Ratan Lal vs Ratan Lal on 8 April, 2021

[Cites 11, Cited by 2]

Jharkhand High Court

Ratan Lal vs Ratan Lal on 8 April, 2021

1. This second appeal is directed against the judgment and decree dated 19.12.2006 and 03.01.2007,passed by the learned District Judge, Jamshedpur, in Eviction Appeal No.02 of 2006, reversing and setting aside the judgment dated 18.01.2006 passed by the Sub-Judge -V, Jamshedpur, -2- in Eviction Suit No.53 of 1993 and directing the appellant/ defendant to hand over the vacant possession of the suit premises to the respondent/ plaintiff.

2. The plaintiff/ landlord (respondent in the present appeal) instituted Eviction Suit No.53 of 1993 under Section 11(c) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 now Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 (hereinafter to be referred to as 'The Act' for short) for eviction of the defendant/ tenant (appellant herein) from the suit premises as the plaintiff required the suit premises to start a business for his son, namely Mahendra Lal, who was sitting idle. The suit was decreed in favour of the plaintiff whereafter the defendant/ tenant preferred Civil Revision No.185 of 2000(R) before this High Court. The learned Single Judge allowed the revision with the finding that the need of the plaintiff/ landlord could be fulfilled and satisfied by partial eviction from the suit premises. Being aggrieved, both the parties challenged the order before the Supreme Court in Civil Appeal Nos.917 of 2002 and 918 of 2002. The Hon'ble Supreme Court, on hearing the parties, by order dated 01.02.2002, set aside the order of the High Court and remitted the matter to the trial court for deciding the question of partial eviction.

3. The trial court, on consideration and discussion of the evidence adduced by the parties, recorded its finding that the need and requirement of the plaintiff/ landlord could be met and satisfied by allotting Schedule - C portion of the suit premises to the plaintiffs/ landlord and -3- Schedule - A & B to the defendant/ tenant (the appellant) and accordingly passed the judgment dated 18.01.2006. Being aggrieved by the judgment of the trial court, the plaintiffs/ landlord preferred Eviction Appeal No.02 of 2006 before the learned District Judge, Jamshedpur. The first appellate court, while setting aside the judgment of the trial court, held that the bonafide need and requirement of the plaintiff/ landlord could only be satisfied by handing over of the vacant possession of the entire suit premises by the tenant and reversed the finding of partial eviction.

Consequent thereto, the appellant/ tenant has carried this second appeal before this Court impugning the judgment of the first appellate court. This Court, by order dated 23.07.2008, admitted the appeal for hearing on formulation of the following substantial question of law;

(I) Whether the judgment and decree passed by the court of appeal below can be sustained in law while reversing the judgment of the trial court, it has failed to meet all the reasonings for passing decree for partial eviction ?

(II) Whether the court of appeal below has erred in law in holding that the trial court's decree for partial eviction will amount to thrusting the court's choice upon the plaintiff/ landlord ?

4. The brief facts of the case is that the appellant/ defendant has been in occupation of Shop No.2, situated on the eastern portion of holding No.151 of Sakchi Bazar, measuring 20.1/2' x 6' ft. and the adjacent room measuring -4- 7' x 9.1/2' ft situated on the southern side in the rear portion of Schedule - A (as described in the plaint) and an adjacent shop room measuring 19' x 7' ft., of Schedule - B (as described in the plaint) situated on the southern portion of Schedule - A shop room. The plaintiff/ landlord purchased the suit property from the predecessor-in-title who had inducted defendant No.1 as a tenant in the suit premises. Consequent to the sale, the defendant became the tenant of the plaintiffs. The plaintiffs used to realize rent from her. It is pleaded that the plaintiffs/ landlord requires the aforesaid suit premises, reasonably and in good faith, for setting up jewellery business for his son Mahendra Lal, who has been sitting idle. The suit premises is suitable for the said business as it is located in Sakchi market which is a hub of commercial activities. It has been pleaded that the plaintiff repeatedly requested the defendant to vacate the suit premises, but she did not vacate the same. She refused to receive the legal notice, whereupon the suit was instituted under Section 11(c) of the Act.

5. The defendant/ tenant (appellant herein) in her written statement refuted the plea of personal necessity and asserted that the plaintiffs are already running a jewellery shop in the said holding under the name and style of "Dwarika Jewellery". She has stated that a shop has been recently vacated, as such, the need and requirement of Mahendra Lal (son of plaintiff No.01), can be satisfied by occupation of the said vacant shop. She asserted that the plaintiffs have other shops and the plea of -5- personal necessity of the plaintiffs is merely a pretence. It was averred that Mahendra Lal is already engaged and carrying on jewellery business at a place which is more suitable than the suit premises and the need and requirement of the suit premises for personal necessity by the plaintiffs is whimsical and not genuine.

