Patna High Court
Kaushal Kishore Pd. & Ors vs Shobha Gupta & Ors on 30 January, 2013
Equivalent citations: AIR 2013 (NOC) 240 (PAT.)
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.516 of 2011
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1. Kaushal Kishore Prasad
2. Vijay Kumar @Jatta
3. Anil Kumar @ Tuntun
4. Om Prakash @ Mannu
5. Krishna Prasad @ Dada
Sons of late Dasarath Prasad
6. Asha Devi
7. Raj Kumari Devi
8. Prem Lata Devi
Daughters of late Dasarath Prasad
9. Bachhaji @ Bachha Prasad Son of Late Gaya Prasad
All resident of Mohalla-Sahebganj (Kaprapatti), P.S.-Chapra Town, District-
Saran.
(Defendants-Respondents) .... Appellants
Versus
1. Shobha Gupta wife of Late Devendra Nath Gupta
2.Gaurav
3. Saurav
Minor sons of late Devendra Nath Gupta, Marfat Motawali-Shboha Gupta
4. Muralidhar Prasad son of Late Gorakh Nath Sah
All resident of Mohalla Sahebjanj (Kaprapatti), P.S. Chapra Town,
Dist.-Saran
(Plaintiffs-Appellants) .... Respondents
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Appearance :
For the Appellant/s : Mr. Shravan Kumar, Sr. Adv.
Mr. Dinesh Maharaj
For the Respondent/s :
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL JUDGMENT
Date: 30-01-2013
Heard Mr. Sharvan Kumar, learned Senior Counsel appearing
on behalf of the appellants.
2. This appeal under Section 100 of the Code of Civil
Procedure has been placed for hearing under Order 41 Rule 11 of the
Code. The appellant is aggrieved by the judgment and decree dated
2 Patna High Court SA No.516 of 2011 dt.30-01-2013
P2 / 14
28.07.2011passed in Eviction Appeal No. 2 of 2010 by the 2 nd Additional District Judge, Saran at Chapra whereby he has set aside the judgment dated 27.04.2010 and decree dated 10.05.2010 passed in Eviction Suit No. 41 of 1987 by learned Civil Judge-I, Junior Division, Saran, Chapra. The learned Civil Judge has dismissed the suit for eviction which was filed on the ground of personal necessity.
3. The appellants herein are the tenants and were defendants before the Trial Court.
4. Before entering into the merits of the dispute raised before the Trial court it would be apt to take note of the time taken by trial court in disposal of eviction suit filed on the ground of personal necessity of the landlord. Eviction suit was filed in the year 1987 by Devendra Nath Prasad (Original Plaintiff No. 1) and Murlidhar Prasad (Plaintiff No. 2 / Respondent No. 4) on the ground that they required the premises for their personal occupation. There is no dispute over the relationship of landlord and tenant between the parties. The suit remained pending for more than two decades. It appears from the judgment / decree of the Courts Below that original plaintiff No. 1 died in the year 2003. It also appears from the order of learned First Appellate Court that defendant No. 1 died on 07.10.1997. It further appears that on the death of the parties, their legal heirs got themselves substituted in place of such parties. Written statement was filed on behalf of the substituted heirs of the original defendant on 3 Patna High Court SA No.516 of 2011 dt.30-01-2013 P3 / 14 17.02.2007. After nearly 22 years, issues were framed by the learned Trial Court on 16.06.2009. The judgment of the Trial Court came to be delivered on 27.04.2010, rejecting the plea of personal necessity of the plaintiff, as according to learned Trial Court, such claim for personal necessity was not bona fide. Landlords (Plaintiffs) preferred appeal before the First Appellate Court. Learned First Appellate Court reversed the findings of the Trial Court holding that the land owner had bona fide personal necessity of occupation of the house for themselves and accordingly passed a decree of eviction from the suit premises vide the judgment and decree dated 28.07.2011.
5. At this stage, I would like to refer to Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 which lays down special procedure for disposal of cases for eviction on the ground of bona fide requirement. From the bare reading of the provision it will appear that the legislature intended to make provision expeditious disposal of such cases. However, as has been noted above the disposal of eviction suit took nearly twenty three years at the first stage.
