Patna High Court - Orders
Dayanand Pd. & Ors vs Rajesh Kumar & Ors on 19 December, 2012
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.193 of 2011
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1. Dayanand Prasad, son of Sri Ramchandra Prasad.
2. Sadanand Prasad, son of Sri Ramchandra Prasad.
Both are residents of Mohalla- Narsaliganj (Nai Sarai), P.O. & P.S.-
Biharsharif, District- Naldanda.
....Defendants .... Petitioner/s
Versus
1. Rajesh Kumar, son of late Krishna Prasad.
2. Rakesh Kumar, son of late Krishna Prasad.
Both are residents of Mohalla- Amaber, Town- Biharsharif, P.O. &
P.S.- Biharsarif, District- Nalanda.
....Plaintiffs .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Birju Prasad, Advocate
For the Respondent/s : Mr. Santosh Kumar Sinha No.2, Advocate with
Mr. Uttam Kumar Mishra, Advocate and
Mr. Vidya Nand Kumar, Advocate.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
C.A.V. ORDER
9 19-12-2012Although this civil revision application was filed belatedly but the delay in filing the same has been condoned by this Court vide order passed on 8.12.2011.
This civil revision application filed under section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act') is directed against the judgment and order dated 23.5.2011/2.6.2011 passed in Eviction Suit No.23 of 2003, whereby the learned Additional Munsif 1 st, Nalanda at Bisharsharif has been pleased to decree the suit in favour of the plaintiff and has directed the defendants to vacate the premises within three months from the date of the order. The defendants are before this Court.
For the sake of convenience I shall be referring to the party position as it existed at the stage of the suit.
The suit was instituted by Krishna Prasad, the father of the Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 2 opposite parties herein seeking a decree of eviction with respect to the suit property which is a shop situated at Ward No.10 (Old), 20 (New), Holding No.752 (Old), 639 (New), Mohalla- Amber in the District of Nalanda. The area of the shop is 20' 6" east-west and 10' 3" north-south which goes reducing to 8'. The suit property devolved upon the plaintiff by way of registered family partition which is stated to have taken place on 19.1.1988. On an oral understanding the said shop was given on rent to the petitioners on a monthly rental of Rs.600/- per month for running a Kirana and general store. Subsequently the oral understanding was reduced to writing when a Kirayanama was executed on 7.10.1998 for a period of five years ending on 30.9.2003. It is the plaintiff's case that as the younger son of the plaintiff Rakesh Kumar was sitting idle hence for his settlement the plaintiff needed the shop in question and that a partial eviction of the tenant from the premises would not have sufficed the requirement. It was further the case of the plaintiff that there was no other shop vacant. As the oral request went unheeded a legal notice was served on 5.11.2003 but the same was also not responded to and upon ultimate refusal by the defendants, the plaintiff filed the suit in question.
The plaintiff examined seven witnesses including the plaintiff. The plaintiff Krishna Prasad was examined as plaintiff witness no.6. The son of the plaintiff Rakesh Kumar for whose settlement the suit had been instituted was examined as plaintiff witness no.7. The plaintiff deceased during the pendency of the suit and was substituted by the opposite parties herein. The suit thus was instituted primarily on three counts, namely, bona-fide requirement, personal necessity with no other shop of the plaintiff lying vacant and that the partial eviction would not suffice the Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 3 need of the plaintiff.
The contention was opposed by the defendants, inter alia, on grounds that the foundation itself was incorrect and that the claim of personal necessity was wrong as the plaintiff had several house and shops. The defendants submitted that the disputed shop as well as the shop lying adjacent west was taken on rent by the father of the defendants on a monthly rent of Rs.100/- in the year 1972 and which was enhanced in September, 1998. The defendants while admitting the pressure by the plaintiff to vacate the shop for settlement of the son in the year 1998 stated that the plaintiff also made a demand of Rs.50,000/- for enhancement of rent. It was contended that the terms of the plaintiff were that half of the advance amount of Rs.50,000/- would be adjusted towards rent and the rest half would be by way of security. It is stated that finally an agreement was reached and the defendants were required to pay an advance of Rs.25,000/- of which 19,800/- was to be adjusted towards rent and the balance of Rs.5,200/- was to be refunded. It is admitted that a rent-deed was executed on 7.10.1998 for a period ending on 30.9.2003. It is stated by the defendants that the younger son of the original plaintiff Rakesh Kumar was engaged in business funded by the advance given by the defendants and the own contribution. The defendants stated that on the adjacent west shop, the son of the plaintiff started running a general store and milk business. It is further stated that the elder son of the plaintiff, namely, Rajesh Kumar was already running a Photo cum Photostat shop since last 15 years at a separate place. It is further the case of the defendants that even before expiry of the tenancy, the plaintiff again started exerting pressure for Rs.50,000/- as advance and for enhancement of rent and as the defendants Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 4 could not respond to the pressure and unreasonable demand, hence the suit was instituted. The claim of bona-fide requirement and personal necessity has been contested on grounds that the plaintiff has constructed a market over the national high way having seven shops. It is further the case of the defendants that the suit in question was a ploy for enhancement of rent to Rs.1,000/- with Pagari of Rs.50,000/-. It is further stated that of the advance amount of Rs.25,000/-, Rs.19,800/- was adjusted towards the rent but Rs.5,200/- remained to be refunded and apart from the same the defendants had also installed a shutter for Rs.3398/-. The claim of unemployment of the younger son of the plaintiff was rubbished as an incorrect statement by stating that the adjacent west shop was being run by him.
