Patna High Court
Giridhar Gopal Singh vs Gorakh Sah on 11 January, 2012
Equivalent citations: AIR 2012 (NOC) 174 (PAT.)
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.13 of 2000
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Giridhar Gopal Singh
.... .... Appellant.
Versus
Gorakh Sah
.... .... Respondent.
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Appearance :
For the Appellant/s :Mr. S.S.Dwivedi,Sr.Adv.
For the Respondent/s : Mr. MAHESH NARAYAN PARBAT
Mr. Ved Prakash Srivastava
Mr. Gupteshwar Prasad
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PRESENT
HONOURABLE MR. JUSTICE V. NATH
V.Nath, J.Heard Mr.S.S.Dwivedi, the learned senior counsel appearing on behalf of the appellant as well as Mr. M.N.Prabat, the learned counsel appearing on behalf of the respondent.
2. This appeal arises out of a suit for eviction which has been decreed by the appellate court in part reversing the judgment of the trial court whereby the suit was dismissed. The appellate court, after holding the requirement of the plaintiff to be bona fide and reasonable, however allowed only the part eviction of the defendant from the suit premises after considering the issue of partial Patna High Court SA No.13 of 2000 dt.14-10-2011 2 eviction.
3. A cross objection has also filed on behalf of the respondent challenging the finding on the issue of personal necessity as recorded by the appellate court below and by order dated 24.02.2009 the said cross objection had also been ordered to be listed alongwith this appeal. Accordingly, both the second appeal and cross objection has been heard on merits. The parties to this appeal hereinafter be referred to by their position in the suit.
4. The case of the plaintiff, in short, is that on the ground floor of his house, there are two rooms, one in northern side and the other on adjacent southern side. The room in the adjacent southern side has been let out to the defendant on monthly rent of Rs. 200/-. It has been stated in the plaint that the son of the plaintiff is unemployed and has taken the agency of Vaishali Transport for which purpose the entire ground floor consisting of the two rooms including the suit premises is required. It is the case of the plaintiff that the defendant, in spite of the request to vacate in view of the personal necessity of the plaintiff, is not vacating the suit premises.
5. The defendant admitted the relationship but has Patna High Court SA No.13 of 2000 dt.14-10-2011 3 contested the claim of the plaintiff on several grounds including the assertion that the sons of the plaintiff are minors and not fit to carry on business. It has also been denied that any of the sons of the plaintiffs had taken the agency of Vaishali Transport. It is the case of the defendant that the entire story of personal necessity has been concocted and fabricated by the plaintiff only for the purpose of ensuring the eviction of the defendant and as such the personal necessity as pleaded by the plaintiff is not bona fide and reasonable.
6. The trial court, after considering the evidence of the parties, dismissed the suit holding that the plaintiff has not succeeded in establishing his case of personal necessity. In appeal by the plaintiff, however, the appellate court reversed the judgment of the trial court and decreed the suit holding that the plaintiff had got personal necessity for the suit premises and he was entitled to a decree of eviction of the defendant. Thereafter the defendant filed C.R.No. 2155/94 before this Court against the aforesaid judgment and decree. After hearing the parties, this Court allowed the revision application and remitted the appeal to the appellate court below for fresh Patna High Court SA No.13 of 2000 dt.14-10-2011 4 consideration on the issue of personal necessity in view of the subsequent events as pointed out by the defendant and also on the issue of partial eviction. It also appears from the order passed in the civil revision application by this Court, a relevant portion which has been quoted in the impugned judgment, that besides the aforesaid two issues for which the remand order had been passed, no other point was raised by the counsel for the petitioner.
7. The appellate court, in view of the remand order of this Court, recorded the evidence of both sides and thereafter heard the parties. The appellate court, after considering the evidence of the parties including the evidence of the defendant regarding the subsequent events, has come to the finding that the plaintiff has got bona fide and reasonable personal requirement of the suit premises for the purpose of establishing his son in the business of Transport Agency. However, after considering the issue of partial eviction, the appellate court has granted the decree for eviction directing the defendant to vacate only 4 feet from east to west of the suit premises and has further also held that the rate of rent would remain intact.
