Siya Devi, W/o Sri Tahal Chandra Ram v. Ranjeet Kumar Agrawal
2018-03-27
AMITAV K.GUPTA
body2018
DigiLaw.ai
ORDER : 1. This revision is directed against the judgment and decree dated 31.08.2015 and 09.09.2015 of the learned Civil Judge (Junior Division), Bokaro, in Title (Eviction) Suit No.09 of 2006, decreeing the suit of the plaintiff and directing the petitioner/ defendant-tenant to handover the vacant possession of the suit premises to the plaintiffs/ landlord. 2. Learned counsel, for the petitioner/ tenant, has submitted that the trial court has committed manifest error in decreeing the suit under Section 11 (1) (c) of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 (hereinafter referred to as 'the Act, 2000') by holding that plaintiffs/ opposite parties have been able to establish the bonafide personal necessity of the suit premises. It is argued that the plaintiffs/ opposite parties have not pleaded regarding the nature of business to be started by the grand-son of the plaintiff/ opposite party. That there is no pleading that the funds are available or how it is to be arranged for starting the business. Second limb of the argument is that the court below has erred in recording the finding that partial eviction will not satisfy the requirement of the plaintiffs/ opposite parties. 3. In support of the aforesaid contention, reliance has been placed on the decision rendered, in the case of Ramesh Chandra Agrawal Vs. Bhushan Ram; 1989 2 BLJ 312 ; 1989 0 PLJR 1118 ; 1988 0 Supreme (pat) 218 and canvassed that in the aforesaid judgment, it has been held that when the plaintiff and his son were not sure regarding the nature of business they intended to start neither any pleading was made regarding the availability of adequate funds, the finding recorded by the court below that there was bonafide requirement of the plaintiff was held to be perverse. It was observed that mere desire or wish cannot take the place of bonafide requirement in terms of Section 11 (1) (c) of the Act, 1982. Learned counsel has argued that in the case of Bijay Prasad & Anr. Vs. Md.
It was observed that mere desire or wish cannot take the place of bonafide requirement in terms of Section 11 (1) (c) of the Act, 1982. Learned counsel has argued that in the case of Bijay Prasad & Anr. Vs. Md. Nesar Ahmad & Anr.; 1991 2 PLJR 254 , in para – 4, it has been observed by the learned Single Judge that it is not mandatory for the defendant to plead that partial eviction will satisfy his need and even if there is no pleading to that effect, it is the duty of the court below record its satisfaction on the basis of the evidence available on record. 4. It is contended that in the case of Krishna Murari Prasad Vs. Mitar Singh; 1994 1 PLJR (SC) 87, the Hon'ble Supreme Court has observed that the High Court had committed an error in holding that “where the suit premises consists of one shop room and the requirement of the plaintiff is to set up a business, a presumption arises that the requirement of the plaintiff will not be substantially met if the defendant is directed to vacate a portion of the suit premises”. It is argued that the Hon'ble Supreme Court had set aside such finding and conclusion of the High Court holding that whether partial eviction is feasible or not is a question of fact and this aspect was required to be looked into by the trial court by conducting an enquiry on the basis of the evidence on record for recording the finding that partial eviction could or should not suffice to meet the need of the plaintiff. 5. Placing reliance on the aforesaid decisions, learned counsel has submitted that in the instant case, the trial court has erred in law in decreeing the suit in terms of Section 11 (1) (c) of the Act, 2000, by recording the finding that there was bonafide requirement of the suit premises by the plaintiffs/ opposite parties without appreciating the fact that there was no pleading by the plaintiff regarding the nature of business or the availability of funds for starting the business. It is argued that it was mandatory for the learned court below to record its finding on partial eviction on the evidence adduced by the parties. On the said grounds it is contended that the impugned judgment is fit to be set aside. 6.
It is argued that it was mandatory for the learned court below to record its finding on partial eviction on the evidence adduced by the parties. On the said grounds it is contended that the impugned judgment is fit to be set aside. 6. Learned counsel, for the plaintiffs/ opposite parties, has contended that the the court below has examined the evidence adduced by the parties on the question of partial eviction for recording its satisfaction that partial eviction will not satisfy the need or requirement of the plaintiff/land lord. It is argued that the decision rendered in the case of Krishna Murari Prasad (Supra) cited and relied upon by the counsel for the petitioner/ tenant is distinguishable from the attaining facts of the instant case because in the said case the premises comprised of a shop measuring 24' x 22' comprising of a verandah 6' x 22'. Therefore, considering the area and space of the suit premises, the Supreme Court had remitted the matter to the court below to conduct an enquiry for determining the question whether partial eviction would satisfy the need of the plaintiff. 7. It is canvassed that in the instant case the shop premises comprises of an area measuring 19.6'' x 10.6''. Therefore, if the premises is divided then each shop would measure 9.6' x 5.3'' which will not serve the requirement of the plaintiff. The plaintiff has specifically pleaded that he requires the entire suit premises for starting the business for his unemployed grand-son, Deepak Kumar. It is urged that in similar circumstances, in the case of Urmila Devi & Ors. Vs. Smt. Rani Devi & Ors.; 2007 (3) JCR 321 (Jhr), it was held that when the shop comprised of an area 8 ft. x 15 ft., then partial eviction will neither serve the purpose of the plaintiff nor of the defendant. It is argued that such findings were recorded by the High Court, even though the trial court had not considered or recorded a finding on the question of partial eviction. 8. Learned counsel has relied on the decision rendered in the case of Sunil Kumar Jaiswal Vs.
