Patna High Court
Arun Kumar Sah vs Md. Basir Ahmad And Anr. on 10 December, 1980
Equivalent citations: AIR1981PAT230, 1981(29)BLJR466, AIR 1981 PATNA 230, (1981) PAT LJR 336 1981 BLJR 466, 1981 BLJR 466
JUDGMENT Chaudhary Sia Saran Sinha, J.
1. This is defendant's second appeal against the judgment of reversal passed by the learned Second Additional Subordinate Judge, Bhagalpur, in an appeal arising from a suit for eviction filed by the two brothers, who are respondents.
2. The suit for eviction was filed by the respondents as plaintiffs on the ground of personal necessity, namely that they required tenanted shop in occupation of the appellant for their personal requirement and business, as also for the three sons of respondent Basir Ahmad, who are all grown-up. The disputed rented premises in which the appellant runs a cloth shop exists on the main Sujaganj Bazar Road leading to Bhagalpur Railway Station, and passing through one of the main markets of the town of Bhagalpur. The respondents run a business in watches by the name and style of the National Watch Company in a small rented shop, having undisputedly only a frontage of 4 to 5 cubits in breadth. Certain purchases were made by the plaintiffs in the year 1963. The lands purchased are near the disputed shop. They have no frontage towards the main Sujaganj road. In a portion of this purchased land the plaintiffs also run a business of watches, locally called as 'National Gift House'. Several agencies of sewing machine and other articles were also obtained by them. For expansion of their business, particularly with a view to provide occupation to the three sons of respondent Basir Ahmad, the plaintiffs, on refusal of the defendant to vacate the suit premises, filed the instant suit for eviction, which was resisted by the appellant.
3. The trial Court dismissed the suit of the plaintiffs on the ground that the plaintiffs had not succeeded in establishing personal necessity.
4. The respondent took up the matter in appeal. The lower appellate Court held that the respondents required the suit holding reasonably and in good faith for their personal necessity and consequently after setting aside the judgment of the trial Court, it decreed the plaintiffs' suit for eviction from the entire disputed premises, which has given rise in this second appeal at the instance of the defendant.
5. Two substantial questions of law were formulated by the learned single Judge of this Court while admitting this second appeal. They are mentioned in order No. 11 dated 5-1-1980. The first is whether the evidence led by the plaintiffs is sufficient in law to establish personal necessity within the meaning of the Bihar (Rent) Control Act? The second is whether the lower appellate Court was under the duty to examine the question if the necessity of the plaintiffs can be satisfied by a partial decree in the present case ?
6. The submission of Mr. S.C. Ghose, learned counsel for the appellant, was twofold. His first submission was that on the materials on record the finding of the lower appellate Court about the suit holding being required by the plaintiffs reasonably and in good faith for their personal necessity was wrong and should be set aside. The second submission was on the lines as indicated in point No. 2 formulated at the time of admission of the appeal. Learned counsel for the respondents refuted the contentions raised by Mr. Ghose.
7. The lower appellate Court held categorically that the plaintiffs required suit holding reasonably and in good faith for their personal necessity. This is a finding of fact. A finding of fact duly recorded by the lower appellate Court in accordance with law is binding on this Court It is true that this finding recorded by the lower appellate Court is contrary to the finding recorded by the trial Court but on the materials on record the trial Court appears to be in error in arriving at this finding.
8. The submission of Mr. Ghose was that this finding suffered from certain infirmities, which, according to Mr. Ghose, vitiated the judgment of the lower appellate Court. The main plea taken by the plaintiffs was personal necessity for expansion of the business. The trial Court observed in its judgment that the plea of expansion of the business cannot be regarded as convincing for the reason that no evidence was led by the plaintiffs-landlords to show as to what was their capital in 1971 when the suit was filed or their present capital. Mr. Ghose contended that this aspect had not been considered by the lower appellate Court. As stated above, the plaintiffs set up a case of expansion of the business of their own as also for the three sons of Basir Ahmad who are all grown up boys and are undisputedly unemployed although one of them has graduated and the other two passed intermediate examination. The defendant did not dispute in his pleading that the plaintiffs had no capital to expand their business. Rather, D. W. 1 admitted that the business of the plaintiffs had expanded. There is also the evidence on behalf of the plaintiffs' witnesses to support this part of the case of the plaintiffs. The lower appellate Court has also found that the plaintiffs' business is growing day to day. These impliedly mean that the plaintiffs must have sufficient capital for expansion of the business and, there is, therefore, no reason to disturb the finding of fact arrived at by the lower appellate Court.