8. This appeal has been admitted for hearing by Patna High Court SA No.13 of 2000 dt.14-10-2011 5 order dated 06.02.02 by this Court and the following substantial questions of law have been framed:-
(i) Whether lower appellate court failed to appreciate the requirement of the appellant's purpose for starting the transport agency which required a larger portion of the area which was quite impossible without vacating the entire area occupied by the defendant-
tenant?
(ii) Whether the lower appellate court, after the remand of the case by this Court, was prejudiced in holding that the plaintiff's requirement would be fulfilled by partial eviction without taking into account the evidence produced by the plaintiff, wherein there is specific statement that the plaintiff required the entire tenanted premises occupied by the defendant-tenant?.
(iii) Whether the lower appellate court failed to appreciate the real purpose enshrined under the personal necessity of the plaintiff for Patna High Court SA No.13 of 2000 dt.14-10-2011 6 which the plaintiff had proved his case as per requirement of the law and was entitled to get a decree of eviction?.
9. The learned senior counsel appearing on behalf of the appellant has submitted that the appellate court below has committed gross error in law in not directing the eviction of the defendant from the entire suit premises and the finding on the issue of partial eviction is perverse because the relevant material evidence in that regard has been ignored and misconstrued. It has been urged that the consistent case of the plaintiff has been that his requirement is of the entire suit premises as his purpose is to establish a transport agency for which the entire ground floor of his house including the suit premises would be required. It has been contended that the appellate court has ignored the pleading and evidence in this regard and has further misinterpreted the deposition of P.W. 5(plaintiff's son) who nowhere has stated that he required a space of 15/15 feet for his business rather from the reading of his deposition in entirely, it would be explicit that he has maintained his case of requirement of entire suit premises Patna High Court SA No.13 of 2000 dt.14-10-2011 7 and has specified the area of 15/15 feet for the purpose of keeping the articles only. Elaborating his submission further the learned counsel has contended that according to the well established principle, the entire deposition should have been read and considered and basing the decision on one or the other stray part of the deposition has always been deprecated. It has also been argued that the emphasis embedded in the rule of partial eviction is to look into the real need of the plaintiff and then consider the feasibility of its satisfaction by ordering partial eviction but the appellate court below has done the reverse. It has also been argued that the cross objection filed by the defendant respondent has got no merit as all the facts asserted as subsequent event have already been considered and a finding of fact has been arrived at. With regard to the facts mentioned in the supplementary affidavit of the defendant respondent, the learned counsel for the appellant has contended that those facts and documents annexed thereto cannot be considered at the second appellate stage in absence of the evidence brought on the record in support of the same under Order 41 Rule 27 C.P.C.
Patna High Court SA No.13 of 2000 dt.14-10-2011 8
10. The learned counsel appearing on behalf of the respondent, however, has submitted that the appellate court below has correctly decided the issue of partial eviction on the basis of the case made out by the plaintiff's son in his deposition. It has been contended that the space which would become available to the plaintiff after the partial eviction as ordered, would be sufficient to establish the transport agency and the appellate court below, after considering all the facts and circumstances of the case, has passed the correct judgment. It is also the contention of the learned counsel that the said issue has now been concluded by the finding of fact and no substantial questions of law is involved in this appeal. Further the learned counsel has also pressed his cross objection and submitted that the finding of personal necessity recorded in favour of the plaintiff is not a valid finding in view of the subsequent events. Referring to the facts and documents, stated and annexed in the supplementary affidavit, which has been filed during the course of hearing of this appeal, the learned counsel has submitted that the personal necessity of the plaintiff has vanished and according to the well settled principle that the Patna High Court SA No.13 of 2000 dt.14-10-2011 9 personal necessity as pleaded must exist till the date of final adjudication, no decree of eviction can be passed against the defendant.
