Patna High Court - Orders
Sunil Kumar Singh & Anr. vs Pawan Kumar Singhania & Ors. on 9 October, 2013
Author: Mandhata Singh
Bench: Mandhata Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.796 of 2010
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1. Sunil Kumar Singh
2. Mukesh Kumar Singh
.... .... Defendant-Revisionists
Versus
1. Pawan Kumar Singhania .....Plaintiff-Opposite party 1st set
2. Arun Kumar Singh
3. Rabinder Kumar Singh
4. Sanyukta Singh
5. Rakesh Kumar Singh
6. Dolly Singh
7. Sony Singh
8. Manorama Singh (since died)
9. Subodh Kumar Singh
10. Prashant Kumar Singh
11. Ranju Singh
12. Bindu Singh
13. Bharti Singh
.... .... Defendants-Opposite party 2nd set
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Appearance :
For the Petitioner/s : M/s Abinash Kumar &
Mr. Susanta Kr. Roy- Advocates
For the Respondent/s : Mr. Praveen Kumar-Adv.O.P.1
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CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH
CAV ORDER
16 9-10-2013This Civil Revision is directed against the judgment and decree dated 26.08.2010 passed by Mr. Suresh Kumar Singh-I, Munsif-2nd, Bhagalpur in Eviction Suit no.05 of 2005, which is heard on merit.
2. Plaintfiff-first opposite party's case, in brief, is that he is owner of the property given in Schedule of the plaint situated at Mahavir Prasad Dwedi Road, Bhagalpur. One Shiv Nandan Prasad 2 Singh was original tenant of the suit premises and its monthly rental was 1800/- per month. After his death, defendant-revisionists and second set opposite parties are tenant of the same as their heirs. They made payment of the rent till February, 2005 and thereafter stopped its payment. Plaintiff-first opposite party requested defendants to make payment of the rent and vacate the premises as he was reasonably and in a good faith in need (requirement) of suit premises. Plaintiff was plying/ running business of truck, but sold truck bearing no.BR-10A-9765 on 21.01.2003. After selling of the truck, he became unemployed and is intending to start business of motor parts in the suit premises. Its (suit premises) area is said 800 square feet having its frontage at Mahavir Prasad Dwedi Road eleven (11) feet only. So, partial eviction may not fulfil the requirement of the plaintiff. When request was made to vacate the suit premises for the first time, assurance was given. Later on that was refused, thereafter plaintiff filed the suit.
3. After permission to contest, written statement is filed in the case. Defendants' case, in brief, is that plaintiff's requirement is not reasonable and bona fide, several relevant facts are concealed by him. Suit is said barred by principle of res judicata, principle of estoppels and acquiescence. The main building of the suit premises is three storeyed. On the ground floor, there are several 3 shops, two of them are vacant also. Frontage of the building are in two sides. Maharana Medical (Shop) is only facing both the sides and rest are single face. It is further said that in North of the suit premises, there is area of plaintiff's son having shops including vacant portion suitable for plaintiff's business. It is further said that total area of the principal building was on rent except first floor of which plaintiff and his family members were occupant. Title (Eviction) Suit No.60 of 1973 was brought by the plaintiff in which parties arrived at a compromise at the stage of execution. The total building except suit premises was vacated by the defendant-revisionists and opposite party 2nd set which also is said concealed. Monthly rent was tendered by the defendants every month, but with ill intention same is not being accepted rather refused. Anyhow, eviction is not sought on the ground of default. It is said that motor parts shops are running in different area of the city. It is further said that requirements of the plaintiff can be fulfilled by vacant shops and there is no satisfactory explanation on the point of substantial satisfaction by part eviction.
4. After framing issues and after completion of trial, suit is decreed in terms of eviction of the suit premises in favour of the plaintiff-first opposite party legality, correctness and proprietary of which has been questioned through filing of this Civil Revision.
