Patna High Court
Jainarayan Lal vs Laxmi Devi And Ors. on 21 July, 1999
Equivalent citations: AIR1999PAT216, AIR 1999 PATNA 216, (1999) 3 PAT LJR 437 (1999) 3 BLJ 332, (1999) 3 BLJ 332
Author: Sudhir Kumar Katriar
Bench: Sudhir Kumar Katriar
ORDER Sudhir Kumar Katriar, J.
1. The petitioner is the defendant in a suit for eviction on the ground of personal necessity. This civil revision application is directed against the judgment dated 24-9-98 passed by Mr. Adya Sharan Choudhary, Munsif, Jamui, in Title Eviction Suit No. 8/92 (Laxmi Devi v. Jainarain Lal) whereby the suit has been decreed on the ground of personal necessity of the premises in question. The defendant has been directed to vacate the suit premises and give possession to the plaintiff within two months from the date of judgment failing which he will be liable to be evicted by the process of the Court.
2. According to the plaint, Ram Prasad Lal, the original plaintiff had let out the suit premises consisting of two rooms to the defendant (Opp. Party herein), in 1975, orally at the rate of Rs. 151/ - per month for commercial purposes. The two rooms measure 11.6" x 9'.2" and 9' x 7'. The demised premises has a Verandah in front of it measuring 10' x 3.3", used as a common passage and access to the rooms, as it appears from the report and the sketch map prepared by the Pleader Commissioner (Annexure-4). The parties had concluded a deed of tenancy on 14-8-76. The defendant continued to pay rent at the aforesaid rate up to May 1991, and has completely stopped payment of rent ever since June 1991 till date. Ram Prasad Lal instituted the present suit on 16-7-92 on the ground of personal necessity, namely, he has eight sons and two daughters, two of whom are not well educated and have not settled in life. The suit premises is needed to start a business for them. The suit was decreed on contest by the aforesaid judgment dated 24-9-98, and the defendant has been directed to vacate the premises. 3. Mr. Asghar Hussain, learned counsel for the petitioner, submitted that the suit was instituted by Ram Prasad Lal who died on 26-9-98 i.e. during the pendency of the suit and was substituted by his heirs. The trial Court has committed a serious error apparent on the face of the record, inasmuch as the trial Court failed to take into account the pendente lite development. The suit was instituted on the ground of personal necessity , of Ram Prasad Lal which came to an end with his death, an aspect of the matter completely overlooked by the trial Court. In fact, it was Ram Prasad Lal who had examined himself in support of the plaintiffs case and none of the sons have examined themselves. The trial Court has examined the question relating to personal necessity of the substituted heirs without amendment of the plaint. Learned counsel next submitted that there is ample material on record to establish that the plaintiff has two vacant rooms in the Purani Bazar area of Jhajha township, i.e. the same town which can be easily used by the plaintiff to set up their own business. The deliberate refusal on the part of the plaintiffs to occupy the two rooms strikes at the root of the plaintiffs' case, and clearly establishes that requirement is not bona fide. The suit is only a ploy to evict the defendants. Learned counsel has relied on the averments made in paragraph 22 of the civil revision application and a portion of the deposition of D.W. 6 (Jainarain Lal) who is the defendant himself. Learned counsel has relied on the following reported judgments in support of the proposition that the suit should not be decreed on the ground of personal necessity if the suit property is not needed bona fide :
(i) (1986) 4 SCC 736 : (AIR 1987 SC 741), (Amarjit Singh v, Khatoon Quamarain)
(ii) 1985 Pat UR (CR) 80, (J. C. Roy v. Halwant Sahay)
(iii) (1998) 1 Pat LJR 732, (Umesh Kumar Varma v. Chandrika Pd. Singh)
(iv) (1998) 3 Pat UR 541, (Sachidananda Prasad v. Smt. Savitri Sahay)
3.1. Learned counsel lastly submitted in the alternative that the defendant is ready to accept the rear room measuring 9' x 9'. 1" by way of partial eviction.
