal necessity is finding of fact and on the basis of the same set of evidence this Court in revisional jurisdiction cannot re-appreciate the evidence and record different finding. Moreover, according to the learned counsel only with a view to see the correctness of the finding, this Court can examine the evidences available on record. On these grounds, the learned counsel submitted that the civil revision application is liable to be dismissed. 10. In view of the above rival contentions of the parties, the points to be determined in this revision application are whether the eviction suit filed by the plaintiff-opposite party without making the other legal representatives as defendants is maintainable and whether because of non-consideration of partial eviction the judgment and order of eviction passed by the court below is said to be vitiated or is liable to be set aside. 11. The learned counsel for the petitioners relied upon a decision of the Hon’ble Supreme Court in the case of Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another, reported in A.I.R. 1990 Supreme Court 2053 wherein the Hon’ble Supreme Court on the facts and circumstances stated therein took the view that the ex parte decree obtained against the mother and brother was not binding against the respondent therein. The learned counsel for the petitioners submitted that on the basis of the judgment and order of eviction in the present case, the opposite parties cannot be put into exclusive possession of the premises since the nephew and sister-in-law of the petitioners are also equally entitled to the tenancy after the death of original tenant Gaibi Das. According to the learned counsel, on the death of Gaibi Das all his sons, widow and sons of predeceased sons became the tenant, as such, the decree even if is held to be valid, the same cannot be executed against the other heirs of Gaibi Das. According to the learned counsel, on the death of Gaibi Das all his sons, widow and sons of predeceased sons became the tenant, as such, the decree even if is held to be valid, the same cannot be executed against the other heirs of Gaibi Das. Therefore, the suit was not maintainable because the court below has passed inexecutable decree. Since the family is joint and the other heirs are also tenant, how they will be dispossessed from the suit premises? 12. So far the decision above referred to, relied upon by learned counsel for the petitioners, is concerned, it may be mentioned here that the same has been subsequently considered by the Hon’ble Supreme Court in the case of Ashok Chintaman Juker and others Vs. Kishore Pandurang Mantri and another, reported in (2001) 5 Supreme Court Cases 1. In this case the original tenant had died. The Hon’ble Supreme Court held that it is not the case of the appellant no.1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed appellant no.1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the present case, at our hand also, the case of the defendants in the written statement that they are continuing family business after death of Gaibi Das and the family business is joint family business. It is not their case that the suit premises has been divided among them and each of them is paying separate proportionate rent to the landlord rather the specific case is that the rent is being paid by them. 13. It may also be mentioned that the definition of tenant provided in B.B.C. Act is in pari materia with the definition of tenant in the Rent Control Act of Bombay. 13. It may also be mentioned that the definition of tenant provided in B.B.C. Act is in pari materia with the definition of tenant in the Rent Control Act of Bombay. Moreover, as stated above the fact remains that the petitioners are tenant continuing the joint family business. The defence that the other legal heirs of Gaibi Das are also paying rent or the licence is in their names or they have also got a share in the family business is concerned, it is their internal arrangement and on the basis of their internal arrangement the landlord cannot be asked to make each of them party in eviction suit particularly when the tenancy is one and after death the same one tenancy devolved on the legal representatives. 14. It is also admitted fact that there has been no partition, therefore, in view of the decision of the Hon’ble Supreme Court reported in (2001) 5 Supreme Court Cases 1 the eviction decree passed against the petitioners, who always pay rent to the landlord, will be binding on other joint tenants because there is no separate tenancy between the plaintiff and the other legal representatives. Moreover, the other heirs/legal representatives of Gaibi Das are not coming to the court for being added as party defendant. The petitioners’ case is that for non-impleadment of them the suit for eviction is not maintainable. In my opinion, therefore, in view of the settled proposition of law laid down by the Hon’ble Supreme Court in the above decision, this contention of the learned counsel for the petitioners is not tenable and it cannot be said that the suit for eviction is bad for non-joinder of other legal representatives of Gaibi Das. Therefore, the finding recorded by the court below on this question is hereby confirmed. 15. So far the question regarding partial eviction is concerned, the learned counsel for the petitioners relied upon A.I.R. 1978 Supreme Court 413 (Rahman Jeo Wangnoo Vs. Ram Chand and others), 2004 (1) P.L.J.R. 752 (Most. Sushila Devi & Ors. Vs. Sri Lakhan Lal Sah & Ors.), A.I.R. 1994 Supreme Court 489 (Krishna Murari Prasad Vs. Mitar Singh), 2013 (3) P.L.J.R. 446 (Anil Kumar Ram @ Anil Ram Vs. Ram Chand and others), 2004 (1) P.L.J.R. 752 (Most. Sushila Devi & Ors. Vs. Sri Lakhan Lal Sah & Ors.), A.I.R. 1994 Supreme Court 489 (Krishna Murari Prasad Vs. Mitar Singh), 2013 (3) P.L.J.R. 446 (Anil Kumar Ram @ Anil Ram Vs. Pares Nath Das & Ors.) and submitted that it is incumbent on the Court to decide the question of partial eviction irrespective of the fact that whether the parties addressed the Court on the question of partial eviction or not. 16. On the contrary, the learned counsel for the opposite party relied upon 2005 (3) P.L.J.R. 719 (Shri Vinod Kumar Gupta & Anr. Vs. Smt. Pushpa Devi & Anr.), 2013 (2) P.L.J.R. 491 (Satya Narain Mishra @ Barkuji Vs. Sudhanshu Anand & Ors.), 2012 (3) P.L.J.R. 649 (Hanuman Prasad Gupta Vs. Shankar Choudhary) and submitted that it was also for the defendant-tenant to establish by leading appropriate evidence that even his eviction from