Patna High Court - Orders
Dwarika Prasad vs Sumaiya Jaftab on 29 April, 2013
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.91 of 2012
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Dwarika Prasad, S/O Chandrika Prasad R/O Mohalla - Kagji Muhalla,
Dindayal Nagar, Post - Siwan, P.S. Siwan Nagar, District - Siwan.
.... Defendant .... Petitioner/s
Versus
Sumaiya Aftab, W/O Aftab Alam, D/O Late Md. Sohaib, R/O Mohalla -
Purani Bajaji Chouwk, Super Market, Ward No. 29, P.O. Siwan, P.S.
Siwan, District - Siwan.
.... Plaintiff .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ranjan Kumar Dubey
For the Opposite Party/s : Mr. S.M. Shabbir Alam
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
5 29-04-2013This civil revision application under section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act') has been filed questioning the judgment and order dated 30.3.2012 passed by the learned Munsif 1st , Siwan in Eviction Suit No. 17 of 2009, whereby the learned trial court has been pleased to decree the suit in favour of the plaintiff and has directed the defendant, who is petitioner before this Court, to vacate the suit premises within sixty days of the order, failing which the plaintiff would have the liberty to get the same vacated through the process of the court.
The suit premise is a shop situated within the Super Market in the town and district of Siwan. The suit has been filed raising grounds of bonafide requirement arising from the Patna High Court C.R. No.91 of 2012 (5) dt.29-04-2013 2 personal necessity of the plaintiff who requires the suit premise for opening a shop for her husband who intends to open a shop of jewellery in the suit premise. The suit was contested by the defendant on grounds of other option available to the plaintiff as also on grounds that the finding of partial eviction is not in consonance with the mandatory requirement and the judicial pronouncement on the issue and which contentions of the defendants having been rejected, resulting in the judgment and order impugned, hence this civil revision application.
It is the case of the plaintiff in the court below that the market complex known as 'Super Market' was constructed by her father who died in the year 2001, leaving behind his widow and two unmarried daughters, i.e. the plaintiff- opposite party and her elder sister Sumera. The widow also deceased in the year 2003 and thus the shops constructed by the father of the plaintiff fell to the share of the plaintiff and her sister with each having possession over 10 shops each. It is an admitted position that the shop in question was purchased by the plaintiff from her sister who is stated to have disposed of her share in the market. By operation of law the defendant came under the tenancy of the plaintiff and thus the landlord-tenant relationship is not in dispute. The pleadings as well as the evidence led by the parties Patna High Court C.R. No.91 of 2012 (5) dt.29-04-2013 3 suggest that the defendant while questioning the bonafide requirement of the plaintiff to maintain the suit had suggested that another shop is available to the plaintiff and which could have been utilized for the personal necessity of the plaintiff. Another plea was taken that the defendant had given a loan of Rs.60,000/- to the erstwhile owner, i.e. the elder sister of the plaintiff and which was yet to be adjusted. Raising these two objections, the plea raised, was contested by the defendant but has been rejected by the judgment and order under challenge.
I have heard Mr. Ranjan Kumar Dubey, learned counsel appearing for the defendant and Mr. S.M. Shabbir Alam, learned counsel appearing for the plaintiff-opposite party in the matter. The entire arguments of Mr. Dubey circled around the deposition of the plaintiff made in paragraph 25 of the deposition in which a statement has been made by the plaintiff that there was a shop above the suit shop and of which the lock is open. The said statement made by the plaintiff was being relied upon by Mr. Dubey to suggest that there was a vacancy and would satisfy the needs of the plaintiff. Other than the said statement, there is no other material on record to demonstrate the availability of other option. There is no doubt that a plea of personal necessity has to rest on the bonafides and faith of the Patna High Court C.R. No.91 of 2012 (5) dt.29-04-2013 4 plaintiff to seek eviction but whether the defendant has been able to make out such a case, is posed before this Court. The other argument of Mr. Dubey was that considering the size of the shop, the needs of the parties could be satisfied by partial eviction. It was submitted that as the plaintiff herself deposed that she did not have knowledge as to the area of the shop, hence she cannot contest the issue of partial eviction. Mr. Dubey has relied upon the following judgments of this Court in support of his submissions on bonafide requirements and partial eviction:
(i) 1999 (1) PLJR 919 (Lagandeo Prasad vs. Nawal Kishore Prasad), paragraphs 6 and 7.