9. The second submission of Shri Ghose was that the requirement mentioned in Section 11 (1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, (hereinafter to be referred to as 'the Act') must be the requirement on the date of institution of the suit, and the Court will not be justified in allowing the prayer for eviction on the ground of the requirement arising subsequent to the filing of the suit. This position cannot be disputed, but, as satisfactorily discussed in the judgment of the lower appellate Court, the materials on the record justify a finding about reasonable requirement and in good faith even in the year 1971 when the suit was instituted. At marginally noted page 12 of the lower appellate Court's judgment, it has been found that in the year 1971 the three sons of Basir Ahmad were unemployed. These sons of Basir Ahmad might not have attained majority at the time of institution of the suit and might have been students, but the plaintiffs, who are undisputedly running their business since long before the institution of the suit, might have intended to expand their business in the particular context of the employment of the three sons of Bisar Ahmad.
10. There is another aspect of the marten also, which leads to the consideration of another argument advanced by Mr. Ghose, namely, the finding of the trial Court that there is sufficient space in the ground floor of the National Gift House for keeping almirah and displaying goods. According to Mr. Ghose, this aspect of the case has not been considered by the lower appellate Court. The dimensions of the shop in which the Gift House is located, are only about 30' x 12'. It is in the back portion of the National Watch Company, a shop of the plaintiffs situate in a rented premises. The shop in which the Gift House is situated is not located in the main Sujaganj Road. The National Watch Company is itself located in a rented room quite small in size, its frontage on the main Sujaganj Road being 4 x 5 cubits. After giving these reasons the lower appellate Court has found that it does not agree with the finding of the trial Court that the plaintiffs can expand their business in the space lying vacant inside.
11. There is still a third aspect which the lower appellate Court has rightly considered, namely, that if the suit premises is obtained by the plaintiffs, they can construct a staircase right from Sujaganj Bazar Road for going upon the first floor of the premises locating Gift House.
12. Having considered all these aspects and the materials on the record the lower appellate Court recorded the above findings of fact.
13. The submission of Ghose further was that any and every requirement of the landlord may not attract the provisions of Section 11 (1) (c) of the Act for which the requirement must be reasonable and in good faith. What is reasonable and in good faith is a question of fact to be determined on the evidence on the record and the circumstances flowing therefrom. The lower appellate Court on a consideration of the evidence and the circumstances flowing therefrom has recorded a finding that the requirement of the plaintiff is reasonable and in good faith. I do not see any reason to disturb this finding of the lower appellate Court.
14. The result is that it is held that the evidence on the record is sufficient in law to establish the ground of personal necessity to attract the provisions of Section 11 (1) (c) of the Act as correctly found by the lower appellate Court.
15. This takes me to the consideration of the second point urged by Mr. Ghose which,, in my opinion, has to prevail. There is a proviso to Sub-section (1) (c) of Section 11 of the Act which runs as follows:--
"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 Clause (aa) of Section 2, and the rent so fixed shall be deemed to be the fair rent fixed under Section 5"
The situation contemplated in the proviso can arise after the case of the landlord about his requirement being reasonable and in good faith is accepted. This Act was intended for the benefit of the tenant. Circumstances may arise where continuance of a tenant in a portion of the rented premises may not stand in the way of reasonable requirement of the landlord being substantially satisfied. The proviso, therefore, lays down that where the Court thinks that the 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 as contemplated therein. This aspect has not been considered by the two Courts below.
