Bishnu Prasad Bhagat vs Prakash Basnett on 15 June, 2019

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Sikkim High Court

Bishnu Prasad Bhagat vs Prakash Basnett on 15 June, 2019

1. The suit for eviction, recovery of possession and mense profit was filed by the Respondent before the Court of the learned District Judge (East and North), East Sikkim at Gangtok, against the tenant, the Appellant herein. Various grounds for eviction were taken. The solitary ground which is being contested in the present appeal is the requirement of 2 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett the suit premises for the personal occupation of the landlord, the Respondent herein.

2. The suit premises is situated at Pakyong Bazar, East Sikkim and therefore, "Notification no. 6326-600/H & WB dated 14.04.1949 (1949 Notification) regulating letting and sub letting of premises etc." issued by the then Health & Works Department, is the law applicable. Clause 2 of the 1949 Notification is relevant and quoted below:

"2. The landlords cannot eject the tenants so long as the scarcity of housing accommodation last, but when the whole or part of the premises are required for their personal occupation or for thorough overhauling the premises or on failure by the tenants to pay rent for four months the landlords may be permitted to evict the tenant on due application to the Chief Court."

3. On 27.08.2013 the learned District Judge framed four issues. Issue no.1 is the relevant issue i.e. "1. Whether Plaintiff is in bonafide requirement of the suit property?"

4. The Respondent examined himself, his wife-Purna Kumari Basnett his daughter-Puspanjali Basnett, his son- Praveen Basnett and Dr. Chandra Shekher Sharma a Psychiatric at STNM Hospital, Gangtok. The Appellant examined himself, Subash Prasad Gupta, a businessman in Pakyong Bazar, Bhagnarayan Sharma, a carpenter of Pakyong Bazar and Md. Shafi Mohammad also a businessman of Pakyong Bazar.

R.F.A. No. 05 of 2016

Bishnu Prasad Bhagat v. Prakash Basnett

5. The learned District Judge examined the said issue of bonafide requirement and held that the Respondent has been able to prove that their house at Namcheybong is in dilapidated condition. The learned District Judge also came to the conclusion that the Respondent had been able to prove that he was under medication as he was unwell and suffering from schizoaffective disorder. It was held that the Respondent had also been able to show that the suit premises were required for the personal occupation of the Respondent i.e. for the occupation of his dependent son and daughter. It was held that therefore, the Respondent was successful in establishing his claim of bonafide requirement and personal occupation. A decree of eviction was accordingly passed against the Appellant. The impugned judgment dated 30.09.2015 passed by the learned District Judge in Eviction Suit No. 05 of 2013 is challenged.

6. Heard Mrs. Laxmi Chakraborty, learned Counsel for the Appellant and Mr. Zangpo Sherpa, learned Counsel for the Respondent.

7. At the outset it must be noticed that Clause 2 of the 1949 Notification provides for eviction of the tenant when the whole or part of the premises are required on the ground of "personal occupation" of the landlord. The Respondent had sought eviction on several grounds. A holistic reading of the 4 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett plaint suggests that the Respondent required the suit premises as his Namchebong house was in a dilapidated condition; due to his fear about the high tension electricity line running above his Namcheybong house endangering their lives; his ill health including mental illness for which he desired to accommodate a help; to accommodate his growing children who did not have adequate personal space in the Namcheybong house and who were pestering him for it which was causing him mental stress; to establish them in business as they were completing their education and generally to have a larger accommodation for the family. The requirement of the Respondent for the suit premises consisting of two rooms of the building owned by him was for his own requirement as well as for the requirement of his children who were pursuing their education. That "personal occupation" of the landlord includes the requirement of the dependents as well is now well settled. While interpreting Clause 2 of the 1949 Notification this Court in re: Ashok Kumar Rai v. Girmi Goparama (Sherpa)1 and Pradeep Golyan v. Durga Prasad Mukhia2 held that the term "personal occupation" in Clause 2 of the 1949 Notification extends to occupation and requirement of not only the landlord but also his dependants.