6. Now, coming to the case of the parties before the Trial Court, findings of the Trial Court and that of the Appellate Court. The original plaintiff No. 1 Devendra Nath Prasad and his younger brother Murlidhar Prasad (Respondent No. 4) filed suit against original defendant Gaya Prasad and his son Baccha ji in respect of two rooms 4 Patna High Court SA No.516 of 2011 dt.30-01-2013 P4 / 14 in the first floor of the double-storeyed building situated in Mohalla Sahebganj (Kaprapatti) holding No. 62, Circle No. 1, Ward No. 9 within Chapra Municipality. Their claim was that the original plaintiff intended to get married and his younger brother Murlidhar Prasad plaintiff No. 2, wanted to pursue his study and settle at Chapra in the said two rooms i.e., the tenanted premises. The appellants' claim is that the plaintiff pursued the matter very casually and he was examined on 22.06.1995 (P.W.-4). As has been noted above and this fact is not in dispute that during the pendency of the suit, plaintiff No. 1 in fact married but unfortunately he died and in his place his wife Shobha Gupta and her two minor children were substituted. The original defendant Gaya Prasad also died and in his place his legal heirs were substituted.
7. From the judgment of learned Trial court it appears that the substituted defendants in their written statement developed a story of contract for sale of the said house to the defendant for which, according to them a sum of rupees ten thousand had already been paid to the plaintiffs in advance. The defendants claimed that the plaintiff had got several houses and shops in Chittoni village.
8. The issues were framed by the Trial Court. Evidences were led to support the case of personal necessity. It was pleaded on behalf of the plaintiffs that they had no other house in any municipal town and they wanted to live in the house and further privacy demanded 5 Patna High Court SA No.516 of 2011 dt.30-01-2013 P5 / 14 that the defendants should leave the suit premises.
9. Learned Trial court on the basis of the material available came to the following findings:-
"From the above discussion it is quite clear that for personal need the crucial date is the date if filing of the suit, but in this case after perusal of the record and going through the statement of P.W. and D.W.s, I am of the opinion that certainly during the filing of the suit plaintiff claim for personal necessity but up till today personal necessity as claimed by the plaintiff as of now exist." (Quotes-verbatim)
10. The learned Trial Court, however, held that only wish of the plaintiff to evict the defendants was not enough but dire necessity was required to be established. Learned Trial Court held that the plaintiffs were able to prove their claim of personal necessity and accordingly dismissed the suit.
11. Learned Appellate Court however, on re-appreciation of evidence and material on record including the deposition of P.W.s took note of the subsequent events during the pendency of the suit and held that the plaintiffs had bona fide requirement of the premises in question for their own occupation. On the basis of the evidence learned Appellate Court came also to the conclusion that the construction of the house was such that if tenants continued to stay in the said house, their presence would breach the privacy of the family of the plaintiffs. The learned First Appellate Court came to the 6 Patna High Court SA No.516 of 2011 dt.30-01-2013 P6 / 14 finding that the case of the defendants of agreement for sale of the said house in their favour could not be proved. Learned Appellate Court accordingly allowed the appeal and directed the defendants to handover the vacant possession of the suit property in favour of the Respondents-plaintiffs.
12. Assailing the order of the First Appellate Court, Mr. Shravan Kumar, learned Senior Counsel has vehemently submitted that the Appellate Court failed to take into account the events subsequent to institution of the eviction suit. He submitted that original personal necessity as pleaded was that the plaintiff No. 1 desired to get married and settle down at Chapra and the other plaintiff desired to study at Chapra. Since plaintiff No. 1 got married sometimes in 1992 and died sometimes in 2003 and the other plaintiff left the studies sometimes in 1992, the whole claim of personal necessity got overshadowed by these subsequent events. He submitted that the legal heirs, who substituted themselves in place of plaintiff No. 1 did not assert their existing personal necessity and therefore, the finding of the Appellate Court is illegal. He further argued that there was lack of bona fide in the plaintiffs' claim of personal necessity and added that in fact the plaintiff never resided in the house in question. He submitted that the plaintiffs should have lived in the remaining portion of the house and only if they experienced any difficulty they could have raised the claim of 7 Patna High Court SA No.516 of 2011 dt.30-01-2013 P7 / 14 personal necessity. According to him, no one in the Plaintiffs' family visited the township of Chapra and, therefore, there was no element of personal necessity for the landlord to claim in the eviction suit. He asserted that element of personal necessity, whatsoever, evaporated with the death of the original plaintiff and the family having undergone several changes.