6. Mr. V. Shivnath, learned senior counsel for the appellant/ tenant, while assailing the judgment of the first appellate court, has strenuously argued that the Supreme Court, after hearing the parties, remitted the case to the trial court with the observation " ......... that the question so far as the partial eviction is concerned, the same ought to have been considered by the trial court and not the revisional court ..........". It is contended that the Apex Court has used the word 'consider' so far as the partial eviction is concerned which demonstrates that the Apex court was of the view that the partial eviction would satisfy the need of the plaintiff-landlord. It is submitted that as per the direction of the Apex Court, the trial court, on evaluation and appreciation of the evidence on record, recorded its satisfaction that the partial eviction would meet the need and requirement of the plaintiff-landlord.

7. It is argued that the trial court has considered and discussed the evidence and held that though there was no pleading of partial eviction, however, on consideration of the evidence adduced by the parties, it has recorded the finding, by assigning cogent reasons, that the appellant/ tenant has been carrying on his business in the suit premises for the past two decades and considering the -6- fact, that the plaintiffs have other shops in the locality, therefore, the court arrived at the conclusion that partial eviction would meet the need and satisfy the requirement of the plaintiffs-landlord. Accordingly, the trial court allotted Schedule - C property to the plaintiff for opening of jewellery shop by providing a passage in Schedule - B of the suit premises with access to Schedule - A of the property.

8. It is submitted that the plaintiffs have raised the grievance that Schedule - C property is situated in the alley. It is urged that this aspect has been considered by the trial court and it has been observed that there are other shops situated in the alley. The trial court has taken into account the fact that the appellant/ tenant has established the goodwill and reputation of his shop. Thus, considering the comparative hardship the tenant will face on eviction from the suit premises, the court has arrived at the finding that allotment of Schedule - C property in favour of the plaintiff will satisfy the need and requirement of the plaintiffs.

9. Learned senior counsel has emphatically argued that the learned first appellate court has reversed the findings of the trial court on the question of partial eviction without appreciating the fact, that as per the direction of the Supreme Court, the trial court has, on appreciation of evidence, considered the question of partial eviction and assigned cogent reasons for the same.

10. Learned senior counsel has canvassed that the Supreme Court, in Madhukar & Ors. Vs. Sangram and -7- Ors.; (2001) 4 SCC 756, has propounded that duty and obligation is cast on the first appellate court to come into close quarters with the reasoning and finding of the trial court and assign cogent reasons for disagreeing with the findings of the trial court.

It is submitted that in the instant case it is evident that the first appellate court, while reversing the findings of partial eviction, has not assigned any reason for disagreeing with the findings of the trial court, as such the substantial question of law leans in favour of the appellant, and therefore, the judgment of the first appellate court is fit to be set aside and the case requires to be remanded to the first appellate court for deciding the question afresh on the question of partial eviction, by assigning proper reasons.

11. At the very outset it appears that the argument advanced by the learned senior counsel that usage of the word 'consider' by the Apex Court is demonstrative of the fact that the Supreme Court was of the view that the partial eviction would meet the need and requirement of the plaintiff/ landlord, is palpably fallacious and misconceived.

This Court is in agreement with the contention of Mr. Manjul Prasad, learned senior counsel, appearing on behalf of the respondents/ landlord, that the Supreme Court in Chairman, LIC of India Vs. A Masilamani; (2013) (1) JCR 188 (SC), has held that usage of the word and term 'consider' postulates consideration of all relevant aspects of a matter by application of judicial mind with reference -8- to the materials available on record and the word 'consider' does not, by any stretch of imagination, mean final determination of the issue. In this context, it is pertinent to note that the Supreme Court while remitting the matter has observed " ......... that the question so far as the partial eviction is concerned, the same ought to have been considered by the trial court and not the revisional court ..........". On plain reading of the words and language and the direction given by the Hon'ble Supreme Court, it is abundantly clear that the Apex Court was of the view that revisional court should not have gone into the question of partial eviction as the question of partial eviction was to be considered and adjudicated by the trial court. Thus, the argument advanced by the learned senior counsel for the appellants stands rejected.

12. Mr. Manjul Prasad, learned senior counsel, appearing on behalf of the respondent/ landlord has argued that the plaintiffs had pleaded that they required the suit premises for Mahendra Lal (son of plaintiff No.01) who was sitting idle and since the family members of the plaintiffs are engaged in business of jewellery accordingly, they wanted the suit premises for starting a jewellery shop for him. It is submitted that the trial court has held that though there was no pleading of partial eviction, but it has, on surmises and conjectures, recorded the finding of partial eviction and concluded that allotment of Schedule - C portion of the suit premises would satisfy the need and requirement of the plaintiff/ landlord. It is argued that the first appellate court on consideration and discussion of the evidence and -9- after assigning cogent reasons, has disagreed with the findings of the trial court and reversed the finding of the trial court on the question of partial eviction.

