Jharkhand High Court
Gopal Swami ? Gopal Goswami vs Tara Chand Jaiswal & Ors. on 5 March, 2014
Equivalent citations: 2014 (2) AJR 350
Author: D.N. Upadhyay
Bench: D.N. Upadhyay
CIVIL REVISION NO. 99 OF 2006
Against the Judgement dated 01.09.2006, passed by Munsif, Bokaro and
Decree signed on 21.09.2006, in connection with Title (E) Suit No. 7/1999
Gopal Swami @ Gopal Goswami ... ... ... DEFENDANT/PETITIONER
- VERSUS-
1. Tara Chand Jaiswal;
2. Prem Chand Jaiswal;
3. Raj Kumar Jaiswal ... ... ... PLAINTIFFS/ OPPOSITE PARTIES
For the Petitioner : Mr. Pandey Neeraj Rai, Advocate.
Mr. Rohit Ranjan Sinha, Advocate.
For the O. Parties : Mr. A.K. Sahani, Advocate.
PRESENT
HON'BLE MR. JUSTICE D.N. UPADHYAY
C.A. V. On 21/01/2014 PRONOUNCED ON 05/03/2014
D.N. Upadhyay, J This Civil Revision has been directed against the Judgment dated
01.09.2006, passed by Munsif, Bokaro and Decree signed on 21.09.2006, in connection with Title (E) Suit No. 7/1999, whereby the suit filed by the Plaintiffs/Opposite Parties has been decreed with cost against the Defendant/Petitioner.
2. The case of the Plaintiffs/Opposite Parties is that they are rightful owners of a land and building standing on Plot No. 5299, area measuring 16 Decimals under Khata No. 503, Mauza - Chas, P.S. - Chas, District - Bokaro more fully described in Schedule-A of the Plaint. The land was initially recorded in the name of maternal grandfather of the Plaintiffs in the last cadastral survey records of right and after his death, mother of the Plaintiffs inherited the same being his sole legal heirs and successor and after her death, the Plaintiffs inherited the said property and they have been enjoying peaceful possession over the same.
The Defendant was inducted as a tenant by Plaintiff No. 2 - Prem Chand Jaiswal in a shop room measuring an area of 10.6' x 21' and one small room having asbestos roof area of 6' x 17' just at the back of said shop room, more fully described in Schedule-B of the Plaint, which is part of Schedule-A premises, on a monthly rent of Rs.300 per month besides electricity charges payable on 1st day of each succeeding English calendar CIVIL REVISION NO. 99 OF 2006 2 month by virtue of an unregistered agreement dated 10.06.1977 and later on with consent of the Defendant, monthly rent was enhanced from Rs.300/- to Rs.500/- per month. The rent of February, 1999 was paid by the Defendant/Petitioner to the Plaintiff No. 2 on 5th March, 1999.
Schedule-B premises was given to the Defendant for running a business but he had kept the said premises closed permanently for more than 4½ years prior to filing of the Suit and due to that no periodical repair/ maintenance was done as a result, the tenanted premises got damaged and the collapsible shutter gate got broken at places.
The Plaintiff No.2, being member of the Joint Hindu Family and having joint possession over Schedule-A property of the plaint, reasonably required the tenanted premises (Schedule-B) under occupation of the defendant for the use, occupation and benefits of his two nephews namely Shri Manoj Kumar Jaiswal and Binod Kumar Jaiswal, both sons of Plaintiff No. 1 for doing business of electronics and electrical goods since they are sitting idle. The Plaintiffs have got sufficient funds to start and establish the business for the benefits of his nephews and thus required the Schedule-B premises for their own and personal use. The Schedule-B premises were also considered to be proper and convenient and advantageous to start said business of electronics and electrical goods. It is also contended that the Defendant had kept Schedule-B premises under lock for more than four years and he has started his business of Sweet Meat near Marwari Dharamshala, Chas More and he is badly engaged in that business.
The Defendant has let out his house situated in front of Chas Gurudwara in which Khalsa Hotel is running. He has stopped paying monthly rent for the tenanted premises since March, 1999. The Plaintiffs have requested the Defendant, times without number for payment of arrears of rent and also for handing over the vacant possession of Schedule-B premises as it was required for their personal need for providing business to the two nephews but the Defendant has not conceded the request. He neither paid arrears of rent nor vacated the Schedule-B premises and hence on the ground of personal necessity, Suit was filed with a prayer that Decree may be passed in favour of the Plaintiffs against Defendant for khas vacant possession and the Defendant CIVIL REVISION NO. 99 OF 2006 3 be directed to handover vacant possession of the suit premises, Decree for costs and other relief/ reliefs, the Court may deem fit in the eyes of law.