(ii) 1998 (3) PLJR 846 (Mustaqeem @ Md. Mustaqeem vs. Akhilesh Kumar) , paragraphs 6 and 7.
(iii) 1998 (3) PLJR 541 (Sachida Nand Prasad vs. SrimatiSavitri Sahay).
The arguments have been contested by Mr. Alam, learned counsel appearing for the plaintiff opposite party to submit that the judgment and order under challenge has been passed within the jurisdiction vested in the trial court and upon appreciation of the evidence led by the parties and a mere second opinion would not require interference with the same. He further submits that the statement of the plaintiff that the lock of Patna High Court C.R. No.91 of 2012 (5) dt.29-04-2013 5 the shop above the suit shop was open, in no circumstance could mean a vacancy nor any other evidence was led by the defendant to support the said vacancy. He submits that even going by the statement of the defendant, the vacancy occurred in June 2009 and the suit was instituted thereafter in October 2009 and the defendant has failed to prove that as on the date of institution of the suit whether or not the shop in question was vacant. He further submits that the plaintiff in paragraph 11 of her plaint has very categorically stated that the needs of her husband for opening a jewellery shop would not be served by partial eviction. It was submitted that the learned trial court considering the rival contentions while upholding the plea of bonafide requirement has also held that considering the area of the shop, the needs of the plaintiff cannot be satisfied and which finding does not demonstrate any perversity. Of the issues framed by the learned trial court, the issue no.4 relating to bonafide and reasonable requirement of the plaintiff for her personal necessity, issue no. 5 relatable to partial eviction and issue no. 6 concerning the entitlement of the plaintiff for a decree are the issues relevant for consideration. The facts not being disputed and the judgment and order impugned having been passed in the light of the evidence led by the parties, the only thing which Patna High Court C.R. No.91 of 2012 (5) dt.29-04-2013 6 requires consideration is whether there were evidence available on record to demonstrate the option available to the plaintiff and which has been ignored or overlooked by the learned trial court while supporting the plea of bonafide requirement and secondly whether or not there is any perversity in the finding of the learned trial court on the issue of partial eviction. As I have already observed except for the attempt for the defendant to read into the statement made by the plaintiff regarding the lock of the shop above the suit premise being open there is nothing on record to suggest that there were other options available to the plaintiff and which would have satisfied her needs for settlement of her husband. Even the oral evidence does not support the plea and that is the reason why the defendant has to rely upon the deposition of the plaintiff by reading between the lines to prove that there were other options available to her. Considering the evidence available to contest the plea of bonafide requirement, the finding of the learned trial court in relation to issue no.4 cannot be found fault with and is fully in accordance with law.
Apart from the said aspect the statement of the defendant himself that the husband of the plaintiff is doing hawkery business by itself proves the necessity of the plaintiff for a settlement. That would bring this Court to the issue of Patna High Court C.R. No.91 of 2012 (5) dt.29-04-2013 7 partial eviction and considering the statement of the plaintiff requiring the entire premises for the purpose of opening of the shop which statement finds support from the deposition of the husband of the plaintiff who has deposed as plaintiff witness no.2, the finding given by the learned trial court that considering the size of the shop, a division would not be suitable for either of the parties, suffers from no perversity.
For the reasons aforesaid, I do not find any ground to interfere with the judgment and order impugned. This civil revision application is accordingly dismissed.
(Jyoti Saran, J) SKPathak/-