5. On the point of scope and area of this Court in 4 Revisional jurisdiction, it is admitted position that same is neither limited as under Section 115 of the C.P.C. nor wide as that of an Appellate Court, its effect is that High Court cannot enter into appreciation or re-appreciation of the evidence, merely because, it is inclined to take a different view of the facts as if it were a Court of facts. This legal position finds support from their Lordships while decided the case reported in 2002(1) Patna Law Journal Reports Page-144 (SC) and 2013(3) P.L.J.R. 395.
6. The point of personal necessity, which is to be decided by this Court has not been considered by the trial Court in proper way, non-coming of the plaintiff-opposite party with clean hands as earlier too Title (Eviction) Suit no.60 of 1973 was filed and decided in which at the stage of execution some compromise was arrived in between the parties in which the total area of suit premises let out in defendants father's favour was vacated by defendants, save and except, the premises of the present suit are shown grounds as illegality. Another point raised is remaining vacant of two of the shops which were vacated by defendant-revisionists in earlier suit. Further, running of motor parts shop of the plaintiff at Gurhatta Chowk. Substantial satisfaction of the plaintiff by part eviction has also been made ground for challenging eviction judgment and decree. Apart from the issue of personal necessity in general, it is said that 5 documents of the defendants are not discussed. A separate point raised on behalf of defendants is that one of the defendants namely Kedar Singh died during the pendency of the suit and judgment and decree is passed against a dead person.
7. On the point of personal necessity and partial eviction, separate issues are framed. They are issue nos.:-
"(IV) Whether premises in dispute was the most suitable shop for the purpose of motor parts business?
(V) Whether partial eviction could satisfy the requirement of personal necessity of plaintiff-opposite party? "
All the points raised by defendant-revisionist shall be discussed under the both issues, so, they are the points to be decided by this Court. No other point is raised to challenge decision of the Court on other issues.
8. For the sake of convenience both these issues are taken together for discussion if suffers with infirmity/ illegality pointed out in earlier paragraph by defendants-revisionist. Before entering into its correctness, it is necessary to consider whether documents of defendants are discussed or not. Paragraph-5 of the judgment is referred on behalf of learned counsel for the plaintiff- opposite party that while discussing issue no.3 regarding barring of the suit on the point of res judicata these documents are discussed. In 6 this Paragraph (Para-5), it is specifically mentioned that Exhibit-A, plaint of Eviction Suit no.60 of 1973, Exhibit-B, order sheet of Execution Case no.14 of 1982 and Exhibit-C, compromise dated 03.08.1985 in Execution Case no.14 of 1982 are filed on behalf of the defendants.
9. Non-mentioning of Title (Eviction) Suit no.60 of 1973 (Exhibit-A), its Execution Suit no.14 of 1982 (Exhibit-B) and compromise in Execution Suit no.14 of 1982 (Exhibit-C), is taken that plaintiff did not come with clean hands, which is said relevant on the point that earlier suit was also for eviction that also on the ground of personal necessity in which most of the portions in occupation of defendants was vacated which are let out to different tenants.
10. This point is faced and replied by the learned counsel for the plaintiff-opposite party that Title (Eviction) Suit no.60 of 1973 was filed on the ground of personal necessity as well as default in payment of monthly rental for more than a period of two months. Personal necessity was not taken into consideration rather eviction was passed/ allowed on the ground of default in making payment of monthly rental. It is further submitted on his behalf that personal necessity if would have been considered/ discussed then also bona fide requirement is recurring cause which can be arised at any subsequent occasion. So, the subsequent suit is not barred. It is 7 further clarified that in case earlier eviction of other tenants was obtained on the ground of personal necessity and vacated portion was let out to others in future then also suit is maintainable on the ground of personal necessity in case earlier eviction was too remote. Reliance is placed on A.I.R. 2010 (SC) 2679 and 2001 (4) P.L.J.R. Page-84 (SC). In present case like A.I.R. 2010 (SC) 2679 earlier eviction was sought in the year 1973 and actual eviction was possible in the year 1985 only and present suit is filed in the year 2005.