4. Mr. Subhro Sanyal, learned counsel for the opposite parties, submitted that the matter is concluded by findings of facts. The trial Court has clearly held that two sons of the original plaintiff are unemployed and really need the demised premises to start theirown business. He submitted that the original plaintiff had clearly averred in the plaint that the suit premises is needed to settle his two sons who are unemployed. Therefore, the trial Court has committed no error in examining the question of personal necessity of the substituted heirs and hence no amendment of the plaint was needed. Learned counsel next submitted that the trial Court has recorded a clear finding of fact that no other premises of the plaintiff is vacant in the town of Jhajha. He further submitted that it is manifest from the materials on record and has been clearly found by the trial Court that the plaintiffs need the suit premises bona fide. He lastly submitted that the trial Court has recorded a clear finding of fact that partial eviction will not serve the purpose of the plaintiff. He has also invited my attention to paragraph 19 of his supplementary counter-affidavit which is to the effect that the defendant has not paid rent of the suit premises since June 1991. Paragraph 19 is set out hereinbelow for the facility of quick reference:--
"19. That the defendant petitioner have not paid rent of the suit premises since June 1991. Even after the order of Hon'ble Court passed on 18-2-99 in this civil revision staying further proceeding in Execution Case 7/98 the petitioners have not deposited the arrears and or the current rent of the suit premises."
5. Having considered the rival submissions, this Court is of the view that this civil revision application has to be dismissed. Learned counsel for the petitioner is not right in his submission that the original plaintiff had instituted the suit on the ground of personal necessity of his own self and the need of which came to an end with his death on 26-9-98. It is manifest from a plain reading of the plaint (Annexure-1) that the original plaintiff had clearly averred in the plaint that four out of his eight sons are unemployed and he intends to set up a business for two of his unemployed sons, namely, Rajendra and Ravindra after the suit premises is available to 'them. Paragraph 5 of the plaint is relevant in the present context and is set out hereinbelow for the facility of quick reference :--
"5. "That the unemployed sons are Surendra, Hari Kishore, Rajendra and Rabindra and the plaintiff is also not doing anything. The plaintiff wants to open and start a business of Kirana goods in the suit premises to maintain his life and also wants to engage the unemployed sons Rajendra and Ranbindra.
7. That the plaintiff has got the suit premises reasonably and in good faith required for his own occupation and also for the occupation of his own unemployed sons.
8. That there is no other means for his sons to maintain the life of his big family in this hard period."
5.1. This Court is, therefore, convinced that in view of the statement made in the plaint. The death of the original plaintiff did not cause any change in the nature or the circumstances of the case. Therefore, amendment of the plaint is not necessary. This Court is of the view that the trial Court did not err in examining the case of personal necessity of the substituted heirs.
