Patna High Court
Daujee Agrawal vs Kanhaiya Lal Sarwgi And Anr. on 11 May, 1988
Equivalent citations: 1990(38)BLJR871
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This revision application is directed against the judgment dated the 31st August, 1987, passed by Sari Md. Mustaquim, Munsif, 1st. Court, Saran, Chaapra, in Eviction Suit No. 46 of 1986, whereby and whereunder the said learned court granted a decree for eviction in favour of the plaintiff-opposite party and as against the defendant-petitioner on the ground of existence of personal necessity.
2. The facts of the case lie in a very narrow compass.
3. The plaintiffs-opposite party admittedly is the owner of a shop-room being part of Holding No. 170 appertaining to Ward No. 2, Circle No. 14 situate in Mohalla Sahebganj in the town of Chapra. The said shop premises has been described in details in the Schedule appended to the plaint as also a copy of the plan annexed thereto. The petitioner in this Civil Revision application has also annexed a copy of the plan which was prepared for addition and alteration to the existing house and shop of opposite party No. 2. The plaintiffs in the plaint stated that their residential house is situate in the northern part of the holding No. 170 of Ward No. 2, Circle No. 14 situated in Mohalla Sahebganj and in the southern part thereof there are two big rooms attached to each other on the ground floor in which the defendant is a tenant. The plaintiffs have further asserted that contiguous west of the aforementioned shop there is a Gali leading to the residential house of the plaintiffs. In the first floor, there exists a room which is used by the plaintiffs as an office. It is admitted that the defendant-petitioner was a monthly tenant in respect of the premises on a monthly rental of Rs. 250.
4. According to the plaintiffs, the said shop premises was reasonably and bona fide required by the plaintiffs as the plaintiff No. 2 intended to start his own cloth business. It is admitted that the defendant carries on his cloth business in the premises under the name and style of "Agrawal Cloth Stores". The plaintiffs have alleged that the defendant had already taken a shop on lease in Durga Market, Gurhati, Sahebganj, in which he has been running his cloth business. The plaintiffs have further stated that they previously used to work as agents for the mill owners for which no shop room was required and they could carry on their job from their office which was situated in the first floor but, as they intended to start a cloth business also, the shop premises are most suitable for their purpose.
5. On the other hand, the defendant appeared in the aforementioned suit and obtained leave of the Court to contest the same. Thereafter, the defendant filed his written statement, inter alia, contending therein that the plaintiffs had got no personal requirement for the shop room in question. According to him the plaintiffs, work as agents of several cloth merchants, cloth producers, cloth Mills on commission basis and for that purpose no shop room is required by the plaintiffs. It has further been assorted that the plaintiffs have also constructed their own market by the side of the suit premises in the same holding in which they can start business of their choice, if really they wanted to start any business.
The defendants have denied that they have got any shop room in Durga Market Purani Gurhati on lease. The defendants have farther stated that the plaintiff No. 1 is aged about 80 years and in view of his advance age ho cannot handle cloth business and, as such, the plaintiff No. 2 may confine his business activities with regard to agency business and there is absolutely no necessity to start a fresh business.
6. Before the learned court below both the parties adduced their respective evidences and the learned court below thereafter came to the conclusion that the plaintiffs had been able to prove their cases of personal and bona fide requirement in respect of the suit premises and, as such, the suit was decreed.
7. Mr. S.C. Ghosh, learned senior counsel appearing on behalf of the petitioner, has ratted two fold contentions. According to him, the requirement of the plaintiff was not such so as to require decree for eviction of the defendant. It was alternatively submitted that the plaintiffs' need, if any, may be substantively satisfied by evicting the defendant from a portion of the suit premises.
Mr. Ghosh, in this connection, has placed strong reliance upon a decision of the Supreme Court in the case of Smt. Sushila Devi and Ors. v. Avinash Chandra Jain and Ors. and some decisions of this Court in Gulab Chand Prasad v. Budhwanti and Anr. 1985 PLJR 622 ; Dr. Hemchandra Jha v. Smt Anjana Lal 1987 PLJR 582 and Bihar Alloy Steels Limited v. Hari Shankar Worah (Properties) Limited and Anr. 1987 PLJR. 868.