11. Finding such interval in my view also, non-
disclosure of Title (Eviction) Suit no.60 of 1973, its Execution Case no.14 of 1982 and compromise in Execution Case no.14 of 1982 is of no consequence or may not be taken as filing of the suit not with clean hands.
12. Before entering the real controversy of personal necessity of the plaintiff-opposite party or substantive satisfaction of the requirement on partial eviction, it is necessary to discuss an important point raised on behalf of learned counsel for the defendant- revisionists that two of the shops in the building in possession of defendants were laying vacant.
13. It is admitted case of the parties that after compromise arrived at in between the parties in Execution Case no.14 of 1982 evicted part was let on rent (tenancy). According to learned 8 counsel for the defendant-revisionists, two of vacated shops remained vacant while that on behalf of plaintiff-respondent, it is said that all the shops were let out on rent.
14. Parties are at serious controversy on the point that defendant-revisionists were allowed to continue in the premises and the same was the result of part eviction only or fresh tenancy was created. It is admitted to the parties that only in terms of compromise in Execution Case, defendant-revisionists were allowed their occupancy over the suit premises. It is further admitted to the parties that Title (Eviction) Suit no.60 of 1973 was filed on the ground of personal necessity as well as on the ground of default in making payment. Personal necessity was not decided by the trial Court rather default in making payment of rent was made ground for eviction. In that suit defendant-revisionists approached even the Supreme Court for redressal of their grievance, but failed. So, the terms of compromise remains to consider if creates fresh tenancy or allows defendant-revisionists possession in continuation of earlier tenancy.
15. After decree of eviction in Title (Eviction) Suit no.60 of 1973, Execution Case no.14 of 1982 was filed and pending to enforce/ execute the eviction. In that course only some compromise arrived at in between the parties which allowed the defendant-respondents to remain in part of the suit premises of that 9 case and that could be possible only through a written compromise, which was made part of the result of the execution, same is Exhibit-C in this case. Paragraphs-3 and 4 of Exhibit-C is clear to decide the controversy in between the parties on the point of creation of fresh tenancy or continuation of the earlier one. There is no dispute about area of the suit premises remained in occupation of the defendant- respondents that was shown in red colour in a map attached with compromise petition. Paragraph-3 clears that its monthly rental was agreed in between the parties as Rs.201/-. Paragraph-4 mentions about being effective of the tenancy and specific date 01.07.1985 is given for the purpose of coming in effect of the tenancy. Thus, it is clear that a fresh tenancy was created in favour of the defendant- respondents.
16. Next point raised referring A.I.R. 1981 (SC) 1113 and 1998(3) P.L.J.R. 846 is remaining vacant of two shops, which is submitted and stressed. Paragraph-4.1 of the written statement is there to disclose that two of the shops vacated by defendant- respondents and their family members remained vacant which is replied that all the shops were let out on rent and none remained vacant. In this regard, paragraph-11 of examination-in-chief of DW- 7, paragraph-3 of his cross-examination, paragraph-6 of examination- in-chief of DW-8 and paragraph-4 of his cross-examination, 10 paragraph-5 of examination-in-chief of DW-10 and paragraph-3 of his cross-examination are referred in which these witnesses are stating about letting out of all the shops. PW-7 is defendant no.5, DW-8 is defendant no.3 and DW-10 is defendant no.4. After their admission, no question arises about remaining of any of the shops vacant. It was relevant on the point only that need/ requirement of the landlord can be satisfied by that portion which in this case is of no consequence.