13. Learned Senior counsel, with reference to the judgments of the Apex Court reported in 2009(10) SCC 193 Mohd. Ismail V. Dinkar Vinayakrao Dorlikar and 2009 (10) SCC 197 Jai Prakash Gupta (Dead) through Lrs. V. Riyaz Ahmad and another has contended that the learned First Appellate Court should have considered the subsequent events which could not have been ignored. He has also placed reliance on judgment of the Apex Court reported in 1999(8) SCC 1 Raghunath G. Panhale (Dead) by Lrs. V. Chaganlal Sundarji and Co. and 2001 (5) SCC 705 Deena Nath Vs. Pooran Lal, in order to contend that mere a wish for the landlord to evict the tenant is not a genuine requirement, there must be more than such wish.
14. As has been noted hereinabove, learned Trial Court has at one stage held that uptil the date of decree the personal necessity as claimed by the plaintiff existed. However, learned Trial Court held that only wish is not sufficient, there must be dire necessity which according to him was absent and there was no personal necessity of 8 Patna High Court SA No.516 of 2011 dt.30-01-2013 P8 / 14 the nature showed by the plaintiff.
15. Learned Appellate Court, on the basis of the available material has considered the aspect of comparative necessity also on the basis of evidence and has recorded that the defendant works as a manager in a liquor shop in Siwan district and is a resident of Bhojpur district. Therefore, he did not have such requirement of house at Chapra town whereas the plaintiffs needed the house being a newly wedded and mother of small child. It is the case of the appellants that these findings of facts by the learned Appellate Court are perverse or contrary to the material on record. The contention on behalf of the appellant, as has been noted above is that because of subsequent events the element of personal necessity evaporated. The substituted plaintiffs could have resided in the remaining portion of the house if they faced any difficulty they could have amended the plaint or approached the Court for eviction on fresh grounds.
16. Having taken notice of the facts, findings of the Courts below and the submissions advanced on behalf of the appellant, following two issues crop up for determination in the present case:-
(1) What should be the crucial date for determination of personal necessity or bona fide requirement of a landlord for occupation of the house for his own purpose, if certain events have taken place subsequent to filing of the eviction suit?
(2) Whether in view of subsequent events, suit was rightly 9 Patna High Court SA No.516 of 2011 dt.30-01-2013 P9 / 14 dismissed by learned Trial Court in the absence of any amendment in suit raising fresh grounds of personal necessity?
17. These issues have to be dealt with keeping in mind the long pendency of the eviction suit before the Trial Court as has been noted hereinabove.
18. Dealing with such issues the Apex Curt in its judgment reported in 2001 (2) SCC 604 Gaya Prasad V. Pradeep Srivastava taking note of several earlier pronouncements held in paragraph 15 as follows:-
"The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused."
19. In case of Gaya Prasad Vs. Pradeep Srivastava (supra) the landlord had filed the eviction suit on the ground that his son had passed matriculation examination and wanted to carry on medical practice and the plea was need for his clinic. The other plea was that the landlord himself had just retired from Railway service and wanted to start radio repairing shop. During pendency of the suit, appeal and 10 Patna High Court SA No.516 of 2011 dt.30-01-2013 P10 / 14 writ petition before the High Court, the son had joined the provincial medical service after 12 years of the institution of the case and in that background a plea was raised that in view of subsequent events the alleged ground for eviction stood overshadowed.