Learned senior counsel has submitted that the Supreme Court, in Sugani Vs. Rameshwar Das & Anr.; AIR 2006 SC 2172, has held that the points of facts which have not been raised in the trial court or the first appellate court, cannot be raised in the second appeal and the question of law, as formulated, do not involve any substantial question of law hence the instant appeal deserves to be dismissed.

13. Heard. In the backdrop of the rival submissions, the moot question which requires determination by this Court is (i) whether the judgment of the first appellate court is founded on sound reasonings for reversing the findings of the trial court; (ii) whether the question of law formulated in the present appeal involves any substantial question of law ?

14. It is not disputed that both the courts below on the basis of the evidence on record have held that the plaintiffs/ respondents have established that their requirement of the suit premises for starting a jewellery business is reasonable and bona fide.

15. On perusal of the trial courts' judgment, it is noticed that the trial court, on the basis of evidence found that the suit premises comprising of Schedule - A, B and C is in a zig zag form measuring 322.5 sq. feet. In paras - 6, 7 and 10, the trial court has held that there is no specific pleading or evidence as to what area of Schedule - A, B

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and C of the suit premises is required by the plaintiff/ landlord. After recording the above findings the trial court, in para - 7, has decided the question of partial eviction stating that the plaintiffs have not disputed the fact that they are not satisfied with the existing jewellery business, being carried on by them, adjacent to the shops in Schedule - A, B & C. While assigning such reasoning, the trial court has failed to appreciate that the question of partial eviction has to be based on the basis of the material evidence and in accordance with the provisions of Section 11(c) of the Act.

In this context it is relevant to take note that the trial court, in para - 10, has discussed the settled legal position that it is the landlord's choice to choose which portion of the suit premises would satisfy his need and requirement, but it has not applied the proposition of law and allotted the western portion of the suit premises, i.e., Schedule - C, opening in the alley situated in a residential area and where there is negligible business activity, observing that Schedule - C would meet the need and requirement of the plaintiff/ landlord as the plaintiffs did not raise any grievance that they were not satisfied with their existing business. Such finding and reasoning of the trial court was uncalled for and in the teeth of the settled proposition.

16. It further appears that the trial court has stated that since the defendant/ tenant has been carrying on the business for past twenty (20) years in the suit premises, therefore he is likely to suffer more as compared to the landlord and has accordingly decided the question of

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partial eviction and allotted the shop situated in the rear portion of the suit premises despite taking note of the settled legal proposition that it is for the plaintiff/ landlord to choose as to which shop belonging to him was more suitable for him for starting his business. It is evident that the trial courts' reasoning on the question of partial eviction is neither here nor there and is self-contradictory and not sustainable in law or on facts.

17. At this stage, it is imperative to reiterate that Explanation - II of Section 11 of the Act, contemplates and provides for giving preference to the landlord to choose as to which of the premises let out by him will satisfy the reasonable need and requirement of the landlord and tenant or tenants shall not be allowed to question such preference of the landlord.

18. In this connection it is pertinent to state that the Jharkhand Building (Lease, Rent and Eviction) Control Act, does not provide or contain any specific provisions postulating or contemplating for assessing and measuring the comparative hardship, advantages and disadvantages to the parties.

The Hon'ble Supreme Court in Budhwanti v. Gulab Chand Prasad; (1987) 2 SCC 153 has held that the application of the test of comparative hardship between the landlord and the tenant was an extraneous test as no such provision has been prescribed or postulated under the Act for going into it's reckoning.

19. in Mst. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by L.Rs. And Ors.; (1979) 1 SCC 273 the

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question for assessing relative advantage and disadvantages to both the parties was considered, because Explanation to Section 11(i)(h) of Jammu and Kashmir Houses and Shop Rent Control Act, 1966, provided for and contemplated for assessment of relative advantages and disadvantages to the parties. It was observed by the Apex Court that it is no doubt true that the tenant will have to be ousted from the house if a decree of eviction is passed but such an event will take place whenever a decree of eviction is passed and merely because the tenant will have to be ousted from the house where he was running his activity cannot, by itself, be considered a hardship and be a valid ground for refusing the landlord a decree for eviction. This decision leans in favour of the plaintiffs/ landlord especially when reasonable and bona fide requirement is made out by the landlord. In the given facts and circumstances the onus shifts on the tenant to establish the comparative hardship and disadvantages for denying the decree of eviction to the landlord. The tenant cannot insist on getting an alternative accommodation of similar nature in the same locality because that will be asking for the impossible.

