Jharkhand High Court
Kripa Shankar Dwary vs Nandlal Charan Dwary on 18 September, 2006
Equivalent citations: 2007(1)BLJR675, [2007(2)JCR162(JHR)], 2007 (2) AIR JHAR R 305, (2006) 4 JLJR 604 (2007) 2 JCR 162 (JHA), (2007) 2 JCR 162 (JHA)
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
JUDGMENT Narendra Nath Tiwari, J.
Page 0676
1. This civil revision has been preferred by the tenant-defendant under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 [hereinafter referred to as 'the said Act'] against the judgment and decree dated 28.9.05 passed by learned Sub-Judge-III, Deoghar in Title Eviction Suit No. 22/97 whereby the Court below has decreed the landlord-plaintiff's suit and the defendant has been directed to vacate the suit premises.
2. The plaintiff is one of the owners of the suit premises being Holding No. 139, Ward No. 1 under Deoghar Municipality measuring an area of 150'x20' comprising one hall, one room and a tin shed room. The defendant was given the suit premises on lease for a period of seven years commencing from 1.7.90 and expiring on 30.6.97 on a monthly rent of Rs. 500/- by virtue of a registered deed of lease dated 26.6.90. The said lease expired on 30.9.97. The plaintiff now requires the suit premises for his own use and occupation as he has to start a hotel business in the suit premises which is an ideal place for that purpose. The plaintiff has also got sufficient fund to start the said business. The plaintiff requested the defendant to vacate the suit premises, but the defendant did not vacate the same. Hence the suit for eviction.
3. The defendant-petitioner appeared and contested the suit on obtaining leave to contest. In his written statement the defendant admitted the relationship of landlord and tenant, but contested on the grounds, inter alia, that the suit land is a vacant land and the same does not come within the purview of the said Building Act. The defendant had taken on lease vacant land for seven years with renewal clause. The defendant exercised the option of renewal and the lease being renewed for another term, the suit for eviction is not maintainable. The defendant also denied and contested the ground of personal necessity of the plaintiff and contended that the plaintiff has got sufficient alternative accommodation and has no bonafide requirement of the suit premises. The plaintiff does not require the suit premises for business. The plaintiff is the owner of another double storied building situated at Mohalla-Kusnidatta Dwary consisting of several rooms where the plaintiff resides in half portion of first floor and entire ground Page 0677 floor is vacant. The said property is also situated in the heart of Deoghar town just in front of Samrat Hotel which is a commercial area and is suitable for the alleged need of the plaintiff. The plaintiff also has vast agricultural land in Mouza-Marwa, P.S-Sarwan, District-Deoghar and he has also got right to collect gifts at the main door of Lord Shiva temple at Baidyanath Dham out of which he gets sufficient income to maintain the entire family. The plaintiff has thus no bonafide need of the suit premises.
4. On the basis of the pleadings, several issues were framed by learned Trial Court. The parties led their evidences. The plaintiff examined as many as eight witnesses and the defendant examined 21 witnesses. The parties also adduced documentary evidences. The plaintiff proved the deed of lease (Ext.1). The defendant has also proved several documents out of which Ext. A is the notice, Ext. B is the postal receipt, Exts. C series are the money orders receipts, Ext. D is the land receipt and Ext. E is another notice. Learned Trial Court on appreciation of facts and evidences on record came to the findings that there is relationship of landlord and tenant between the parties and that the period of lease expired on 30.9.97 and that the defendant neither took any step for renewal of the lease nor approached the Court under the provisions of Section 18 of the said Act. Learned Court below found that the plaintiff requires the suit premises reasonably for his own use and occupation. Learned Trial Court further held that the plaintiff has got cause of action and the plaintiff is entitled for the relief prayed for in the suit. Learned Court below also held that the partial eviction of the premises shall not fulfil the need of the plaintiff. Learned Trial Court thus decided almost all the issues in favour of the plaintiff and decreed the suit directing the defendant to vacate the suit premises.
5. The said judgment and decree of the Trial Court has been assailed, in this civil revision, on several grounds. It has been submitted that learned Trial Court has failed to properly appreciate the oral and documentary evidences in coming to the finding that the lease of the defendant expired on 30.6.97, without considering the renewal clause mentioned in the lease deed and the option exercised by the tenant-defendant. It has been submitted that learned Court below has not properly appreciated the evidences on record while coming to the said conclusion. Learned Court below has not properly appreciated the evidences adduced by the defendant. Learned Court below has also failed to consider that the vacant land was leased out in favour of the defendant and that he has invested considerable amount and made construction over the same in view of the renewal clause in the lease. It has been further submitted that learned Court below has mechanically dealt with the issue of partial eviction and without application of mind decided the same in favour of the plaintiff contrary to the sprit of the mandatory requirement of the proviso to Section 11(1)(C) of the said Act.
6. Learned Counsel appearing on behalf of the opposite party, on the other hand, submitted that learned Trial Court has discussed the facts, evidences and materials on record in detail and that the findings arrived at by the Court below on proper appreciation of evidences are legal, valid and warrant no interference by this Court in its revisional jurisdiction. It has been submitted that though there was a renewal clause in the lease deed, no such option was exercised by the tenant in accordance with the terms of the lease and the defendant-petitioner has no valid ground to contest his eviction.