8. The Respondent, his wife, daughter and son entered the witness box and deposed about the dilapidated condition of 1 AIR 2012 Sikk. 29 2 (2016) SCC OnLine Sikk 225 5 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett their house at Namcheybong. To establish the dilapidated condition of the house the Respondent exhibited some photographs of the house (exhibit-3 collectively). The learned Counsel for the Appellant pointed out that the Respondent had admitted in cross-examination that he had not submitted the negatives/CD of the photographs of the house. The cross- examination did not go further than that. No suggestion was put to the Respondent that the photographs were fabricated. The exhibition of the photographs was also not objected to. During the Respondent's cross-examination by the Appellant he deposed that he does feel scared living in the dilapidated Namcheybong house but due to compulsion he has to live there as the Appellant has not vacated his house at Pakyong Bazar. On an application for a commission an Advocate Commissioner was appointed by the learned District Judge who examined the house and the high tension electricity line running over the house along with the Advocates for both the Respondent and Appellant and submitted her report (QQ) along with photographs. The order dated 06.08.2013 specifically directed the learned Advocate Commissioner to ascertain about the dilapidated condition of the Namcheybong house as well as the electricity line passing over the house. The learned Advocate Commissioner confirmed the dilapidated condition of the Respondent's house at Namcheybong. Although detailed cross-examination was done 6 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett by the Appellant's Counsel the learned Advocate Commissioner's report could not be demolished. Comparing the photographs taken by the learned Advocate Commissioner with the photographs (exhibit 3) produced by the Respondent it is certain that they are genuine. The photographs also reflect the dilapidated condition of the Namcheybong house.

9. The Respondent has been able to cogently prove that his house at Namcheybong is in dilapidated condition. The averment in the plaint that the Respondent requires the suit premises as the Namcheybong house is not in proper condition for human living is not even specifically denied by the Appellant. The learned Advocate Commissioner not only confirmed that the house was dilapidated but also denied the suggestion made by the Appellant during cross-examination that the entire house was habitable. The Respondent's wife, daughter and son also supported the evidence of the Respondent that the Namcheybong house was in dilapidated condition. The learned Advocate Commissioner stated that only the bedroom was habitable. Thus, the Respondent has also been able to establish that he requires the suit premises for his personal occupation.

10. The Respondent has asserted in his plaint that 11000 KV high tension electricity line passes above the roof of the Namcheybong house. The Appellant in his written statement asserted that the electricity line would not endanger the 7 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett Respondent's life. The Respondent, his wife, daughter and son all deposed about the high tension electricity line passing above the Namcheybong house and that it would endanger their lives. The Appellant did not cross-examine the Respondent's wife and son about it. The mere admission by the daughter that she was not an expert to evaluate whether the electricity line passing above the Namcheybong house endangers human life and property would not destroy their perception that it would in fact do so. The Respondent's asserted during his cross-examination that he had in fact written several letters to the Power Department complaining about the electricity line on the suggestion of the Appellant that he had not done so. The Respondent, his wife, his daughter and son's depositions that the high tension electricity line runs over their Namcheybong house was confirmed by the learned Advocate Commissioner in her report. She confirmed that the line passes just about six to seven feet away from the roof of the Namcheybong house. The Respondent has been able to establish that high tension electricity line passes above the Namcheybong house and they did have concern about it endangering their lives.

11. Yet another ground raised by the Respondent in the plaint was with regard to the son and the daughter requiring their private space. The Appellant did not specifically deny the said averments in the plaint. The Respondent deposed that 8 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett presently his son was pursuing engineering and his daughter computer education and both requires separate room. The Appellant did not cross-examine the Respondent on this aspect. The Respondent's daughter and son also asserted their need for a separate room. On the suggestion of the Appellant the daughter stated that she has been asking the Respondent for space/house despite knowing that he is unwell. The Respondent's need for the suit premises for his children has also been established.

12. The Respondent has averred that he is suffering from various healths related issues including mental health. He has averred that therefore, he needs the suit premises for a help too. The Respondent has averred that the doctor has advised him against stress and his children approaching him for more space was causing him stress. The Respondent also deposed about the same in his evidence-on-affidavit. Extensive cross-examination was done on this aspect by the Appellant. The Respondent stood firm. His evidence about his mental health is confirmed by his doctor-Dr. Chandra Shekher Sharma, a Psychiatrist at the STNM Hospital, Gangtok who also exhibited a certificate issued by him (exhibit-8) confirming that the Respondent was suffering from Schizoaffective disorder and advised to avoid stress. The cross-examination yielded no fruitful result. The Respondent's wife, daughter and son also confirmed the Respondent's 9 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett health condition. The Appellant himself made a suggestion to the Respondent during his cross-examination to which he deposed that in 2008 he was admitted in the rehabilitation centre and in Psychiatric clinic due to mental illness which he developed since 1999. The admission of the Respondent's wife pointed out by the learned Counsel for the Appellant that he improved due to treatment cannot destroy the overwhelming evidence about his ill health. The Respondent has been able to establish that due to his health problems he requires the suit premises for his personal occupation.