3. The case of the Defendant in brief is that there is no cause of action for the suit and it is barred by Law of Limitation and waiver. The Defendant has been paying monthly rent in time but no rent receipt was ever issued by the Plaintiffs. He has further made out a case that he has been doing business in Schedule-B premises and it is not closed, as alleged by the Plaintiffs. The periodical repair is also being done from time to time and he never stopped payment of monthly rent. It is contended that the monthly rent was regularly paid personally to the Plaintiffs at the rate of Rs.500/- per month and it was paid up to may, 1999. Thereafter, the Plaintiffs refused to receive the rent and therefore, the Defendant started sending rent through Money Order since July, 1999. As a matter of fact, the Hotel near Dharamshala More, Chas is being run by the son of the Defendant independently and he has nothing to do with the said business. He has never made commitment to vacate the tenanted premises nor it is required for starting business for the two nephews of the Plaintiffs. As a matter of fact, the Plaintiffs are trying to create a ground of personal necessity with a view to evict the Defendant from the suit premises.
The Plaintiffs have got eight shops near their house at Mahavir Chowk and two nephews namely Manoj Kumar Jaiswal and Binod Kumar Jaiswal are already engaged in the business of Sweet Meat and medical goods and they are not unemployed. The Plaintiffs have filed the suit on false and fabricated grounds.
4. On the basis of pleadings of both the parties, the learned Munsif has framed issues and after recording evidence and considering documents, decreed the suit with costs in favour of the Plaintiffs and against the Defendant and hence this revision.
5. The Defendant has challenged the impugned Judgement and decree on the ground that it is highly erroneous, based on surmises and conjectures without being supported by evidence and the learned Munsif has failed to scrutinise the relevant facts before coming to the conclusion. The presentation of plaint was under Section 11(1)(c) read with Section 14 of the Bihar Building (Lease, Rent and Eviction) Control, Act, 1982 and therefore, the learned Munsif has wrongly considered the issue of payment CIVIL REVISION NO. 99 OF 2006 4 of rent. The findings of learned Munsif is bad in law and he has failed to consider personal need and bonafide requirement of the persons concerned. The two nephews for whose cause suit was filed, did not come before the Court to depose about their need. The learned Munsif has failed to appreciate the evidence that actually the Plaintiffs/Opposite Parties are in a position to open a shop of electronics and electrical goods or not. No issue on the point as to whether partial eviction of the Defendant from the suit premises will meet the requirement or not, was framed and as such, the findings given by the Court without framing issue is not only erroneous but against the mandatory provisions contained under the provisions of Section 11(1)(c) read with Section 14 of the Bihar Building (Lease, Rent and Eviction) Control, Act, 1982. The learned Munsif has wrongly exercised jurisdiction without complying with the mandatory provisions of law contained under the Bihar Building (Lease, Rent and Eviction) Control, Act, 1982 [Hereinafter referred to as 'Act' in short] and therefore, the impugned Judgment and Decree are liable to be set aside.
He has relied on the Judgement reported in 2001(4) PLJR 488 [Md. Jahangir Vs. Smt. Kirti Devi (relevant para-6); AIR 1994 SC 489 [Krishna Murari Prasad Vs. Mitar Singh (relevant at para-3 and 4)]; 2001(2) PLJR 837 [Bimal Kishore Gupta Vs. Smt. Beena Devi & Ors.] and AIR 2003 SC 1905 and submitted that the case is required to be remanded for the purpose of deciding the issue whether partial eviction will fulfil the requirements of Plaintiffs or not.
6. The main point raised by the Defendant is that the Plaintiffs have failed to prove that the building is reasonably and in good faith required by them for their own occupation or for the occupation of any person for whose benefits the building is held by the landlord and the learned Munsif has failed to discharge the duties cast upon him under the proviso to Section 11(1)(c) of the Act. No issue was framed to decide whether reasonable requirement of the plaintiffs can be satisfied by partial eviction.