7. After hearing the parties and giving thorough consideration on the facts, evidences and materials on record, I find that learned Trial Court has appraised the evidences and Page 0678 considered the facts and materials on record as also the provisions of law and has come to the finding that the defendant-petitioner failed to exercise his option for renewal of the tenancy lease after expiry of the original term and that the plaintiff has proved his case that he requires the suit premises for starting his hotel/restaurant business in the suit premises and that the need is reasonable and bonafide. The said findings are based on thorough appraisal of evidences, facts and relevant provisions of law. I find no weighty ground to disturb the said findings of facts arrived at by learned Trial Court.
8. This Court, however, finds substance in the contention raised on behalf of the petitioner that the issue of partial eviction has not been properly dealt with and decided by learned Court below. Admittedly, the area of the suit premises is 150' x 25' i.e. 3750 Sq. feet. The plaintiff has not brought anything on record to show that his need can not be reasonably satisfied by eviction of the tenant from a part of the suit premises. I find no discussion in the judgment of learned Trial Court regarding the extent and size of the plaintiff's intended hotel business. On perusal of the plaintiff's own deposition, who was examined as PW-8, I nowhere find any such evidence about the business so as to come to the conclusion that the petitioner requires the entire suit premises. In paragraph 8 of his deposition he has only stated that he wants to run a hotel business. He has stated nothing regarding the extent, standard and size of the said business or the amount of investment to be made on the said business. In paragraph 9 he has only stated that he has got capacity for starting a hotel/restaurant business. In paragraph 10 he has stated that the said business cannot be set up in half portion of the suit land. In paragraphs 18 & 19 the has stated that the defendant has established a shop for 'Peda' making (Sweet made of Milk and Sugar generally favoured as 'Prasad' of Baidyanath Dham). The defendant, who was examined as DW-20, has denied the requirement of the petitioner. In paragraph 20 he has stated that he has established and been running a Peda making shop in the suit premises spread over an area of 3750 Sq. feet. The total area of the suit premises is not that small that adjustment of the defendant-petitioner can be ruled out completely without giving a proper thought. Learned Trial Court has completely ignored the said aspect and has casually held that the partial eviction is not possible without coming to the conclusion on the size and extent of the hotel business which the plaintiff wants to start in the suit premises and without exploring the possibility of substantial satisfaction of the need of the landlord by evicting the defendant partially from the suit premises. Learned Trial Court has come to the conclusion as thus:
It is also the admitted facts that the suit property where there is a structure of an area of 200 sq. Feet is not sufficient to fulfil the desire of the plaintiff if the decree of partial eviction is passed. It will neither be convenient for the defendant nor it will fulfil the plaintiff's requirement so in that circumstance unless the eviction of the whole structure is done, the requirement of the plaintiff cannot be fulfilled. So in view of the case law, I find that in this suit partial eviction is not possible.
(Underlining is mine) While coming to the said conclusion, learned Court below failed to take into consideration that the total area of the suit premises is 3750 Sq. feet and the plaintiff has sought eviction from the entire area and not only the area of the structure covering 200 Sq. feet. Learned Trial Court came to the said finding on the basis of a decision in which the area in question was only 80 Sq. feet and the same has got no relevance with the area in the instant suit which is large one. Being misled by the said area of structure, learned Trial Page 0679 Court has held that to start a business of hotel and restaurant for fooding and lodging, if the area of 200 Sq. feet is bifurcated, the plaintiff's requirement cannot be fulfilled. The plaintiff has sought eviction from the entire suit premises area which measures 3750 Sq. feet and not only from the area of 200 Sq. feet of the alleged structure.
9. The proviso to Section 11(1)(c) of the said Act makes it mandatory for the Court to pass a decree of only partial eviction if the Court considers that the reasonable requirement of the landlord may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest part, if the tenant agrees to such occupation. Section 2(b) of the said Act defines 'building' as any building, or hut or a part of the building or hut, let or to be let separately for residential or non-residential purposes and also includes the garden, grounds and outhouses, if any, appurtenant to such building or hut or part of such building or hut etc. A ground appertaining to the structure also comes within the definition of the building. Proviso to Clause c of Section 11(1) of he said Act dealing with partial eviction is the mandatory provision. It is obligatory on the part of the Court to find out whether the requirement of landlord can be substantially satisfied from partial eviction. The eviction order passed without such consideration is bad and unsustainable. The finding on partial eviction by learned Court below is not based on due consideration of evidences and material on record and is perverse and unsustainable. The said finding of the Court below is, hereby, set aside. The case is remitted to the Trial Court for fresh consideration only on the said issue of partial eviction in accordance with law. It is made clear that this Court has not disturbed the other findings of facts arrived at by learned Court below except the finding of partial eviction. The parties will appear before the Trial Court on 31.10.06, on reopening of the Court after annual vacation. The Trial Court thereafter fix a date in the presence of the parties and then shall proceed with the hearing of the case. The Court below shall afford opportunity of hearing to the parties on the issue of partial eviction. Learned Trial Court at its discretion may also allow the parties to lead evidences, if the evidences and materials already available on record are not found sufficient to come to a just decision. Learned Trial Court shall dispose of the case within a period of three months from the date of commencing the hearing. This civil revision is allowed to the extent indicated above. However, there is no order as to costs.