13. The learned Counsel for the Appellant submitted that the assertion of the Respondent that he requires the suit premises for establishing his daughter and son for their business has been completely demolished by their admission in cross-examination. Besides the Respondent and his wife, both the daughter and the son also deposed that they require the suit premises for starting their business. The daughter admitted in cross-examination that she had obtained exhibit- 6 in the month of July, 2013 for the purpose of this case on the suggestion of her parents. Exhibit-6 is however, a fee receipt from the Sikkim Manipal Institute of Technology in favour of the son showing the date of his admission as 08.07.2013. It is not the application for issuance of trade licence as suggested by the learned Counsel for the Appellant during the hearing. Exhibit-5 is the computer course 10 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett certificate of the daughter. No suggestion was made that the computer course certificate (exhibit-5) was a false certificate. The computer course certificate (exhibit-5) would show that she in fact was doing the three year degree and diploma in software engineering i.e. B.Sc. I.T. and GNIIT. The son in his cross-examination stated that he was an engineering student although he was not sure what he would like to do in future. This admission may not completely destroy his evidence-on- affidavit that he wants to start his own business for which he had also taken a license from the UDHD Department. The learned Counsel for the Appellant pointed out his admission that exhibit-6 and exhibit-7 where obtained by him according to the legal advice of his Advocate. She would urge that this admission would show that the said documents were procured only for the purpose of this case. No suggestion was made by the learned Counsel to the son that the said documents were false. Exhibit-6 as stated earlier is his fee receipt from the Sikkim Manipal Institute of Technology for his admission. Exhibit-7 is a certificate from the UDHD department dated 29.06.2013 certifying that the son had applied for trade license for a grocery/manihari shop and the daughter for computer sales service. The plaint was filed on 05.03.2012. It is quite evident that exhibit-7 was obtained for the purpose of the eviction suit. However, the cross- examination of the son and the daughter did not yield any 11 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett damaging result. The stand of Respondent, his wife, his daughter and son that they require the suit premises to start business remains intact. In fact it was on the suggestion of the Appellant that the Respondent admitted that his children constantly pesters him to provide with another accommodation and he had to vacate the Appellant in order to establish his children who desires to run business of their own during cross-examination. Even if this Court was to disbelieve the son and daughter seeking to establish business on the ground that they sought trade license only after the suit was filed by the Respondent other grounds taken by the Appellant sustains.

14. The learned Counsel for the Appellant relied upon the evidence of Subhash Prasad Gupta, a businessman from Pakyong bazar, who was examined as the Appellant's witness. Subhash Prasad Gupta in his evidence-on-affidavit stated that the Respondent used to live in his Namcheybong house earlier but of late after construction of RCC building at Bardang he has shifted there. In cross-examination he admitted that he had not seen the RCC building constructed at Bardang or who the owner of the said building was. Moreover, during the Respondent's cross-examination by the Appellant he denied the suggestion that he was staying in the Namcheybong house only for the purpose of evicting the Appellant. This clearly indicates that the Appellant was also 12 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett aware that the Respondent was in fact staying in the Namcheybong house.

15. On an application of the Appellant the learned Advocate Commissioner also inspected the Bardang property and submitted her report (exhibit-QQ1). As per the learned Advocate Commissioner the Bardang property is owned by the Respondent's wife. According to her the entire RCC building is on rent and only one room is with the Respondent.

16. Even if Subhash Prasad Gupta's evidence is taken as correct it is quite evident that the Bardang property owned by the Respondent's wife is fully occupied with only one room with the Respondent. Thus, the Respondent's requirement for the suit premises does not get diminished in any way.

17. The evidence produced by the Respondent establishes that the Nacheybong house does not have adequate accommodation besides the other inadequacies of it being dilapidated and high tension line running above it. It is certain that the Respondent's family consist of his wife, daughter and son. It cannot be doubted that the requirement of adequate accommodation for the family would grow when children grow up.

18. Similarly, the Respondent desire to accommodate a help due to his health issues and to have adequate room when his relatives visit cannot be termed fanciful. 13 R.F.A. No. 05 of 2016

Bishnu Prasad Bhagat v. Prakash Basnett

19. The learned Counsel for the Appellant also submitted that the agreement dated 12.03.1999 did not contemplate eviction by the Respondent at all and therefore it was not permissible for the Respondent to seek eviction. The Respondent has sought eviction on the ground of bonafide requirement of the suit premises and not under the contract. Personal occupation of the landlord is a valid ground for eviction under the 1949 Notification. Thus, the submission of the Appellant on this ground must also fail.