The defendants examined 12 witnesses including their father who was examined as defendant witness no.10 and led a number of documentary evidence. On the basis of the rival contentions, the learned trial court framed six issues of which issue nos.4 and 5 are the issues germane for the matter in contest relatable to bona-fide requirement, personal necessity and partial eviction.
Mr. Birju Prasad has appeared for the defendant-petitioners who submits that the plaintiff has completely failed to establish the claim of bona-fide requirement or personal necessity and that the suit in question is a means resorted to by the powerful landlord for eviction of the tenant for not succumbing to the unreasonable pressures exerted by the landlord. It was contended that the plaintiff has constructed a market consisting of 7 shops and thus there is no occasion to evict the defendants except for the reason that the defendants could not fulfill his unreasonable demands Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 5 regarding enhancement of rent and an advance of Rs.50,000/-. It was contended that the plea of bona-fide requirement and personal necessity itself is a false claim as the son of the plaintiff was already settled in the shop lying adjacent west to the disputed shop. With reference to the evidence of the witnesses led by the defendants it was contended that each of the witnesses have confirmed this position that the son of the plaintiff was running a general store and milk business in the adjacent west shop.
Learned counsel has questioned the impugned judgment and order on the following counts:
(a) The issue of partial eviction has not been considered and adjudicated upon by the learned trial court in a judicious manner. Learned counsel has referred to the following judgments in support of his contentions:
(i) 2004 (1) PLJR 462 (Bhola Prasad Sah vs. Ram Dhani
Prasad).
(ii) 2004 (4) PLJR 757 (Md. Moazzam Ali vs. Smt. Sushila).
(b) The impugned judgment and order does not appreciatively consider that the son of the plaintiff was already in business and thus there was no bona-fide requirement. Learned counsel in support of his contention referred to the judgment of the Supreme Court reported in 2002 (1) PLJR 144 (S.C.) (Chandrika Prasad (D) Thr. LRs. Vs. Umesh Kumar Verma).
(c) The learned trial court has not tested the matter on the contentions of the defendants about the alternative shops Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 6 available to the plaintiff which fell vacant subsequently. Learned counsel in support of this proposition has relied upon the judgment of the Supreme Court reported in AIR 1981 SC 1113 (M.M. Quasim Vs. Manohar Lal Sharma) and 1121.
(d) The learned trial court has failed to record a finding whether the needs of the plaintiff could be satisfied by the partial eviction. Learned counsel in support of the proposition has relied upon the judgment of the Supreme Court reported in AIR 1984 SC 1799 (Nasirul Haque vs. Jitendra Nath Dey) and AIR 1985 SC 582 (S. Sundaram Pillai etc. vs. V.R. Pattabiraman).
(e) The advance of Rs.25,000/- taken by the plaintiff had not been fully adjusted.
(f) As all the heirs of the deceased plaintiff were not substituted, hence the suit was not maintainable and ought to have been dismissed on this count alone.
Mr. Prasad, learned counsel for the defendant-petitioners has submitted that the learned trial court having failed to record judicious findings on the issues raised hereinabove, the judgment and order is perverse and suffering from material irregularity is fit to be set aside.