The submission of Mr. Ghose was that the position of the premises locating Gift House was such that even after allowing the tenant to continue in occupation of a portion of the suit premises, the personal requirement of the plaintiff-landlords may be substantially satisfied by evicting the tenant from a portion to enable the plaintiffs to construct a staircase right from the flank of Sujaganj Road to the premises locating the Gift House, if necessary, to provide accommodation for show of the materials for sale. The proviso refers to the agreement of the tenant and is conditioned by such an agreement. The submission of Mr. Ghose Was that although there was no such pleading and no evidence was adduced, the defendant would be agreeable to continue only in such portion of the suit premises as might be considered appropriate by the Court on a consideration of the substantial satisfaction of the requirement of the landlords.
16. A question arises whether such a plea should be allowed to be taken at the stage of second appeal in the absence of any pleading, issue or evidence or even grounds taken in the second appeal. Mr. Ghose contended that the provision of the Act having been enacted for the benefit of the tenant this Court should not hesitate in allowing such a plea and in support of his contention he referred to two decisions, one of the Supreme Court and the other of a Division Bench of this Court. The Supreme Court decision is reported in AIR 1978 SC 413 (Rahman Jeo Wangnoo v. Ram Chand). In the case in paragraph 2 their Lordships observed as follows:--
"... .. ... The trial Court and the first appellate Court have really not considered this question on merits; indeed evidence itself has not been taken on the score that there has been no specific plea in that behalf. We are satisfied that the proviso aforesaid mandates the Court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted."
Their Lordships directed the first appellate Court to go into the question as to whether the reasonable requirement of the landlord may be substantially satisfied by evicting the tenant from a part only of the premises as contemplated in the proviso with certain observation mentioned above. It is true that the Act that was under the consideration of the Supreme Court in this decision was the Jammu and Kashmir Houses and Shops Rent Control Act (34 of 1966) but Shri Ghose contended, whose contention was not refuted by the learned counsel for the respondents, that the provision of the said Act was similar to that contained in the proviso to Section 11 (1) (c) of the Act. The second was a decision of the Division Bench of this Court in Ranjit Singh v. Shanti Devi (Second Appeal No. 257 of 1977) disposed of on 16-8-1979. While remanding the case then* Lordships ordered that the question of partial eviction of the tenant under Section 11 (1) (c) of the Act should be considered.
17. There is yet another decision of the Calcutta High Court in Krishna Das Nandy v. Bidhan Chandra Roy (AIR 1959 Cal 181) where it was held that there was enough justification under the statute, namely, West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950) to allow the plea of partial eviction to be taken by the defendant for the first time before the appellate Court if it had not been considered on considered properly by the trial Court. Their Lordships observed that "sitting in this Court for administering justice, I have never refused to listen to a point, relevant to the case, merely because it was not mooted earlier unless the other party happened to be prejudiced thereby beyond recompense ....."
The further observations were that where "the statute casts a duty on the Court to consider a particular aspect of the matter, the question of delay or default on the part of a party may not be strictly relevant .. ..."
Learned counsel for the respondents did not complain regarding the appellant being in any way prejudiced it the matter is sent back for reconsideration on this limited point and in face of the decision of the Supreme Court in the case of Rahman Jeo Wangnoo (AIR 1978 SC 413) (supra) he raised no objection before this Court in allowing the contention of Mr. Chose. In such a situation a remand of the matter on this limited point appears to be necessary.
18. The result is that the appeal succeeds in part. While the finding of the lower appellate Court about personal requirement of the respondents being reasonable and in good faith is confirmed, the matter is remanded to the trial Court for going into the question as to whether the reasonable requirement of the respondents may be substantially satisfied by evicting the appellant from a part only of the premises in question as contemplated in the proviso to Section 11 (1) (c) of the Act. The trial Court will frame an issue to this effect, allow the parties to adduce evidence regarding the same and on hearing counsel for the parties shall give a finding on this limited issue. If after taking evidence the Court is satisfied that the entire premises in suit must be vacated to substantially satisfy the reasonable requirement of the landlords, the suit shall be decreed in full. If, on the other hand the Court finds that the proviso applies and that partial eviction will meet the ends of justice, as visualised in the proviso, an appropriate order will be passed on that footing. The Court shall proceed on the footing that the absence of a specific pleading under the said proviso does not stand in the way of the obligation of the Court to act in compliance with the mandate of the statute. There will be no order as to costs in this Court.