8. From a perusal of the judgment of the learned court below, it appears that the plaintiffs have got their residential houses at two places, i.e., at Katra as also at Sahebganj where the suit premises is situated. The plaintiffs have proved that there had been a partition by and between the plaintiff No. 1 and his brother and after the said partition, the plaintiffs have been residing in the suit premises.
9. According to the learned court below, the above contention stands corroborated from Ext. 6 which is said to be a mutation order, dated the 14th April, 1981, whereby and whereunder the name of the plaintiff No. 1 was ordered to be mutated in respect of the holding in question. The learned court below has further come to the conclusion that in any event as per the defendant's own admission, the plaintiffs are residing in their house situate in Sahehganj, i.e., in the holding in question. The learned court below has further found that there is only one room in the first floor of the building which is being used by the plaintiffs for their business relating to the agency of various cloth mill owners. The learned court below further came to the conclusion that even assuming that both the plaintiffs i.e., the plaintiff Nos. 1 and 2, are jointly carrying on the said agency business as they have acquired much experience with regard thereto and, as such, they can start a cloth business also of their own, particularly, in view of the fact that the plaintiffs are now acquainted with various cloth merchants, mill owners and, as such, it would be beneficial and convenient to them if they carry on a cloth business of their own.
10. The learned court below has further held that even assuming that the plaintiff No. 2 had been assisting his father in his agency business that does not mean that he cannot expand hit business. The learned court below has further come to the conclusion that one need not be unemployed before he requires the premises for starting a business or one must be absolutely shelterless before a suit for eviction on the ground of personal necessity can be filed.
In this connection, the learned court below has relied upon a decision in the case of Kedarnath Bohra and Anr. v. Md. Safiullah and Anr. . The learned court below has further relied upon a decision of this Court in the case of Mrs. Veena Rani and Ors. v. Mrs. Ishrati Amanullah and Anr. 1985 PLJR 390, which is an authority for the proposition that personal necessity does not mean that the landlord must be in dire need of the house before a decree for eviction can be passed on the ground of personal necessity. The leaned court below on the basis of the aforementioned decisions has held that the plaintiffs have a bona fide requirement for opening of a cloth business,
11. So far as the other points raised on behalf of the petitioner are concerned, the learned court below negatived the case, inter alia, on the following grounds, i.e., (a) the plaintiffs have not constructed any market of their own and only the shop premises in the holding in question are available for starting of a business, (b) the constructions which are being carried out are meant for residential purposes and net for the purpose of opening of a market.
12. In this connection, it may be mentioned that a Pleader Commissioner was also appointed for holding local inspection in respect of the premises in question. The report of the Pleader Commissioner has been marked before the learned court below as Ext. 5. The plan which was sanctioned by the Municipality was marked as Ext. A. As mentioned hereinbefore, a copy of the said plan has also been annexed to the revision application.
13. The learned court below upon a comparison of the said map as contained in Ext. A the sketch map given at the foot of the plaint as also the report of the Pleader Commissioner as contained in Ext. 5 came to the conclusion that in the building in question there is only one shop room and one store in the possession of the defendant as a tenant. The learned court below has further held on the basis of the report of the Pleader Commissioner that in the newly constructed buildings, kitchen, bath-rooms, etc., are being constructed which goes to show that the plaintiffs have been constructing their residential house and not a market. The learned court below has further discarded the evidence of the defendant on this point on the ground that the defendant had not entered into the newly constructed premises. The learned court below has referred to other evidence on the record and has come to the conclusion that the defendant has failed to prove that the plaintiffs have been constructing any market whatsoever and, as such, it found that the need of the plaintiffs is genuine.
14. So far as the point relating to partial evidence is concerned, the learned court below has found that there are two rooms and the defendant on his own showing cannot carry on any business if one of the rooms is allotted to him. After taking into consideration the evidence on the record, the learned Court below has come to the conclusion that partial eviction will not serve the purpose of either of the parties.
15. Mr. Ghosh tried to assail the aforementioned finding contending that from the plan as annexed to the civil revision application and which was marked as Ext. A in the court below it would appear that there are three or four rooms which can he utilised for the purpose of carrying on business of the plaintiffs. Mr. Ghosh further submitted that the plaintiff No. 1 being 80 years old it is inconceivable that he would make any contribution to the new business if started by the plaintiffs. The learned Counsel further contended that there is no reasonable requirement so far as the plaintiffs are concerned. With regard to the second ground, Mr. Ghosh submitted that, although the two rooms which are in occupation of the petitioner, if divided room wise, may not serve the purpose of the plaintiffs or the defendant but if the said two rooms are combined together and thereafter the same in divided into two blocks as being the eastern and the western block and, if any of such blocks is given to the defendant the same will serve the purpose of the defendant as well as the plaintiffs.