part of the tenanted premises would have substantially satisfied the need of the plaintiff but no evidence has been adduced by the defendant on this question and in fact in the present case the defendants in the written statement clearly stated that the suit premises is very small room and in the evidence the defendant himself admitted the area of the suit premises to be 17 feet in length and 12 feet in width vide paragraph 2 and 13 of D.W.10. According to the learned counsel, if the defendants pleaded in the written statement that the shop premises measuring 17 feet x 12 feet is small shop premises then there is no question of agreeing of the defendants to partial eviction arises. When according to the defendants themselves the suit premises is small, how can it be said that partial eviction of 17 feet x 12 feet will satisfy the plaintiff’s need for cloth business particularly when according to the defendants themselves, the plaintiff is running his business in a big shop. 17. In the case of Satya Narain Mishra @ Barkuji Vs. Sudhanshu Anand & Ors, reported in 2013 (2) P.L.J.R. 491 this Court has held that once the issue of bonafide requirement and personal necessity is drawn in favour of the plaintiff, the onus shifts upon the defendant to prove that the bonafide requirement and personal necessity of the plaintiff would be satisfied by partial eviction. Sudhanshu Anand & Ors, reported in 2013 (2) P.L.J.R. 491 this Court has held that once the issue of bonafide requirement and personal necessity is drawn in favour of the plaintiff, the onus shifts upon the defendant to prove that the bonafide requirement and personal necessity of the plaintiff would be satisfied by partial eviction. On failure of the defendant to lead any evidence in this regard, the issue should be decided in favour of the plaintiff. This view has been reiterated by this Court in 2012 (3) P.L.J.R. 649 (Hanuman Prasad Gupta Vs. Shankar Choudhary) and 2005 (3) P.L.J.R. 719 (Shri Vinod Kumar Gupta & Anr. Vs. Smt. Pushpa Devi & Anr.). 18. So far the decisions relied upon by the learned counsel for the petitioners are concerned, it has been held in those decisions that the proviso to Section 11 (i) (c) of the B.B.C. Act mandates the Court to decide the question of partial eviction even in the absence of such pleading and while considering the partial eviction the Court has to consider the reasonable requirement of the landlord which has to be determined on the basis of the evidence on record and not on the basis of mere desire. No doubt, in the present case, no such issue has been framed but it is not necessary to frame any separate issue on partial eviction. The Court is required to consider regarding partial eviction even if there is no pleading but there must be evidence available on record. 19. In the present case, from perusal of the impugned judgment, it appears that the defendants in the written statement stated that the suit premises is small room. The defendants admitted that the length and breadth of the suit premises is 17 feet x 12 feet only in evidence. They did not raise any question that the requirement of the plaintiff will be satisfied by partial eviction and that they are desirous of continuing the business in part of suit premises and, therefore, this question of partial eviction was not pressed before the court below, which has been mentioned by the court below. Now, before this Court for the first time this question is being raised that this partial eviction matter has not been considered. Now, before this Court for the first time this question is being raised that this partial eviction matter has not been considered. When the evidence is available about the length and breadth of the suit premises and the pleading of the defendants that it is very small room, can it be said that for non-consideration of proviso to Section 11 (i) (c) of the B.B.C. Act the judgment and order of eviction is vitiated? The answer will be no. 20. As has been stated above, it has been held in the above decisions that the onus is on the defendant to prove the fact that the need of the plaintiff will be satisfied substantially by partial eviction but no evidence was adduced. In my opinion, therefore, considering the pleading and admission of the defendants that it is only 17 feet x 12 feet, it is not desirable to remand the matter for consideration as to whether the plaintiff’s requirement will be satisfied by partial eviction. No doubt, this Court is not sitting in appellate jurisdiction under Section 96 of the Code of Civil Procedure but then it is settled principles of law that this Court has the higher jurisdiction than the jurisdiction conferred under Section 115 of the Code of Civil Procedure. 21. It is also settled principles of law that civil revisional jurisdiction is a part of appellate jurisdiction. In such circumstances, this Court can also consider the question of partial eviction when evidence is available and in all cases on this ground the matter should not be remanded to the trial court when evidence and pleading is available. 22. In the present facts and circumstances of the case, therefore, I hereby hold that the partial eviction will not satisfy the requirement of the plaintiff. It is settled principles of law that while considering the plaintiff’s need the Court must see the convenience of both the parties and also the area of the suit premises and should not in the garb of partial eviction, partition the suit premises as if the Court is dividing the premises between the co-sharer. Here the pleading of the defendant itself is that the suit premises is a small room which indicate that the defendant is not agreeing to partial eviction. 23. Here the pleading of the defendant itself is that the suit premises is a small room which indicate that the defendant is not agreeing to partial eviction. 23. Here, it is admitted fact that the plaintiff was running his business in a big rented shop premises, therefore, it itself is personal necessity of the plaintiff, as such, he needs the suit premises in good faith for personal occupation for running his cloth business. Therefore, the court below has rightly found that the plaintiff requires the suit premises in good faith for his personal occupation. 24. In view of the above discussions, I do not find any reason to interfere with the impugned judgment and order of eviction passed by the court below. Thus, the finding of the court below is hereby confirmed. 25. In the result, this civil revision application is dismissed.