20. Hon'ble Apex Court while dealing the issue held in paragraph-10 of the judgment as follows:-
"We have no doubt that the crucial date for deciding as to the bona fidies of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow- process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or 11 Patna High Court SA No.516 of 2011 dt.30-01-2013 P11 / 14 his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period."
21. It is true that the subsequent events cannot be ignored outright while deciding a issue relating to eviction on the ground of personal necessity but at the same time the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that need propounded by the petitioning party should have been completely eclipsed by such subsequent events.
22. Reference may also be made in this regard to another judgment of the Apex Court reported in 2004(8) SCC 490 Pratap Rai Tanwani and another V. Uttam Chand and another wherein the Apex Court again took into account the usual delay in disposal of cases and made strong observations relying upon the earlier judgment in case of Gaya Prasad Vs. Pradeep Srivastava (Supra).
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23. In the present case the admitted position is that the landlord had filed a suit for eviction on the ground of personal necessity with the plea that he was going to get married and secondly plaintiff No. 2 who was his younger brother was to pursue his study in Chapra town. Fact remains that plaintiff No. 1 got married in course of time. Unfortunately, he died leaving behind his widow and two children which fact is not in dispute. This is also not in dispute that plaintiff No. 2 did not pursue his study and the family is living in village Chittoni and are engaged in agriculture. This is also not in dispute that the suit premises is the only house owned by the plaintiff located in a municipal town. In such circumstances, it cannot be said that subsequent events overshadowed the bona fide need. I am of the definite opinion that the plea of subsequent events as highlighted by Mr. Shravan Kumar, learned Senior Counsel are too insufficient to overshadow the bona fide need of the plaintiffs.
24. I am also of the view that if a landlord seeks eviction on the ground of personal necessity or occupation of the house by himself or by his family members, the right to sue will survive even after his death as the family members can still pursue the claim for occupation of the house for their own purpose.
25. Learned Senior Counsel for the appellant has relied on the Apex Court judgment reported in 2009 (10) SCC 193 Mohd. Ismail V. Dinkar Vinayakrao Dorlikar to contend that the Courts below should 13 Patna High Court SA No.516 of 2011 dt.30-01-2013 P13 / 14 have considered the subsequent events. I find from the judgment of the learned First Appellate Court that the subsequent events have been considered duly and I do not find any infirmity in the findings of learned First Appellate Court on the issue as to whether the subsequent events overshadowed the claim of the plaintiff for eviction on the ground of personal necessity. As regards the another judgment of the Apex Court reported in 2009 (10) SCC 197 Jai Prakash Gupta (Dead) through Lrs. Vs. Riyaz Ahamad and another, relied upon by learned Senior Counsel for the Appellants, I am of the view, firstly that the issue of subsequent events in the present case are not such as to eclipse the very basis of the claim of personal necessity.
26. Plea has been taken that claim of personal necessity in any event was not bona fide as the plaintiffs were not ready to accept partial eviction and secondly the plaintiffs were predisposed against the appellants only, raising no grievance against other tenants. I have perused judgment of learned First Appellate Court, I find that learned First Appellate Court has discussed in detail the location of the suit premises and rooms and spaces available therein. I do not find it is a fit case to go into the correctness of findings of fact arrived at by learned First Appellate Court; in exercise of power under Section 100 of the Code of Civil Procedure.
27. There is another aspect of the matter which also can be lost sight of. The tenants while opposing the claim of the landlord of 14 Patna High Court SA No.516 of 2011 dt.30-01-2013 P14 / 14 personal necessity developed a story of agreement for sale of the house itself in favour of the tenants which could not be proved as it was neither supported by any documentary evidence nor proper oral evidence. This raises a question mark over the intention of the Appellant over the suit property.
28. In such view of the matter, I find no merit in the appeal. This appeal is, accordingly, dismissed.
29. The appellants are directed to handover the vacant possession of the suit premises in favour of the Respondents within two months from today, failing which the Respondents shall be entitled to get the house vacated through process of law.
(Chakradhari Sharan Singh, J.) Saif/-N.A.F.R.