16. Mr. Ghosh, as mentioned hereinbefore, in this connection, has relied heavily upon the following observations of the Supreme Court in the case of Smt. Sushila Devi and Ors. (supra):
...It betrays complete lack of comprehension of the purpose and object of such rent control legislations and the spirit behind them. While the landlord is entitled to the beneficial enjoyment of his property, the law still insists as a measure of social necessity that the Court should be satisfied as to the genuineness of requirement of the landlord under Section 14(1)(e). It has to keep in view that there is acute shortage of housing accommodation in the metropolitan city of Delhi and therefore unless there is compelling necessity, there can be no order for eviction under Section 14(1)(e) of the Act. The provision contained in Section 14(1)(e) is meant to sub serve a public interest and to strike a just balance between the competing needs of the landlord and the tenant. It is axiomatic that when a landlord applies for eviction of a tenant under Section 14(1)(e) of the Act, there is a duty cast on the Court to consider the question on merits on the basis of the evidence adduced by the parties, Again, there has to be in such Cases an objective determination of the claim of the landlord. It is necessary to emphasize that unlike Section 115 of the Civil P.C. 1908 where the High Court's power of interference in revision touches jurisdiction, the power of the High Court to interfere in revision under Sub-section (8) of Section 258 of the Act is much wider in scope and enables the High Court to satisfy itself as to whether the decision rendered by the Rent Controller on the facts in issue is in accordance with law, that is to say, in accordance with the well-settled principles.
17. The learned Counsel has further drawn my attention to a decision of a Division Bench of this Court in the case of M/s. Bihar Alloy Steels Limited, (supra) and drew my attention to the following:
For disposing of this application, however, we have noticed that while following the procedure specified in Section 14 of the Act, the learned Special Subordinate Judge has failed to take notice of the provision in Clause (c) of Sub-section (1) of Section 11 of the Act. Before a landlord's claim for eviction on the ground of personal necessity is entertained by a court, it is necessary for the landlord to show that the building concerned is required, reasonably and in good faith, for his own occupation or for occupation of a person for whose benefit the building is held by the landlord and also an provided therein 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 tenants to continue occupation of the rest. That the building is reasonably and in good faith required can be determined only by taking notice of the facts pleaded by the parties and even after it is found by the court that the building is reasonably and in good faith required by the landlord, it has a duty to determine whether the reasonable requirement of such occupation will be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest or not. The Legislature has chosen to qualify the word, 'satisfied' by the expression substantially, with a view to keep the interest of the tenant protected by providing occupation to him of the building impart, and granting to the landlord occupation to meet his requirement. It may be that the landlord may feel dissatisfied with the part eviction, yet the court may have to pronounce on such facts that may be placed before it, that their requirement will be satisfied by a part eviction only.
18. The learned Counsel has further drawn my attention to an unreported decision of this Court in Civil Revision No. 92 of 1986 wherein the learned single Judge of this Court has held as follows:
...Albeit the duty of framing an issue is on the court irrespective of the issues which may be framed by the parties and put forth before the court upon which the court has to apply its mind and to recast the issues in its own way for the proper determination of the relevant facts in accordance with law on a particular set of facts and circumstances or not in a particular case. The court must determine the requirement of the landlord and then see that the requirement which the court below finds reasonable substantially satisfies the requirement of the landlord.
19. It is not necessary for the purpose of disposal of this civil revision application to dweel upon in details of the aforementioned decisions, inasmuch as, as mentioned hereinbefore, in the instant case, the learned court below has fully taken into consideration the requirement of law as contemplated under Section ll(1)(c) of the Act.
Mr. Ghosh has not been able to show that there has been either a substantial failure of justice by the learned court below by not taking into consideration all the relevant evidence on the record or it has passed the judgment on an irrelevant and extraneous consideration nor has it been contended by Mr. Ghosh that the learned court below has not followed the procedure contemplated under Section 14(4) of the Act, or therein the well settled principles have not been followed.