6. Learned counsel for the petitioner (defendant) next contended that the suit for ejectment on the ground of personal necessity is not a bona fide requirement, and is -a mere ploy to evict the defendant to fetch higher rent from the new tenant. The plaintiff has in his possession two vacant rooms in the main commercial area of the township of Jhajha known as Purani Bazar which will well satisfy the requirement of the plaintiff. He relies on paragraph 22 of the civil revision application, Which, inter alia, states that--"...........As a matter of fact the plaintiff has several shops which he has let out on rent to different tenants over plot No. 1627 and 1629. Besides these shops, the plaintiff holds and owns another house with two shops at Purani Bazar, Jhajha bearing holding No. 334 under ward No. 3 which have also been let out by the plaintiff to Liladhar Mishra and Mahesh Mishra". He has also invited my attention to paragraphs 10, 11, 12 and 18 of the deposition of D.W, 6 (Jainarain Lal, the defendant), and has placed particular emphasis on paragraph 18 which is as follows :--
^^18- eSa ugh crk ldrk fd xqytkjh yky dks fn;k x;k edku igys jgu Fkk rFkk eqdnek ls NqMok;k x;k A iqjkuh cktkj okys edku esa fdjk;snkj jgrs gSa rFkk 2 nqdku [kkyh gS og eq[; cktkj ls 1@2 fd-eh- ij gS A** 6.1. This Court has no hesitation in rejecting the contention, inter alia, for the reason that the counsel for the petitioner sought to read the contents of paragraph 18 of the deposition in isolation. The entire evidence of D.W. 6, apart from other materials on record, has to be read as a whole. D. W. 6 has himself deposed in paragraphs 10, 11 and 12 of his deposition that other houses of the plaintiff in the township of Jhajha are occupied by other tenants. The contention of the petitioner also overlooks the basic fact that the original plaintiff has left behind his widow, 8 sons, 2 daughters, and each one of them would be entitled to one share each. How much each will get. Not much, I suppose. This has further to be read with the evidence on record that four of his sons are unemployed. On scrutiny of the entire materials on record, this Court fully agrees with the finding of fact recorded by the trial Court to the effect that no premises of the plaintiffs in the township of Jhajha is vacant. All of them are occupied by different tenants, none of which was vacant at the time of institution of the suit, nor became vacant during the pendency of the suit.
7. At this stage, I must deal with the reported judgments relied on by the learned counsel for the petitioner. In Amarjeet Singh's case (AIR 1987 SC 741) (supra), the Supreme Court had found that the landlady did not occupy a portion of her house falling vacant during the pendency of the eviction proceeding in view of its higher rental value and insisted on eviction of tenant of the other portion of the house for her own residence, the landlady was held to have had access to suitable residential accommodation and, therefore, was not entitled to eviction. In J. C. Roy's case, (1985 Pat LJR NOC (CR) 80) (supra), the original plaintiff had instituted the suit fat eviction from a shop room on the ground of personal necessity, for opening a commercial institute by his son-in-law who was staying with him for long. The suit was dismissed, but was allowed in appeal. The tenant-defendant appealed before this High Court during the pendency of which the original plaintiff died and was substituted by his only daughter who also died and was substituted by her daughters and husband (for whom originally the shop was sought as personal necessity). During the pendency of the appeal before the High Court, a new shop was constructed by the substituted heirs and was let out to an outsider on higher rent. The tenant's appeal was allowed on the ground that the new shop could have been used by the respondent and this shows that there was no bona fide personal necessity. In Umesh Kumar Verma's case (1998 (1) Pat LJR 732) (supra), the landlord was insisting that his son-in-law should start a clinic in the suit premises. This Court held that the requirement was not bona fide and in good faith and there was no element of need because suitable alternative accommodation was available to the landlord. In Sachidanand Prasad's case (1998 (3) Pat LJR 541) (supra), this Court had found that the landlord owned three, more tenanted premises apart from the suit property, which were evicted prior to and during the pendency of the suit and were let out again at increased rent. In such circumstances, this Court held that there was no bona fide personal requirement.
7.1. Thus the ratio of the four reported judgments uniformly is that if it is found by the Court as an issue of fact that the landlord-plaintiff had, either before the institution of the suit or during the pendency of the suit or the proceeding in the higher Court, vacant premises suitable for the requirement of the plaintiff and had refused to occupy the same to meet his personal necessity, then the conclusion is irresistible that the effort to evict the tenant was not to meet his bona fide personal requirement, but a mere ploy to evict the tenant. I am afraid, the ratio of the four reported judgments do not apply to the facts and circumstances of the present case. As has been found by the trial. Court and affirmed by this Court hereinabove, no premises of the plaintiffs in the township of Jhajha was vacant to satisfy the personal necessity of the plaintiffs. In such circumstances, I have no hesitation in holding that the ratio of the four reported judgments relied on by the learned counsel for the petitioner is inapplicable to the facts and circumstances of the present case.