To answer the point raised by the petitioner, I have gone through the impugned Judgement, lower court record and the evidence adduced from both sides. I have also carefully examined the provisions contained under Section 11(1)(c) proviso of Act. The plaintiffs are landlords and the defendant was inducted as a tenant in the suit premises, is not denied. So CIVIL REVISION NO. 99 OF 2006 5 the relation of landlord and tenant between the plaintiffs and the defendant is admitted.
There is some dispute with regard to payments of rent between the parties. The plaintiffs say that it was paid up to February, 1999 whereas defendant says it was paid up to May, 1999 and thereafter, rent was rendered through Money Orders from the month of June, 1999. Since the question of arrears of rent has not been decided nor the ground of defaulter has been discussed, it is not needed to examine those questions in this revision application.
7. The suit was filed by three plaintiffs namely Tara Chand Jaiswal, Prem Chand Jaiswal and Raj Kumar Jaiswal, all sons of Late Shitla Prasad Jaiswal and the suit premises reasonably and in good faith, was required for providing business of electrical goods and electronics to Manoj Kumar Jaiswal and Binod Kumar Jaiswal, who are none else but the sons of plaintiff no. 1. It is disclosed in the plaint that the property under Schedule-A of the plaint is jointly owned and possessed by all the three brothers who are plaintiffs in the suit.
The evidence of P.Ws. - 3 and 4 is clear that aforesaid two sons of plaintiff no. 1 are sitting idle and the suit premises - Schedule-B property is required to be handed over to them for starting business of electronic and electrical goods. It is also contended that the plaintiffs by caste and occupation, are businessmen and they are having sufficient funds to get those two persons of their family engaged in said business. It was argued that those two unemployed sons of plaintiff no. 1 have not come before the Court to support the contention made in the plaint and therefore, the plaintiffs have failed to prove the ground of personal necessity as required under Section 11(1)(C) of the Act.
I do not think that such argument is tenable in the eyes of law. In the preceding paragraphs, I have stated that the plaintiffs have admitted that the entire property is being jointly owned and possessed by them and therefore, they have every right to provide engagement to their ward by allowing them to use said property. In this connection, I feel it desirable to quote Section 11(1)(C) of the Act, which reads as under:-
"11. Eviction of tenants. - (1) Notwithstanding anything contained in any contract or law to the contrary but subject CIVIL REVISION NO. 99 OF 2006 6 to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds, -
(a) ... ... ...
(b) ... ... ...
(c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord:
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 hence forth constitute the building within the meaning of clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under Section 5."
The later part of Section says or "for the occupation of any person for whose benefit the building is held by the landlord" .
Since Manoj Kumar Jaiswal and Binod Kumar Jaiswal who are sons of plaintiff no. 1 and the property is admittedly in the joint occupation of the family, they have every right to occupy the same and if the suit premises is reasonably and in good faith required for the use of those two sons of plaintiff no. 1, requirement of Section 11(1)(c) is fulfilled and it is being proved and rightly decided by the learned Munsif in favour of the plaintiffs.
8. I have already supported the findings of the learned Munsif in the preceding paragraph by referring the evidence and documents but again I would like to mention certain facts in support of preceding findings.
The tenanted premises was not in use and it was put under lock since prior to the date of filing of the suit. The disagreement between the plaintiffs and the defendant with regard to period from which the shop was not in use, is appearing in their statement. According to defendant, it was closed for last two years whereas the plaintiffs say it was closed for 4 - 5 years.
CIVIL REVISION NO. 99 OF 2006 7 The plaintiffs have stated that defendant is running Sweet Meat shop near Dharamshala More which is not denied by the defendant but he says that it is being run by his son and he has no concern with the said business. Further version of the plaintiffs that the defendant has given his own building on rent in which Khalsa Hotel is being run, is not denied. The admitted factual situation which appears from the record is that the suit premises was not in use for last two years prior to the date of institution of suit and the defendant was engaged in another business whereas the plaintiffs have filed suit for evicting the defendant from the suit premises on the ground of personal necessity and it is stated that two sons of plaintiffs are sitting idle and to provide them business of electronic goods, the said premises is required. If the evidence adduced from both sides is evaluated in this context, without any hesitation it can be observed that the requirement of the plaintiffs is genuine and they need the premises in good faith for their own use. Therefore, learned Munsif has rightly considered the issue in favour of the plaintiffs.