20. As mentioned hereinbefore, the learned court below has taken into consideration all aspects of the matter and come to the conclusion that so far the personal need of the plaintiffs in respect of the premises in suit is concerned, the same was bona fide. In my opinion, there is no substance in the submissions of Mr. Ghosh that the plaintiff No. 1 being 80 years old is not in a position to carry on a business. Nothing has been brought on the record to show that the age factor of plaintiff No. 1 is such so as to disable him from carrying on his business. In any event, it is admitted that the business in cloth is intended to be run by the plaintiff No. 2, also.
21. There is no doubt that any entrepreneur would like to expend his business and would further like to take the aid of the experience that has been gathered by him while carrying on a business akin to the one he intends to start. The defendant has accepted that the plaintiffs are carrying on business in the agency of cloth. While so doing the plaintiffs must have acquired some experience in the said business and must have acquired some acquaintances with other wholesale dealers and mill owners. Further, from the report of the Pleader Commissioner, it is evident that the premises which are under construction are meant for residential purposes and not for setting up a market as alleged by the defendant.
22. In the circumstances, in my opinion, the plaintiff have successfully proved their bona fide requirement in respect of the premises in suit.
23. In the case of Gulab Chand Prasad v. Budhwanti and Anr. 1985 PLJR 622, a Full Bench of this Court has held as follows:
...It is well established that once the bona fide requirement or need has been established, it is not the court to probe further in the matter and try to weigh and balance it according to its own pre-conceived notion or through its own peculiar social philosophy.
The Full Bench also quoted with approval a judgment of a learned single Judge of this Court in the case of Kedarnath Bohra and Anr. v. Md. Safiulla and Anr. , which decision was quoted by the learned Court below also.
24. In Krishna Kant Pandey and Anr. v. Suniti Bala Sarkar 1988 PLJR 255, it has been held as follows ... The expression "the building is reasonably and in good faith required" in Clause (c) of Section 11(1) of the Act is, however circumscribed by the words 'occupation of and my conclusion regarding the situation styled by me as 'eco-personal' will remain inconclusive unless the true import of these expressions are found. The word 'occupation', it cannot be disputed, has numerous meanings and wide connotations as also unlimited uses. Some of the meanings and interpretations are: an employment, business, the exercising of any business or office, trade or calling, profession, draft, habitual employment etc. Within the ambit of Section 11(i)(e) of the Act, applying a restricted meaning it is commonly believed that it means the actual physical occupation of the landlord or of such other persons for whose benefit the building is held either for the purpose of residence or trade or vocation.
It has further been held in the aforementioned judgment as follows-
... A landlord is entirely free to exercise his discretion and is always entitled to choose a particular premises for eviction which he feels would satisfy his reasonable requirement. He cannot be guided by the objection of his tenant otherwise. If a landlord has numerous in one building or has several tenanted buildings, unless he has a right to choose he ran never get an order of eviction unless he seeks the eviction of all the tenants, This interpretation cannot be countenanced as valid. The landlord knows his reasonable requirements depending on his necessity and he alone can decide whose and how his object can be achieved.
25. So far is the second question raised by Mr. Ghosh is concerned as discussed hereinbefore, the learned court below has also considered all aspects of the matter fully in para 8 of the judgment.
26. From the record, it appears that the petitioner examined himself as D. W. 8 who, in Para 15 of his evidence has admitted that the eastern side of the shop premises is a passage which is used by the plaintiffs for egress and ingress to their residential house. The said passage, according to the said witness, has nothing to do with the premises in question.
27. Further, as mentioned hereinbefore, the defendant himself stated that if a portion of the premises in question is allotted to either the plaintiffs for the defendant, it will not serve the purpose of either of them. It may also be mentioned that the plaintiffs cannot be forced to make addition and alteration for the purpose of accommodating the tenant. As mentioned hereinbefore in the eastern portion of the premises there exists a passage, which the plaintiffs use for his private purpose, i.e., for the purpose of egress and ingress to his residential house. Such private passage cannot be converted into a public galli, i.e., for the use of customers. In any event, noting has been brought on the records either by way of evidence or otherwise to show that such a measure was also possible to accept the submission of the learned Counsel. Had the defendant taken that point before the court below, it would have been open to the plaintiffs to establish that, in the circumstances of this case, it is not possible to divide the premises in question for accommodation of the defendant by erecting a well from north to south, thus making two separate premises hoeing the eastern side and the western side thereof. In view of the fact that this plea has not been taken by the defendant in the court below nor is there any evidence on the record to this effect, in my opinion, the petitioner cannot be permitted to raise the said question for the first time in a civil revision application and that too without there being any evidence on the record.