8. This Court is thus convinced that the requirement of the plaintiff to set, up business for two of the unemployed sons of the original plaintiff is bona fide. In that view of the matter, it would not be in the interest of justice to allow the defendant to dictate as to which property of the plaintiff will cater to the needs of the, plaintiff. It is entirely for the plaintiff to choose from amongst the occupied premises in possession of different tenants for eviction to set up their own business. Explanation II to Section 11 of the Act lays down that the landlord has an inexorable, statutory right to make the selection of premises for eviction. The same is set out hereinbelow for the facility of quick reference.
"11. Eviction of tenants.-- (1)....................
Explanation II -- Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference."
This Court had the occasion to consider the provisions in the case of Vishwanath Sah v. Vidyanand Verma, 1988 BLJ 171, wherein a learned single Judge of this Court held that the landlord has an unassailable right to choose the premises if he has more than one from which he desires to seek eviction. This Court has held in the judgment reported in AIR 1982 Patna 190 ( Tip Top v. Indramani Devi), and 1983 Pat LJR 705 Prem Prakash Sah v. Bhadarmall Sharma), that "once landlord establishes his personal necessity then the law give him the choice of selection of the most suitable accommodation which may suit him according to the facts of each case." In the two reported judgments, this Court had found that the alternative accommodation was vacant and available to the landlord, but was not found suitable or sufficient to meet the personal requirement of the landlord and unrestricted choice of selection was given to him. In the present case, the landlord has a much better case, inasmuch as it has been found that no vacant premises is available to the tenant (sic). Therefore, the choice of selection is on a much better, footing in the present case.
9. I must at this stage consider the defendant's contention regarding partial eviction. Learned counsel submitted that if the rear room measuring 9' x 7' is allowed to be retained by the defendant, then the needs of the plaintiff as well as the defendant will be met. I am unable to accede to the submission of the petitioner. There are materials on record to establish that partial eviction of the defendant from the suit premises will not serve reasonable requirements of the plaintiff. The trial Court has recorded a clear finding of fact in the following words in paragraph 9 of the impugned! judgment:-- ' "I think 2 rooms for opening of Kirana shop is not more than bona fide requirement. Moreover, partial eviction of the suit premises will not be convenient for the defendant tenant. Before passing adecree of partial eviction of the suit premises it is essential to look into that landlord and tenant both can conveniently occupy the same house as 2 units but in circumstances of this case the partial eviction i.e. the eviction of the defendant tenant from one room only, neither fulfil the reasonable requirement of the plaintiff landlord nor it will prove convenient to the defendants. Moreover, Ext. 5 clearly shows that both the rooms of the suit premises are not side by side towards road rather one room is on the road side and the other is on the back of the road side room. In such condition if the room which is situate at the back of the room of the road side is left from eviction it will not fulfil any purpose of the defendant rather it will cause hardship and inconvenience to the defendant/ tenant. Therefore, I am of the view that under the circumstances of this case partial eviction will neither fulfil the reasonable requirement of the plaintiff landlord nor it can be proved convenient for the defendant tenant. Therefore, I find that partial eviction is not possible in the circumstances of this case."...............
9.1. This Court fully agrees with the finding of facts recorded by the trial Court Partial eviction in the facts and circumstances of the present case will serve no purpose to either of the parties. Apart from the fact that two rooms are small in size, there appears to be the problem of access to the rear room. It appears that access to the rear room is internally only.
10. This Court is thus of the view that the plaintiffs have been able to prove their case of personal necessity. The plaintiffs need the suit premises bona fide to set up their own business. This Court is convinced that partial eviction in the facts and circumstances of the case is not possible.
11. In the result, this civil revision application is dismissed. The impugned judgment dated 24-9-1998, passed by the learned Munsif, Jamui, in Title Eviction Suit No. 8 of 1992 is hereby upheld.