9. Learned counsel for the petitioner has cited Judgement reported in AIR 2003 SC 1905 on the point that the plaintiffs have adduced evidence beyond the pleadings and therefore, that part of evidence is to be excluded from any consideration. He has referred the evidence of P.Ws.-3 and 4 (Para-10 and 11 respectively) in which those two witnesses have stated that partial eviction of the defendant will not serve the purpose.
First of all I would like to observe that no objection was raised by the defendant when that statement was given by those two witnesses and, therefore, he cannot raise that issue in this revision application.
10. The most crucial point which is appearing in my mind in a suit filed under Section 11(1)(c) of the Act is that, it is never expected that plaintiffs who want the tenanted premises back for his own use, shall make a pleading for partial eviction. Likewise, it is also not expected from the defendant that he would give written proposal for partial eviction in the written statement. If the plaintiffs/landlord as well as defendant/tenant will readily agree to the cause of each other and would agree for the partial eviction to satisfy need of each other, there will be no litigation and no cause of action for filing a suit will arise. I think this kind of situation was also in the mind of law maker and considering that aspect the duty has CIVIL REVISION NO. 99 OF 2006 8 been cast upon the court by inserting proviso to Section 11(1)(c) which reads 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 hence forth constitute the building within the meaning of clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under Section 5."
The contention appearing in the proviso is clear where the Court thinks that 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 decree accordingly. To me, the proviso can be separated in four parts:-
(i) The Court has come to a conclusion that plaintiffs have reasonable requirement of such occupation.
(ii) The requirement of plaintiffs 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.
(iii) The tenant agrees to all such occupation.
(iv) The Court shall pass a decree for partial eviction and fix fare rent for the part of the portion which would remain in occupation of the tenant.
If we read the proviso of Section 11(1)(c) of Act in the manner indicated above, the duty cast upon the Court is to perform his part of obligation indicated under headings (i), (ii) and (iv). The most important part is wish of the tenant indicated under the heading (iii) i.e. "If the tenant agrees to such occupation". Therefore, choice of the tenant is of prime importance and the Court can pass decree for partial eviction only if the tenant agrees for it.
11. In the instant case, I have also gone through the evidence of defendant D.W.-3, para-29, which read as under:-
"VIVADIT DUKAN DUS FEET CHAURI HAI. ISME DO DUKAN KARNA SAMBHAV NAHIN HAI. ISS SE NA TO MUJHE LABH HOGA NA HIN WADI KO".
CIVIL REVISION NO. 99 OF 2006 9 Thus it is clear from the evidence of plaintiffs as well as defendant that partial eviction was not possible and none of them were agree for the same and considering this part of evidence of the parties, the learned Munsif has rightly held that partial eviction is not possible and decreed the suit for the entire premises under Schedule-B in favour of the plaintiffs and directed the defendant to vacate the same.
12. In a suit filed under Section 11(1)(c) of the Act, if the Court would not consider the proviso in right perspective, each and every case is to be remanded to decide the issue of partial eviction. So far as question of partial eviction is concerned, the law is well settled that the landlord cannot be saddled with onus of proving as to whether bonafide requirement can be substantially satisfied by order of partial eviction as once the landlord has proved the bonafide need of the premises, onus shifts on the tenant and that is what the later part of the proviso speaks about. This view has well been taken by a Division Bench of the Hon'ble Patna High Court in the case of M/s. Bata India Ltd. Vs. Dr. Md. Qamruzzama reported in 1993(1)P.L.J.R. 97, and it was held that it is the tenant who has to express his readiness and willingness for part occupation of the premises and to show that plaintiffs' need can be substantially satisfied by evicting the defendant from only part of the premises and allowing him to continue in occupation of rest of it.
13. The question of partial eviction has been decided by the trial court and the circumstances under which this mandatory obligation envisaged under proviso of Section 11(1)(c) of the Act is to be discharged by a Court have been indicated in the preceding paragraphs and therefore, remand of the case to decide this issue is not at all needed. In the facts and circumstances, I do not feel it necessary to deal with all the Judgements cited by the petitioner's counsel.
In the result, the revision application stands dismissed.
(D.N. Upadhyay, J.) Jharkhand High Court, Ranchi.
Dated . March 5, 2014 RC/AFR