17. Much stress is given on the point that one of the defendants namely Kedar Prasad Singh (defendant no.3) died before passing/ pronouncement of judgment in this case and according to defendant-respondents passing of the judgment and decree against dead person is nullity. This view cannot be disputed. Admittedly, Kedar Prasad Singh was one of four sons of Shiv Nandan Prasad Singh original tenant of plaintiff-respondent. After death of Shiv Nandan Prasad Singh, all his four sons and wife inherited the right of tenancy and suit was contested by Kedar Prasad Singh also. So, the matter can be said clear that no effective decree could be passed in absence of above Kedar Prasad Singh. In present case a different circumstance existed while the witnesses examined and judgment pronounced after hearing the parties.
18. All the four brothers including Kedar Prasad 11 Singh appeared in the case through same lawyer and by one Vakalatnama. Order-XXII casts duty upon plaintiff to bring deceased's legal representatives party on record and in absence of the same, suit abates if right to suit does not survive against surviving defendants alone. But at the same time, a duty is cast on Pleader appearing for party who dies, to inform the Court about the death when it comes to his knowledge which has not been performed/ done in this case while the same lawyer was representing the deceased along with other defendants rather he continued to argue the case as if dead defendant were alive. It can be said a tactics implied or an attempt to play fraud on Court even and cannot be permitted and in that case appeal against the order is maintainable, judgment and decree cannot be said a nullity. Similar circumstance appeared in case decided by their Lordships in 2004(13) SCC 413. In the case their Lordships observed as follows:-
paragraph-4 "Though the arguments are attractive one must also keep in mind Order 22 Rule 10 of the Code of Civil Procedure. It is obligatory on the pleader of a deceased to inform the court and the other side about the factum of death of a party. In this case we find that no intimation was given to the court or to the other side that the first respondent had died. On the contrary a counsel appeared on behalf of the deceased person and argued the matter. It is clear that 12 the attempt was to see whether a favourable order could be obtained. It is clear that the intention was that if the order went against them, then thereafter this would be made a ground for having that order set aside. This is in effect an attempt to take not just the other side but also the court for a ride. These sort of tactics must not be permitted to prevail. We, therefore, see no reason to interfere. The appeal stands dismissed. There will be no order as to costs".
19. In the discussed circumstance, it is observed that judgment and decree passed in the case cannot be said a nullity. It is made clear that all the legal representatives of Kedar Prasad Singh have been made revisionists or opposite party in the case.
20. Now, Court is to decide the main dispute. Suit has been filed for eviction under Section 11(c) of the Bihar Building (Lease, Rent and Eviction) Control Act which enables the landlord for eviction on the ground of personal necessity. It is admitted to the parties also that eviction is possible only on the ground of personal necessity. Dispute is on the point of existing or non-existing of personal necessity, which has been discussed by the trial Court also. Further parties are at agreement that option is with landlord to choose any of several premises let out to different persons. On this point, controversy is raised on behalf of the defendant-respondents that two 13 of the shops of landlord were vacant and option should begin from those premises if fulfils/ satisfies then portion in occupation of tenant/ defendant-revisionists should be taken into consideration for eviction. On the point of personal necessity stress is made on behalf of learned counsel for the defendant-respondents that desire of the landlord does not come within the ambit of personal necessity.
21. Next point in controversy is substantive satisfaction of requirement by partial eviction. On the point of partial eviction cases reported in 1999(2) P.L.J.R. 177, 2005(3) P.L.J.R.719, 2003(2) P.L.J.R. 345, A.I.R. 1994 (SC) 489 are relied upon on behalf of learned counsel for the defendant-revisionists. The principle is same as in Section 11(c ) and its proviso of the Bihar Building (Lease, Rent and Eviction) Control Act. How minutely it can be taken into consideration is discussed by their Lordships in A.I.R. 1994 (SC) 489 in which a direction was given to find out possibility of partial eviction even by dividing a room and verandah in two parts. This legal aspect has not been disputed by learned counsel for the plaintiff- opposite party, what is disputed on his behalf is that the requirement which was existing in the case in favour of the plaintiff was not to be substantially satisfied by partial eviction of the suit premises, which has been considered by the trial Court also.