Mr. Santosh Kumar Sinha No.2 has appeared for the plaintiff- decree holders. As already indicated the original plaintiff had deceased after recording his evidence and was substituted by his sons who are opposite parties herein. Mr. Sinha while supporting the finding of the learned trial court has submitted that the judgment of the learned trial court Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 7 is well discussed and in absence of any evidence led by the defendants to falsify the claim of bona-fide requirement and personal necessity set up by the plaintiff, there could not have been any other finding. Learned counsel while admitting the fact that the plaintiff had several other shops, submitted that the issue on this aspect stands well settled by the judgments of the Supreme Court and a mere existence of other shops would not be sufficient for rejecting the choice of the shop made by the landlord seeking eviction. It is stated that the choice is entirely of the landlord to prefer any of the shops which are in his possession and until such time that the defendants can show that the choice is tainted by mala-fide, a mere existence of alternative would not disentitle the plaintiff. It is contended that the period of tenancy expired on 30.9.2003 as per the own admission of the defendants and as the defendants were not yet prepared to vacate the shop despite oral request and legal notice, the plaintiff had no other option but to prefer the suit. In support of the contentions of the plaintiff about the son sitting idle and about no other shop lying vacant, it is contended that the deceased plaintiff Krishna Prasad examined himself as plaintiff witness no.6 and in which he had stated that adjacent west shop was being run by him and not by his son. With reference to the evidence of the plaintiff it was contended that a specific stand had been taken by the plaintiff that the requirement could not be fulfilled by partial eviction and no evidence contrary to the assertions of the plaintiff was led by the defendants. Learned counsel with reference to a recent judgment of this Court reported in 2012 (3) PLJR 649 (Hanuman Prasad Gupta vs. Shankar Choudhary) has submitted that it has been settled by the court that once a claim has been made by a plaintiff on grounds of personal necessity, the Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 8 onus would shift upon the defendants to prove whether or not it can be satisfied by partial eviction. It is stated that as no evidence was led by the petitioners on this score, they cannot question the judgment on the issue of partial eviction. It is contended that the suit premise is the most appropriate for settlement of the son of the original plaintiff for running a general store and for which the entire premises was required. It is submitted that the so- called adjacent shop was an open area of 31/2' x 4-5'. It is stated that no witness was either led by the defendants nor the plaintiff's witnesses were cross-examined on the issue of partial eviction, by the defendants. It is stated that a specific statement to this effect was made by the plaintiff in paragraph 8 of the plaint and which has not even been replied by the defendants in the written statement. On the issue of other option available, learned counsel referred to a judgment of this Court reported in 2011(1) PLJR 1035 (Md. Nuruddin vs. Rabindra Kumar Sinha) to submit that the right to choose is upon the landlord and cannot be questioned by the tenant. As regarding non-adjustment of the advance it is stated that while a sum of Rs.19,800/- stood adjusted towards the rent, the balance of Rs.5,200/- is to be refunded upon evacuation which is yet to take place and thus the contentions is misplaced. On the issue of maintainability of the suit upon death of the plaintiff and by non-substitution of all the heirs, learned counsel relied upon a judgment reported in 2011(1) PLJR 1 (Arjun Prasad vs. Paras Nath Yadav) to submit that there was no necessity to bring all the heirs on record as plaintiff. Learned counsel thus submits that the judgment and order in question being based upon appreciation of evidence and in the light of the statutory provisions, the same did not warrant any interference.
Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 9
I have heard learned counsel for the parties and have perused the materials on record. The issue of maintainability of suit raised by the defendants on grounds that all the heirs of the original plaintiff have not been substituted stands answered by the judgment relied upon by learned counsel appearing for the plaintiff-decree holders rendered in the case of Arjun Prasad (supra) and requires no further discussions.
The issue of maintainability of the suit having been answered in favour of the plaintiff this Court would now be required to see as to whether the judgment and order in question suffers from any legal infirmity or procedural infirmity or is perverse. It is by now well settled that the revisional jurisdiction exercised by the High Court under section 14(8) of the Act though is wider than the jurisdiction exercised under section 115 of the Code of Civil Procedure but it is not similar to an appellate jurisdiction. In fact unless the order under challenge is found to be in violation of the procedure engrafted under section 14 of the Act or is based on no evidence or on evidence which is inadmissible in law or has been passed upon non- consideration of the evidence reflecting perversity, the High Court would not enter into the appreciation or re-appreciation of evidence. The High Court would not venture to substitute its views for the views taken by the learned trial court if the same is supported by reasons and is based upon the evidence led during the course of trial.