11. The present appeal arises out of a suit for eviction filed on the ground of personal necessity alone. It is not disputed that the earlier a C.R.No. 2155/94 had come up before this Court at the instance of the defendant respondent challenging the order of eviction passed against him by the appellate court. This Court had remanded the appeal back to the appellate court below for passing judgment afresh reconsidering the issue of personal necessity in view of the subsequent events and also on the issue of partial eviction. It appears from the impugned judgment of the appellate court that the defendant had adduced evidence with regard to subsequent events as claimed by him regarding the employment of the son of the plaintiff for whom the plaintiff has claimed the requirement of the suit premises. The defendant's case that the plaintiff's son has now been employed in service and therefore the requirement of establishing him in transport business no more exists has been fully considered by the Patna High Court SA No.13 of 2000 dt.14-10-2011 10 appellate court below. After elaborately dealing with the evidence of the rival parties, the appellate court below has come to the conclusion that the plaintiff bonafidely and reasonably requires the suit premises for establishing his son in the transport business for which his son has already entered into an agreement with Vaishali Transport Agency.
12. Learned counsel for the respondent, supporting his cross objection, has submitted that in view of the subsequent events when the son of the plaintiff has admittedly got employment, the whole story of personal necessity has vanished but the appellate court has wrongly decided the issue in favour of the plaintiff on the assumption that his son would resign from the service and would establish his own business. However, this submission of the learned counsel is against the spirit of the clause containing the personal necessity as ground for eviction as envisaged under the Bihar Buildings (Lease Rent and Eviction) Control Act, 1982. It would be really an exasperating interpretation of this clause by which the plaintiff, in the facts of this case, would be required to Patna High Court SA No.13 of 2000 dt.14-10-2011 11 keep his son idle for all those years till the final decision of his eviction suit. The happening of subsequent events, no doubt, is to be considered by a court even in a suit for eviction on the ground of personal necessity but those subsequent events must be momentous enough as to really discredit the plaintiff with his case of personal necessity as pleaded. The principle that the personal necessity must exist till the final decision of the eviction suit cannot be interpreted to mean that the plaintiff must keep everything in standstill position and if the personal necessity of the suit premises is for starting a business the plaintiff must not opt for any employment to earn his livelihood till the litigation pends. It will be appropriate here to quote the observations of the apex court in the case of Gaya Prasad Vs. Pradeep Srivastava (2001(2) SCC 604) which runs as follows:-
"...The judicial tardiness, for which unfortunately the Indian system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate Patna High Court SA No.13 of 2000 dt.14-10-2011 12 terminus, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused..."
Theirs Lordships further observed:-
"...In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events..."
"...It would be pernicious and unjust to shut the door before an applicant just on the eve of his reaching the finale, after Patna High Court SA No.13 of 2000 dt.14-10-2011 13 passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendent lite, because the opposite party succeeded in prolonging the matter for such unduly long period..."
13. The appellate court below has taken notice of the temporary nature of the employment of the plaintiff's son and his shifting from the service of one company to another and has rightly come to the conclusion that such employment being temporary in nature could not frustrate the personal necessity as pleaded by the plaintiff. The finding on the issue of personal necessity has been arrived at after fully considering every facet of the evidence of the parties. I do not find any perversity in the said finding. There is no scope, at this stage, for considering the facts stated in supplementary affidavit and the document annexed thereto as the same have not been brought on record of this appeal in accordance with law. There is, thus, no substantial question of law arising for consideration in the cross objection filed by the defendant.