20. The next argument raised on behalf of the Appellant was that the Respondent had not approached the Court with clean hands and made false pleas and statements on oath. The learned Counsel for the Appellant sought to refer to the previous plaint filed by the Respondent which was however, subsequently amended. The amendment was allowed by the learned District Judge and the order allowing the amendment, admittedly has not been challenged. The Appellant did not even suggest to the Respondent that he had made false plea on oath in the previous plaint. It would not be permissible for the Appellant to raise the plea of false averments in the previous plaint which has since been amended, at this stage. The learned Counsel also pointed out several statements in the extensive cross-examination of the Respondent and his witnesses and sought to persuade this Court to throw out the suit on the ground that those 14 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett statements are evidently false. In a suit of this nature what is important is to gauge the requirement being natural, real, sincere, honest, genuine and bonafide. When a witness enters the witness box, it is, most of the time, a new and overwhelming experience. Every sentence spoken in the witness box cannot be minutely dissected and examined through hawk eyes for its truthfulness unless the sentence directly and substantially affects the case set up. A certain degree of latitude must be accommodated for genuine human errors including the thought being lost in translation. It is better to appreciate the overall impact of the evidence produced rather than go nitpicking and hair-splitting over it.

21. The learned Counsel for the Appellant pointed out to the deposition of the Respondent in cross-examination in which he stated "it is true that apart from my Advocate, there was nobody else present when I signed on exhibit-13 in chamber of my Advocate." It was submitted that from the said deposition it is clear that the evidence-on-affidavit of the Respondent was not under oath. The learned Counsel however, did not point out the next sentence in the cross-examination of the Respondent after the above quoted sentence. The next sentence reads "it is not true that I do not know the contents of exhibit-13 and that I did not take the oath before I verified the same." A perusal of the evidence-on-affidavit of the Respondent reflects that it was solemnly affirmed before the 15 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett learned Oath Commissioner on 26.09.2013 by the deponent i.e. the Respondent and identified by one Deven Sharma of Gangtok. The said evidence-on-affidavit (exhibit-13) bears the stamp of the learned Oath Commissioner. The fact that the evidence-on-affidavit (exhibit-13) was in fact affirmed before the learned Oath Commissioner cannot be doubted only because of the statement of the Respondent taken in isolation.

22. The learned District Judge has held that the suit premises is genuinely required for the personal accommodation of the Respondent, his dependent son and daughter, the requirement was honest and did not suffer from any ill motive. This Court is in agreement with the said finding of the learned District Judge.

23. In re: Jagdish Prasad v. Tashi Tshering Bhutia3 this Court held:

"9. A look at the said notification, and in particular Clause 2 thereof, would make it abundantly clear that on no other ground, but only on those three grounds as mentioned therein, the respondent could seek eviction of the appellant. However, the said clause itself gives discretion to the Court to permit eviction. In other words, if any of the three grounds mentioned in the said clause of the said notification in put home, the same would not necessarily result in eviction. The Court would be required to use its discretion in permitting eviction. In order to sue such discretion, the Court was required to take into account the conduct of the respondent, the hardship he is likely to face and other surrounding circumstances."

2010 SCC OnLine Sikk 48 16 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett

24. The Respondent has pleaded hardship and proved it. The Respondent had specifically pleaded in the plaint that the Appellant has alternative accommodation. The Appellant vehemently denied the same and pleaded that the suit premises is the only means of livelihood of the Appellant having five family members. The Appellant did not specifically answer whether he had alternative accommodation. The Appellant's business could be his only means of livelihood but not the suit premises. The Appellant also did not choose to address the issue of alternative accommodation in his evidence-on-affidavit. During cross-examination the Appellant admitted that he is residing in a building of one Ganga Ram at Pakyong Bazar and he has ancestral property at his native place in Bihar. In such circumstances, it is difficult to consider any special equities in favour of the Appellant against eviction.

25. As no other ground was urged in the present appeal nothing further remains to be examined. The appeal must necessarily fail. The judgment dated 30.09.2015 passed in Eviction Suit No. 05 of 2013 is upheld. The decree dated 30.09.2015 is also upheld, except that the Appellant is given time for a period of four months from today to vacate the suit premises on the condition that he will continue to pay rent till then. This is in consideration of the fact that the Appellant 17 R.F.A. No. 05 of 2016 Bishnu Prasad Bhagat v. Prakash Basnett has been in occupation of the suit premises and doing his business from there since 1999 and would thus require sometime to shift his business.

( Bhaskar Raj Pradhan ) Judge 15.06.2019 Approved for reporting: yes.

to/ Internet: yes.

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