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2014 DIGILAW 893 (JHR)

Ram Awtar Singh v. Santosh Kumar Gupta

2014-08-25

D.N.UPADHYAY

body2014
Order This Civil Revision has been preferred by petitioner/defendant against the judgment dated 27.03.2012 and decree dated 09.04.2012, passed and signed by learned Civil Judge, Senior Division-IV, Hazaribag in connection with Eviction Suit No.13 of 2008 whereby the suit has been decreed on contest with cost and the petitioner has been directed to deliver the vacant possession of the suit premises within one month from the date of judgment failing which he shall be evicted through process of the Court. 2. The plaintiff has made out a case that he holds lease of suit property, a shop premises, within Ward No.8 corresponding to new Ward No.14 being western part of Municipal Market Stall No.15 bearing old municipal No.195, new holding No.251 having an area of 7 feet 8 inch east to west and 31 feet north to south, more fully described in Schedule-A of the plaint. The petitioner/defendant has been inducted as a tenant and he has been doing business in the name and style of M/s Hindustan Trading Company and paying rent of Rs.650/per month at the time of filing of the suit. 3. It is contended that Avinash Kumar Gupta, one of the son of plaintiff, has left his studies and sitting idle and therefore, the plaintiff, in order to set up a business for his son Avinash Kumar Gupta, bonafidely and reasonably requires the suit premises for his occupation. In this context requests were made by the plaintiff to the defendant to vacate the suit premises but inspite of several requests he did not vacate the same whereafter lawyer's notice dated 31.07.2007 was served upon the defendant asking him to handover vacant physical possession of Schedule-A premises. The defendant, instead of vacating the suit premises, filed petition with false and frivolous allegation whereupon proceeding under Section 107 Cr.P.C. was initiated between the plaintiff and the defendant. When the defendant lastly refused to vacate Scheduled-A premises on 18.07.2008, there was left no option with the plaintiff but to prefer a suit on the ground that suit premises is bonafidely and in good faith requires for his own occupation. The cause of action for filing the suit arose on different dates when requests were made to defendant to vacate the suit premises i.e. on 18.07.2008 and on further dates but he refused to vacate the same. The cause of action for filing the suit arose on different dates when requests were made to defendant to vacate the suit premises i.e. on 18.07.2008 and on further dates but he refused to vacate the same. The suit is valued of Rs.7800/and for the purpose of jurisdiction of the Court, court fee on that amount was duly paid. On the basis of plaint, Eviction Suit No.13 of 2008 was registered in the Court of Munsif at Hazaribagh. 4. The defendant, after service of notice, appeared and filed written statement stating interalia that the suit is not maintainable in its present form, barred by law of limitation and adverse possession. It is contended that after seeking consent from the plaintiff the nature of business was changed from M/s Hindustan Trading Company and he started business of fast food in the said shop premises. The defendant has further made averments as to how he came in possession of said shop premises but he has admitted that at the time of institution of the suit he had been paying rent of Rs.650/per month to the plaintiff. The defendant has further made out a case that suit premises is not required reasonably and in good faith for occupation of the plaintiff rather he wants to settle the same with another person on higher rent. The plaintiff is having other suitable accommodation in his possession which are lying vacant wherein son of the plaintiff Avinash Kumar Gupta can start his business. 5. On the basis of pleadings of the parties following issues were framed: (I) Is the suit maintainable in its present form ? (II) Has the plaintiff valid cause of action ? (III) Whether there exists relationship of landlord and tenant between the plaintiff and the defendant ? (IV) Whether the plaintiff bonafidely required the suit premises for his personal use and occupation ? (V) To what other relief is the plaintiff entitled thereto ? The plaintiff and defendant adduced evidence oral and documentary in support of their respective pleadings. At the adjudication learned Civil Judge, Senior Division, Hazaribag has decreed the suit on contest with cost and directed the defendant to hand over the vacant physical possession of the suit premises and hence this civil revision under Section 14(8) of the Code of Civil Procedure. 6. At the adjudication learned Civil Judge, Senior Division, Hazaribag has decreed the suit on contest with cost and directed the defendant to hand over the vacant physical possession of the suit premises and hence this civil revision under Section 14(8) of the Code of Civil Procedure. 