22. In this regard, paragraph-4 of cross-examination 14 of DW-7 and paragraph-6 of cross-examination of DW-8 who are defendant nos.5 and 3 in the case are referred. In paragraph-4, DW-4 states that if part of the shop is evicted that will not satisfy the requirement of the plaintiff. Similarly DW-8 in paragraph-6 also repeats the same. Apart from the admission of defendant's witnesses, plaintiff and his witnesses are there to state that partial eviction could not substantially satisfy requirement of the plaintiff. Thus, on this point I find no mistake committed by the Court below.
23. The cases reported in 2013(3) P.L.J.R. 395 and 1996(2) P.L.J.R. 737 are cited on the point that only desire of the landlord is not his necessity (personal). This point is taken with personal necessity which is followed by onus of the parties to establish personal requirement and partial eviction. A single Bench judgment is cited reported in 1989 P.L.J.R. 1163 on behalf of learned counsel for the defendant-revisionist that onus lies on the landlord that he is in personal requirement of the premises which cannot be satisfied by partial eviction while this onus is shifted on tenant in 1993(1) P.L.J.R. 87 (DB) by their Lordships.
24. Apart from the claim of the parties on the point of onus the same loses its importance when parties to the suit adduce their evidence on the disputed point. Plaintiff-opposite party's case is that he was in requirement of the suit premises reasonably, bona 15 fidely and in good faith for his personal use and occupation to carry on and start his business of motor parts. This is paragraph-5. Paragraph-6 is to the effect that plaintiff had his truck business and sold his truck bearing registration no.BR-10A-9765 on 21.01.2003 and after the sale he is now sitting idle having no business.
25. Both the paragraphs have been denied in Paragraphs-8 and 9 of written statement. In paragraph-10 of the written statement, it is said that there is no other shop of motor parts in the vicinity and plaintiff carries a shop of motor parts at Gurhatta Chowk, but for the same also right has been kept reserved to seek discovery. Plaintiff along with his witnesses is there to state that he was in the requirement of the suit premises for starting his business of motor parts and plaintiff is there to state in his deposition as PW-5 in paragraph-16 that there is a shop of motor parts at Gurhatta Chowk of his wife on rent. This much has been admitted by DW-5 in paragraph-9 of his cross-examination and DW-7 in paragraphs-1 and 2 of his cross-examination. In paragraph-9, DW-5 states that the shop at Gurhatta Chowk is of Meera Singhania, Meera Singhania is wife of the plaintiff. In paragraph-1 of cross-examination DW-7 states about running of a shop at Gurhatta Chowk by the plaintiff. In paragraph-2, he states that he had heard that shop at Gurhatta Chowk was running in name of plaintiff's wife. Though, it has appeared that property and 16 premises are existing in name of plaintiff's son also, but that is of no concern for the purpose of this suit.
26. Last point raised on behalf of defendant-
revisionists is balance of convenience which also should be taken into consideration while deciding eviction on the ground of personal necessity. On this point, A.I.R. 1991 SC 335 is referred, but I think same is not applicable in this case as the case of A.I.R. 1991 SC 335 was under Section 13(1)(g) and 2 of Bombay Rents (Hotel and Lodging House Rates) Control Act which mandates to consider all the circumstances of the case including question whether other reasonable accommodation is available for the landlord or the tenant and whether hardship would be caused by passing the decree than by refusing to pass it.
27. After above discussion, it is clear that trial Court has taken into consideration all the points necessary to be discussed for deciding the controversy in between the parties shown in Issue nos. IV and V towards eviction of the suit premises and committed no mistake/ wrong giving no scope to interfere.
28. In the result, this Civil Revision is dismissed and judgment and decree passed by the trial Court is hereby confirmed.
Patna High Court (Mandhata Singh, J) Dated-09-10-2013 Vikash/N.A.F.R.