28. From the facts aforementioned, it is clear that the learned court below, in his judgment has taken into consideration all the aspects of the matter for the purpose of grant of a decree on the basis of personal necessity as contemplated in Section 11(i)(c) of the Act and, as such, no interference is required to be made in this civil revision application.
29. In the case of Dr. Hemchandra Jha, (supra), a learned single Judge of this Court, while considering the scope of Section 14(8) of the Act, held that this Court might interfere only if it became satisfied that the order was not in accordance with law. This Court in the aforementioned judgment further took into consideration the meaning of 'according to law' and held as follows:
What is meant "according to law" Judgment according to law is not invariably the same thing as judgment according to the merit of the particular case from which the judgment flows. The hall mark of judgment according to law is conformity with a set of rules, Lord Devlin, Lord of Appeal in the book "The Judge". And what is meant by "a set of rules" ? This means rules designed so as to advance justice in a normal case. What are the rules applicable to the present case ? As in this case we are concerned with a suit for eviction from a building filed by a landlord against the tenant besides others the rules which shall apply are Code of Civil Procedure, Evidence Act and the Rent Act. If, therefore, there has been violation of any of the provisions of the procedure law which has resulted in miscarriage of justice or of any mandatory provision of the Rent Act or if the finding is perverse, i.e., not supported by evidence, it must be held that the order impugned is not 'according to law.
30. The decision of the Supreme Court in the case of Smt. Sushila Devi (supra) does not take us any further. There is absolutely no doubt that the revisional jurisdiction of this Court in terms of Section 14(8) of the Act ii wider than the revisional jurisdiction under Section 115 of the Civil Procedure Code. But, even for the purpose of exercise of such jurisdiction, it must be shown that the court below in granting the decree of eviction on the ground of personal necessity has failed to take into consideration the materials on the record, which are vital in nature. As mentioned hereinbefore, nothing has been brought-forth to show that the judgment of the learned court below is vitiated on account of such infirmity. The decision of the Supreme Court in the case of Smt. Sushila Devi must be considered on the peculiar circumstances of the said case alone. In the said case, the landlord made unsuccessful attempts to get rid of the tenants on earlier occasions on one pretext or the other, A learned single Judge of the Delhi High Court, who heard the revision application filed on behalf of the tenant disposed of the entire case only on the ground that the tenant had been in occupation of the demised premised for 40 years: In this connection, reference may be made to a decision of the Supreme Court in the case of Vinod Kumar Arora v. Surjit Kaur wherein the Supreme Court has held as follows:
Learned counsel for the appellant repeatedly contended that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court was not entitled to disregard those findings and come to a different conclusion of its own and cited in this behalf the decision of this Court in Hiralal Vallabhram v. Sheth Kasturbhai Lalbhai. The proposition of law put forward by the counsel is undoubtedly a well settled one but then it must be remembered that the rule would apply only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions. In this case when the Government quarters occupied by the Respondents consists of a single bedroom alone, it has been construed as comprising of three bedrooms ; when the Respondent wanted the entire house to be vacated by the two tenants so that she and her family members could occupy the whole house, the authorities have proceeded on the basis that the Respondent was seeking recovery of possession of one hall alone for her residential needs ; when the respondent had not demanded increase of rent, even as per the admission of the appellant, the authorities have proceeded on the basis that the Respondent was not likely to forego the income derived by way of rent for the hall etc. In such circumstances, it is futile to say that the Rant Controller and the Appellate Authority have rendered their findings on the basic of hard and irrefutable facts. On the contrary the findings have been rendered on either nail-existent or fictitious material. They cannot, therefore, be construed as findings of fact and once they cease to be findings of fact, they stand denuded of their binding force on the appellate or provisional court.
31. The judgment of the learned court below, is my opinion, cannot be interfered with even applying the aforementioned test laid down by the Supreme Court,
32. Taking into consideration the case from all its ramifications, I am of opinion that there is no merit in this civil revision application.
33. In the result, this revision application is dismissed but, is the peculiar circumstances of the case, there shall be no order as to costs.