Patna High Court
Umesh Kumar Verma vs Chandrika Pd. Singh (Since Deceased) ... on 11 February, 1998
Equivalent citations: AIR1998PAT166, 1998(46)BLJR1353, AIR 1998 PATNA 166, (1999) 1 RENCR 224, (1998) 1 PAT LJR 732, (1999) 1 RENCJ 617, 1998 BLJR 2 1353, (1998) 1 BLJ 839
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. This civil revision application under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "the said Act") is directed against the judgment and decree dated 10-1 -1997 passed by Munsif 1st, Begusarai, in Title (Eviction) Suit No. 15 of 1995 decreeing the suit of the plaintiffs-opposite parties for eviction of the defendant-petitioner from the shop premises on the ground of personal necessity.
2. Plaintiff No. 2 is the son of plaintiff I. Both the plaintiffs filed the aforesaid suit against the defendants for their eviction from the suit premises on the ground of personal necessity. The plaintiffs' case, inter alia, is that they constituted a joint Hindu family and because of old age of the plaintiff No. 1, the property is managed and looked after by his only son, plaintiff No. 2, who has been realising rent from the defendants of three shops of three storied building owned and possessed by the plaintiffs in Mohalla Dakbungalow chawk, Bishunpur, Begusarai. The plaintiff's further case is that the three defendants were inducted as tenants in three shop-rooms separately on the ground floor of the building on monthly rent of Rs. 250/-. The plaintiffs have a small family consisting of only six members including a servant occupied the entire first floor and two rooms, Sehan and garage in the ground floor of me building. The second floor is occupied by the son-in-law of plaintiff No. 2 who lives with his wife and children since after his marriage held in the year 1992. The plaintiffs further case is that the only son of plaintiff No. 1 i.e. plaintiff No. 2 has no son, but two daughters; one married to a Doctor and another is still unmarried and the family, having no male lineal descendant, have reared love for them and do not want them to keep away from their sight, The plaintiffs alleged to have bona fide need and personal requirement of the ground floor of the three storied building for starting a clinic for the Doctor-son-in-law so that he may start his practice and at the same time live in the same building. It is pleaded that for the last one year plaintiff No. 2 has been insisting upon the defendants to vacate the suit premises, but the defendants were not paying any heed. It is further pleaded that the son-in-law of plaintiff No. 2 has passed M.B.B.S. examination in the year 1989 and is unemployed and it is the duty of the plaintiffs to settle him in life. The plaintiff, therefore, made out a case of personal necessity and sought a decree lor eviction by instituting the aforesaid suit.
3. The defendants contested the suit by filing their separate written statement. Defendant No. 2 in his written statement admitted the claim of the plaintiffs and agreed to vacate the premises in his occupation by January, 1996. Similarly Defendant No. I filed a separate written statement of a few paragraphs admitting the claim of the plaintiffs and agreeing to vacate the suit premises by January, 1996. In fact, Defendant No. 3, who is the sole defendant, has contested the suit by filing detail written statement. The said defendant-petitioner denied and disputed every allegations made in the plaint and stated that Defendants Nos. I and 2 are in collusion of the plaintiffs and they have been impleaded in the suit only for the purpose of fake requirement of personal necessity. The defendant's case, inter alia, is that it is the plaintiff No. I who looks after the management of the properties in question and this defendant was inducted by him as a tenant in June, 1992 on a monthly rent of Rs. 300A. Defendants Nos. 1 and 2 have subsequently been inducted by Plaintiff No. ] in the shop premises on a monthly rent of Rs. 600/-. Since the business of this Defendant No. 3 has flourished, the plaintiffs in order to exploit the situation demanded enhanced rent of Rs. 600/- and on refusal just to fulfil his evil design the plaintiffs have insisted the defendants to vacate the premises. The defendant, therefore, moved the Controller for fixation of rent in the year 1995 and in retaliation the instant suit for eviction has been filed. The defendant-petitioner denied that the plaintiffs' son-in-law is living in the second floor of the suit premises with his wife and children. As a matter of fact, the son-in-law of Plaintiff No. 2 is doing M.S. at U.M.C. at Darbhanga, and is living in a hostel and the daughter of Plaintiff No. 2 lives at her Sasural. The defendant's further case is that the son-in-law of Plaintiff No. 2 himself possessed landed properties and he is the only son of his father and he has four pucca buildings and several shops. The pucca building of the son-in-law of Plaintiff No. 2 is just by the side of pitch-road. The plea of personal necessity is, therefore, false frivolous and baseless. Defendant No. 3 further denied the fact that the son-in-law of Plaintiff No. 2 is living independently.