20. The Hon'ble Apex Court in the case of Bentool Steel Products (P) Ltd. v. O.M.A. Mohammed Omar; (2008) 17 SCC 679 while referring to the case of Bega Begum v. Abdul Ahad Khan; (1979) 1 SCC 273 has held that merely because the tenant will have to be ousted from the tenancy premises on account of a decree for eviction being passed is irrelevant to be considered as a hardship because asking by the tenant for availability of premises similarly

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situated in all respects, the same as the tenancy premises would be asking for almost an impossible and if that factor is to be taken into consideration as a relevant factor, then a decree for eviction would not be liable to be passed in any case at all.

21. The Apex Court in the case of Akhileshwar Kumar v. Mustaqim; (2003) 1 SCC 462 has held that once it has been proved by a landlord that the suit premises accommodation is required bona fide by him and such satisfaction withstands the test of objective assessment by the court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The court cannot thrust its own choice upon the needy. Of course, the choice has to be exercised reasonably and not whimsically.

22. It is pertinent to state that comparative hardship is a question of fact, to be decided on the basis of the evidence on record. The judge of facts should place himself in the armchair of the landlord and put a question to himself -- whether in the given facts established by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest and if the answer is in the positive then the need is bona fide. Once the court records its satisfaction of the reasonable and bona fide requirement of the premises or additional premises then in the matter of choosing out of one accommodation available to the landlord, his subjective choice is to be respected by the court by permitting the landlord to choose the accommodation which the landlord feels would be most

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suited for the purpose. The court would not, in such a case, thrust its own wisdom upon the choice of the landlord by observing that not one but the other accommodation must be accepted by the landlord to satisfy his such need. The need or genuine requirement needs a practical approach instructed by the evidence on record. An approach either too liberal or too conservative or pedantic must be guarded against.

The Court, in the first instance, is therefore required to determine the extent of the premises which the landlord reasonably requires and determine it objectively and not on the basis of his ipse dixit or mere desire to occupy as much as he wants. In fact, the Court has to apply a test as to whether such requirement, as the Court considers reasonable, will substantially satisfy (not fully satisfied) by ordering partial eviction.

23. Now adverting to the argument advanced by the learned senior counsel that the first appellate court has not assigned cogent reasons while reversing the findings of the trial court on the question of partial eviction. It is abundantly clear from perusal of the judgment of the first appellate court, that the appellate court in para - 16 & 17 has elaborately discussed the evidence and the findings of the trial court and has observed that even the defendant was not ready to occupy Schedule - C of the property as it was not suitable for the business as it was situated in the western end of the suit premises where the business activity was insignificant. The learned appellate court has considered the comparative hardship which the parties are

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likely to suffer and held that if the plaintiff's need is established then the question that a twenty year old tenant is likely to suffer more than the plaintiff is unwarranted and irrelevant factor. The appellate court has meticulously examined the evidence and after assigning cogent reasons has reversed the findings of the trial court. In fact, the first appellate court has elaborately discussed the factual and legal aspect and rightly held that it is the discretion of the landlord to exercise his choice as to which portion of the tenanted suit premises will satisfy the need and bona fide requirement for setting up his business.

Thus in view of the reasons assigned by the first appellate court in para - 16 & 17 of the judgment the argument advanced by the learned counsel is not sustainable.

24. The trial court, while deciding the question of partial eviction has allowed Schedule - C of the suit premises which opens in the alley having insignificant business activity, and this will not suit the bonafide need of the landlord for starting the jewellery business for his son.

In view of the findings of the appellate court, it has been established that the landlords have a genuine requirement to possess the suit premises which is suitable for starting the jewellery business. The findings of the appellate court is well reasoned and substantiated by the evidence on record.

25. It is amply clear that the learned trial court as well as the appellate court have recorded a concurrent finding that the entire suit premises, i.e., schedule - A, B & C,

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were required for starting the jewellery business by the plaintiffs and the suit premises is also not much spacious. Considering the evidence on record and the facts and circumstances of the case, no valid reason and ground has been made out to grant decree of partial eviction in favour of the appellant/ tenant.

26. For the foregoing reasons and discussions made hereinabove, in my considered opinion, there is no valid ground or cogent reason to interfere with the findings recorded by the learned appellate court. The questions as formulated are questions of facts and do not involve any substantial question of law. In the result, the second appeal is, hereby, dismissed.

(AMITAV K. GUPTA, J.) High Court of Jharkhand, Ranchi Dated the 08th April, 2021 Chandan/- N.A.F.R.

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