6. The petitioner/defendant has assailed the impugned judgment and decree on the ground that the plaintiff does not require the suit premises reasonably and in good faith for use and occupation of his son Avinash Kumar Gupta. The suit is bad for nonjoinder of necessary party. The issue that the requirement of plaintiff shall be served by occupying a portion of the suit premises has not been properly dealt with by the learned Court. The petitioner has further challenged the findings of learned Sub Judge and the decree on the ground that the plaintiff cannot be considered a 'landlord' for the purpose of Section 11(1)(c) because the admitted case of the plaintiff is that he holds the suit premises on lease from Hazaribag Municipality. He cannot be treated as absolute owner of the suit property because occupation of the building cannot be considered to be held by him for the benefit of other person. Learned counsel has relied on the judgment reported in AIR 1981 (SC) 1113 (M.M. Quasim Vs. Manohar Lal Sharma & Others) and submitted that definition of landlord requires to be considered in a case of personal necessity as envisaged under Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 in view of the interpretation elaborately given by their Lordships in para 14 of the said judgment. Admittedly the plaintiff holds the suit property on lease from Hazaribag Municipality and therefore, he cannot be treated as landlord in view of the judgment cited above and also the provisions contained under Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The judgment and decree, therefore, is liable to be set aside. 7. Learned counsel appearing for the opposite party has opposed the argument and relied on the judgment reported in 1996 (1) PLJR 110 (Smt. Kalyani Bhan & Others Vrs. Mrs Roqula Parveen Yunus and submitted that the facts appearing in the case at hand is squarely covered by findings given in the above judgment. 7. Learned counsel appearing for the opposite party has opposed the argument and relied on the judgment reported in 1996 (1) PLJR 110 (Smt. Kalyani Bhan & Others Vrs. Mrs Roqula Parveen Yunus and submitted that the facts appearing in the case at hand is squarely covered by findings given in the above judgment. In the case of Smt. Kalyani Bhan (supra) husband of the plaintiff was residing in AbuDhabi (Gulf country) and the property was standing in his name but the suit was filed by his wife Roquia Parveen Yunus on the ground that tenanted premises reasonably and in good faith required for the occupation of the daughter of the plaintiff and they want to start nursing home. The ground of personal necessity was considered and the suit was accordingly decreed. This issue was also taken note of that the plaintiff was only a Benamidar because the property was standing in the name of her husband Md. Yawar Yunus. The plea taken that the plaintiff is not real owner of the property and she is not entitled to bring a suit for eviction on the ground of personal necessity was rejected and the suit was decreed. Learned Sub Judge has discussed the issue of partial eviction by considering the length and breadth of the disputed shop and clear finding has been given that partial eviction shall not serve the purpose of the plaintiff. The suit has rightly been decreed. There is no merit in this revision. 8. I have gone through the lower Court records and the judgments cited above. It is admitted case of the plaintiff that he holds the suit premises on lease from Hazaribag Municipality which was let out to the petitioner on monthly rent. The plaintiff has pleaded that suit premises is reasonably and in good faith required for his personal use to set up a business for his son Avinash Kumar Gupta who is sitting idle. Therefore, as per the averment made in the plaint the plaintiff bonafidely requires the suit premises for his son but in this context definition of landlord as expressed under Section 11(1)(c) is required to be discussed. The definition of 'landlord' in Section 2(d) and expression of 'landlord' as contained under Section 11(1)(C) has well been discussed by their Lordships in the judgment of M.M. Quasim (supra) in para14 which is as under: “14. The definition of 'landlord' in Section 2(d) and expression of 'landlord' as contained under Section 11(1)(C) has well been discussed by their Lordships in the judgment of M.M. Quasim (supra) in para14 which is as under: “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 subcl. (c) of subsec. (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(1)(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 subsection. 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 bolds 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 subcl. (c) of subsection (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 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 …..........” 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.” In concluding part of para 14 it is contended “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.” 9. It is not disputed that the suit premises is held by the plaintiff on lease given to him by Hazaribag Municipality and therefore, the plaintiff cannot be considered absolute owner of the said property and he cannot be treated as landlord in view of the provisions contained under Section 11(1)(c) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947, particularly in view of the discussions and observations made by their Lordships in the case of M.M. Quasim (supra), I feel inclined to allow this petition. Accordingly, this civil revision stands allowed. The judgment dated 27.03.2012 and decree dated 09.04.2012, passed and signed by learned Civil Judge, Senior Division-IV, Hazaribag in connection with Eviction Suit No.13 of 2008 stands set aside. 10. So far other issues are concerned, in view of the findings given above, discussion on other issues would be a futile exercise and therefore I do not intend to deal with those issues separately. 11. The parties shall bear their own costs.