14. So far as the finding on the issue of partial Patna High Court SA No.13 of 2000 dt.14-10-2011 14 eviction is concerned, it is clear from the averments of the plaint that the plaintiff has pleaded the requirement of the entire ground floor of his house including the suit premises for establishing the transport agency for his son. The plaintiff's son who has deposed in the suit as P.W.5 has also categorically stated that he requires all the rooms in the ground floor for establishing his business of transport agency and half or partial eviction of the defendant from the suit premises (one room) would not fulfill his necessity. In his deposition he has elaborated his need for the entire ground floor for the office purposes as well as for keeping the goods till the delivery of the goods to the customer and also for keeping the goods, booked for transportation, till loading. The relevant portions of the deposition of P.W.5 read as follows:-
"rdjkjh dksBjh eSa vius O;kikj esa vkQhl ds rkSj ij iz;ksx d#Waxk rFkk mlds cxy okyk dejk xksnke ds fy, jgsxk rFkk vusdlh esa Hkh VªkWaliksVZ dk lkeku j[ksaxsA oS'kkyh VªkWaliksVzZ ls lkeku vkrk gS rFkk tcrd ikVhZ Mhyhojh u ys ysa rc rd dk VªkaliksV Z dk lkeku j[kuk iMrk gSA VªkaliksVZ esa eky Hkh cqfdax fd;k tkrk gSA VªkaliksVZ esa tc Vªd vkdj eky yksM Patna High Court SA No.13 of 2000 dt.14-10-2011 15 ugh ys tkrk gS rc rd lkeku lqj{khr j[kuk iMrk gS*A rdjkjh dksBjh lok 6 QhV pkSMk rFkk lk<s 10 QhV yEck gSAcxy okyh dksBjh Hkh rdjkjh okyh dksBjh ds cjkcj gSA vusdlh 4 QhV pkSMk rFkk 6 QhV yEck gksxkA VªkaliksVz esa dke ds fy, lkeku j[kus ds fy, vkfQl ds vykos 15@15 fQV dk txg de ls de pkfg,A 15@15 dk dejk gekjs ikl ugha gSA dejk ,oa vusdlh tksMus ij gekjk dke py tk,xk..."
15. The deposition of the P.W. 5 above mentioned does not show that his requirement is confined to only for the space of 15/15 rather he has explained his requirement for the entire ground floor consisting of two rooms and annexe. The appellate court has not objectively determined the extent of the requirement of the plaintiff for establishing and running his business of transport agency and has also not fully considered the evidence in this regard including the deposition of the plaintiff's son as mentioned above. The apex court in the case of (Nasirul Haque Vs. Jitendra Nath Dey) 1985 BLJ 43 has held that the "full effect to the concept of reasonable extent of the requirement from the perspective of substantial Patna High Court SA No.13 of 2000 dt.14-10-2011 16 satisfaction of such requirement as considered to be reasonable" has to be given "objectively". In this appeal the need for consideration of this aspect in detail has become relevant only because this Court by order in civil revision referred above has directed the appellate court below to give finding on this issue. In view of the principles illumined by the apex court as above mentioned, the appellate court below has failed to consider the substance and the purpose of the requirement of the plaintiff objectively on the basis of the evidence on record. The learned counsel appearing on behalf of the defendant could not point out any evidence led on behalf of the defendant to the effect that the requirement of the plaintiff could be satisfied substantially by lesser area then the whole of the ground floor as claimed by him. In view of the fact that the plaintiff established his case of personal necessity for the suit premises for establishing the transport business for his son, which has been upheld by the appellate court below, the finding by the appellate court below that the plaintiff's need would be satisfied by evicting the defendant only from a portion of 4 feet east to west of the suit premises is clearly not based on evidence Patna High Court SA No.13 of 2000 dt.14-10-2011 17 on record and has not been arrived at objectively keeping in view the substantial satisfaction of the requirement. It is accordingly, held that the decree and direction for eviction of the tenant from only a part of the suit premises is not sustainable in law and is hereby set aside.
16. In view of the foregoing reasons and discussions, the substantial questions of law framed in this appeal are answered in favour of the appellant. As a result this appeal is allowed, the cross objection is dismissed and the judgment and decree of the appellate court with regard to partial eviction is hereby set aside and the plaintiff is held entitled to the decree as claimed in the suit. In the facts of the case, the parties shall bear their own cost.
( V. Nath, J.) Patna High Court, Patna.
Dated:The 11 of January, 2012.
Nitesh/N.A.F.R.