It is argued that such findings were recorded by the High Court, even though the trial court had not considered or recorded a finding on the question of partial eviction. 8. Learned counsel has relied on the decision rendered in the case of Sunil Kumar Jaiswal Vs. Suraj Bhan Thakur; 2018 (1) JLJR 22 , wherein it was held that even if the plaintiff is commercially sound and her family is well settled and even if she has not mentioned the nature of the business then also it cannot be a ground for discrediting the plaintiff's case that she requires the suit premises for her personal necessity. 9. It is contended that the court below has not committed any error in passing the decree of eviction as it has considered and discussed the evidence available on record while recording its satisfaction that there was bonafide requirement of the suit premises by the landlord and partial eviction would not satisfy the bonafide requirement of the plaintiff. 10. Heard. Before adverting to the arguments advanced by the learned counsel for the petitioner/ tenant, it would be necessary to reiterate that the proposition of law is well settled that revisional jurisdiction under Section 14 of the Act, 2000 is much wider than the revisional jurisdiction under Section 115 of the Code of Civil Procedure. It is settled principle that in exercise of such revisional jurisdiction, the court cannot re-appraise or re-appreciate the evidence even if the High Court is inclined to form a different opinion on the basis of the evidence available on record. The settled proposition is that evidence can be re-appreciated and reappraised only when the judgment and decree has been passed on misreading of the evidence or on the basis of no evidence or when there is perversity in appreciation of the evidence or the judgment/order is not in accordance with law. 11. In the considered opinion of this Court, the argument advanced by the learned counsel for the petitioner that in the absence of any pleading regarding the nature of business to be started or the non-availability of funds has not been considered and the finding of the trial court is perverse and non-acceptable, is not tenable. In this context it is pertinent to take note of the observation of the Apex Court in the case of Raj Kumar Khaitan Vs.
In this context it is pertinent to take note of the observation of the Apex Court in the case of Raj Kumar Khaitan Vs. Bibi Zubaida Khatun; (1997) 11 SCC 411 wherein in paragraph no.4 it has been held that :- “4. … ….. ….. …. The High Court, however, came to the conclusion that apart from the above quoted pleadings it was necessary to plead the nature of the business which the appellant-plaintiffs wanted to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellant-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated.” The ratio of the aforesaid judgment answers the argument advanced by the learned counsel and does not require any elaborate discussion. 12. On the question of partial eviction, it is noticed that the tenant/ petitioner has not pleaded that partial eviction would satisfy his need. In the absence of any specific pleading on this count there was no occasion for the plaintiff/ landlord to controvert such a question nor was he under a legal obligation to plead that partial eviction would serve or satisfy his need or requirement in view of the fact that it has been specifically pleaded by the plaintiff/landlord that the entire suit premises is required for starting the business of his grandson. In the fact situation, there was no need for the plaintiff to plead that partial eviction will not satisfy his requirement. On the contrary it was for the defendant to plead whether partial eviction would satisfy the need or requirement of the plaintiff or not. Evidently neither of the parties have pleaded regarding partial eviction. It is settled position that partial eviction is a question of fact and not of law. The question regarding partial eviction has to be determined and adjudicated on the basis of the evidence led by the parties. The exposited facts of the instant case reveals that the suit premises measures 19.6'' x 10.6''. The trial court has dealt with this aspect and recorded its finding at para – 16 of the impugned judgment, as under:- “.... ….. …..
The exposited facts of the instant case reveals that the suit premises measures 19.6'' x 10.6''. The trial court has dealt with this aspect and recorded its finding at para – 16 of the impugned judgment, as under:- “.... ….. ….. and further defendant even failed to prove that any other suitable premises was available to the landlord for the said purpose, further so far as question of substantial satisfaction by evicting the tenant from a part of the suit premises i.e. partial eviction, is concerned, though there is no pleading from either side on this point yet it is a mandatory/ integral part of the main section to be determined for that when I go through the entire evidences of both side along with the description of suit premises and after hearing finally to both sides I firmly hold that partial eviction does not substantially satisfy to the parties particularly because the fact that neither party has shown any interest regarding such adjustment nor the description of suit premises allows it nor the facts and circumstances justify such partial eviction.” 13. The defendant in her written statement has admitted that the plaintiff's grand-son has tried his best for employment in the Government or private sector but has not succeeded in getting any employment and due to such failure in getting any job he wants to set up a business. In view of the above pleading, it is contended by the learned counsel for the petitioner that this reveals that Deepak Kumar is not willing to do business rather his first choice is service. Such argument of the learned counsel for the petitioner/defendant is rather misconceived and it does not demolish or discredit the personal need and requirement of the suit premises by the plaintiff for starting a business for his unemployed grand-son. In fact, the plaintiff witnesses have also corroborated the fact that the plaintiff's grandson is unemployed and the suit premises is required for starting a business for him. 14. On perusal of the impugned judgment it is explicit that the court below has meticulously examined and discussed the evidence for recording its satisfaction that partial eviction will not suffice or satisfy the bonafide need of the plaintiff.
14. On perusal of the impugned judgment it is explicit that the court below has meticulously examined and discussed the evidence for recording its satisfaction that partial eviction will not suffice or satisfy the bonafide need of the plaintiff. The witnesses have supported the testimony of the plaintiff that the grand-son of the plaintiff had approached him for starting a business and the plaintiff had requested the defendant to vacate and handover the premises as he needed the suit premises for starting a business for his grand-son. The factum of need and bonafide requirement of the entire premises by the plaintiff has been unequivocally testified by the witnesses and the plaintiff in their testimonies. 15. Thus for the foregoing reasons and the discussions made, hereinabove, it is held that the impugned order does not suffer from any impropriety or illegality. There is no perversity in recording of the findings on the basis of evidence on record, by the court below. The judgment of the trial court is in accordance with law and does not merit any interference by this Court. In the result this revision is, hereby, dismissed being sans merit.