Having outlined the scope of interference, it is now to be seen whether the judgment and order under challenge has been found wanting on any of these counts. As there is no contest on the issue of landlord- tenant relationship existing between the parties hence the said issue also does not warrant any discussion. This brings this Court to the two issues Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 10 which are relevant for the matter in contest i.e. issue nos.4 and 5 relatable to bona-fide requirement, personal necessity and partial eviction. The plaintiff witness no.6 is the original plaintiff Krishna Prasad who deceased after giving his evidence. He admits to the execution of the rent-deed and also admits to five other shops owned by him but has submitted that none of the shops are vacant. Regarding the adjacent west shop, he admits that it is being run by him and not his son. The same position has been endorsed by all the witnesses led by the plaintiff. Of the witnesses led by the defendants the defendant witness no.10 is the father of the defendants. He admits that he had taken the shop from the deceased plaintiff in the year 1972 and that originally the shop was 26' long but was reduced by 6' and in which the son of the plaintiff was running a shop. He admits that he is running a business in Kolkata. The other witnesses led by the defendants have merely endorsed the stand of the defendants regarding running of adjacent west shop by the son of the plaintiff as also existence of other shops owned by the plaintiff. Defendant witness no.1 Ram Swarup Raut is a customer of defendants who made purchases on deferred payment. Defendant witness no.2, Mishri Lal has stated that he does not know the issue in contest although he has stated that the son of the plaintiff is running a small shop. The defendant witness no.3 is Lala Shri Kumar Sinha, an Advocate claiming to know both the parties and who while endorsing the running of the adjacent west shop by the son of the plaintiff has admitted that the plaintiff has no other vacant shop. The defendant witness no.4, Pradeep Kumar Sinha is an Advocate's Clerk who even while endorsing the statement of the defendant has stated that he has not seen the son of the plaintiff. The defendant witness no.5, Kameshwar Prasad Singh Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 11 is also an Advocate's Clerk who has merely endorsed the statement of the defendants. Defendant witness no.6, Chhotu Kumar is an unemployed who claims to know the defendants since 20 years but does not recognize the plaintiff. Defendant witness no.7, Pramod Singh is again an Advocate's Clerk who does not know the area of the shop. The defendant witness no.8, Sakaldeep Kumar is again an Advocate and a customer of the defendants. The defendant witness no.9 is the defendant no.1 himself (Dayanand Prasad). Defendant witness nos.11 and 12 again are Advocate's Clerk. The rent-deed dated 7.10.1998 stands admitted by both the parties and according whereto the tenancy expired on 30.9.2003 and has not been renewed. The suit in question has been instituted immediately thereafter on grounds of personal necessity. Whereas it is the specific case of the plaintiff while admitting to existence of other shops that there are no other vacant shops available; that the shop in dispute is the most appropriate shop for running a general store; that the son of the plaintiff sitting idle and hence a personal necessity for his settlement and that a partial eviction would not satisfy the needs but despite 12 witnesses having been examined by the defendants and number of documents led by way of evidence, the claim of the plaintiff could not be rendered a false plea or a plea laced with mala-fide nor the foundational facts were found missing. On the contrary most of the witnesses either appeared to be a hearsay witness or are customers of the defendants or are Advocates or Advocate's Clerk. Even while trying to endorse the evidence of the defendants regarding the son of the plaintiff being engaged in the business, whereas some of the witnesses have not even seen the plaintiff, some did not even know of the issue in dispute whereas the others did not have any supportive evidence of Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 12 purchase. It is in this background that the learned trial court while recording his finding in his judgment and order has opined that the witnesses were interested witnesses. Whereas the plaintiff himself claimed to be running the shop situated adjacent west to the shop in dispute and which statement is sought to be countered by the defendants by stating that it is the son who is running the shop but neither the defendants nor his witnesses have given any evidence to falsify the statement of the plaintiff about himself running the shop or whether he was running any other shop. On the issue that the suit in question was instituted upon the defendants not complying with the demand of the plaintiffs of an advance of Rs.50,000/-, no evidence was led by the defendants. On the other options available, the defendants could not countenance their statement or demonstrate that the plaintiff had other shops vacant. Thus in absence of any evidence regarding any other shop lying vacant and available for the plaintiff, the plea of personal necessity and the bona-fide requirement of the plaintiff stands established. Once this is established it was for the defendants to prove that the necessity of the plaintiff could be satisfied by partial eviction but the records manifests that no evidence at all was led by the defendants on this score and in absence whereof, as also in view of the demand made by the plaintiff for the entire premises, the issue was rightly decided in favour of the plaintiff.
In so far as the issue of adjustment of advance is concerned, the plaintiff has admitted that a sum of Rs.5,200/- is to be refunded to the defendants on vacation of the premises but as they are holding on to the same hence it has not been refunded. The defendants again cannot take the benefit of their own lapse and as the plaintiff is willing to refund the Patna High Court C.R. No.193 of 2011 (9) dt.19-12-2012 13 balance advance amount of Rs.5,200/- the said issue also draws in favour of the plaintiff. In so far as the expenditure by the defendants regarding installation of shutter worth Rs.3398/- is concerned, the records manifests that no such claim had set up for adjustment by the defendants rather the defendants themselves admit that upon failure of the plaintiff to install the same, they installed the shutter on their own expense. However, that is not relevant for deciding the issue in contest. The defendants, if so advised, may take recourse to such remedy as may be available to them in law for refund/adjustment of the said amount.
In view of the discussions hereinabove, it is clear beyond any shadow of doubt that the findings of the learned trial court did not suffer from any procedural lapse or any legal infirmity rather is based upon sound reasoning, the evidence led by the parties and in view of the pronouncements on the issue.
For the reasons aforesaid, I find no merit in this civil revision application and it is accordingly dismissed but without any order as to costs.
Let the lower court records received, be returned to the court concerned forthwith, in a sealed cover.
(Jyoti Saran, J) SKPathak/-