4. The learned Court below on the basis of the pleadings of the parties framed the following issues :
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs any cause of action of right to sue?
(iii) Is the suit barred by the principles of estoppel, waiver or acquiescence?
(iv) Have the plaintiffs personal necessity of the suit premises?
(v) Is the partial eviction of suit premises possible?
(vi) Are the plaintiffs entitled to the decree prayed?
(vii) Are the plaintiffs entitled to any other relief or reliefs?
5. Learned Court below decided all the issues in favour of the plaintiffs and decreed the suit. On the issue of personal necessity, the Court below took the view that the case of the personal necessity cannot be rejected merely on the ground that the son-in-law of Plaintiff No. 2 has his own buildings near the suit premises. According to the Court below, the need of the plaintiffs cannot be said to be the need of the father of Dr. Sanjiv Kumar Singh, son-in-law of Plaintiff No. 2, Learned Court below also came to the finding that since it is the pious desire of the plaintiffs to keep their son-in-law before their eyes by settling him in the ground floor of the building premises, the need of the plaintiffs is genuine and bona fide. On these grounds, the suit was decreed. Hence this Civil Revision.
6. Mr. Keshav Srivastava, learned Senior Counsel appearing on behalf of the petitioner assailed the impugned judgment and decree passed by the learned Court below as being illegal and without jurisdiction. Learned counsel submitted that the Court below has committed serious illegality in deciding the issue of personal necessity. Learned counsel for the petitioner further submitted that while deciding the issue of personal necessity the Court below has based its finding on extraneous consideration and has failed to appreciate the settled principles of law. Learned counsel has drawn my attention to the evidence of the Plaintiff No. 2 and his son-in-law who were examined and submitted that on their own evidence it can safely be concluded that the alleged requirement is not bona fide and in good faith. Learned counsel submitted that in any view of the matter the decree for eviction on the ground of personal necessity of Dr. Rajiv Kumar Singh cannot be sustained in law for the reason that admittedly the son-in-law of Plaintiff No, 2 is not dependent on the plaintiffs and he has already started practice in different place. Moreover, the son-in-law of Plaintiff No. 2 has his own double storied pucca building which is lying vacant.
7. On the other hand, Mr. Shiv Nandan Rai, learned Sr. Counsel appearing on behalf of the plaintiffs-opposite parties supported the judgment and decree and submitted that the Court below has considered the entire facts and the evidence brought on the record and has come to a finding of fact. According to the learned counsel, since the finding arrived at by the Court below is based on finding of fact, this Court in exercise of rcvisional jurisdiction should not reappraise the evidence and disturb the said finding. Learned counsel further submitted that the judgment and decree passed by the Court below is in accordance with law and there is no reason to interfere with the same.
8. First I will take up the points raised by the learned counsel appearing on behalf of the plaintiff-opposite parties. According to the learned counsel for the opposite parties, this Court in exercise of revisional jurisdiction should not reappraise the evidence and disturb the findings of fact based on evidence. I do not find any force in the submission of the learned counsel. The scope and power of this Court under Section 14(8) of the said Act has been considered by various Courts at many occasions and the question is no longer res integra. It is well settled that this Court in exercise of power under Section 14(8) of the said Act not only can consider the questions which are permissible under Articles 226 and 227 of the Constitution of India as also under Section 115 of the Code of Civil Procedure, but also consider whether the trial Court has arrived at finding of fact upon erroneous consideration of legal provision. It is equally well settled that power of revision of this Court is wide enough and not confined to merely examine the legality. If the finding is perverse in law, that is not supported by evidence or if the Court arrived at a finding of fact ignoring the relevant matter and based its decision on irrelevant matter or on extraneous consideration, the High Court will certainly have jurisdiction to interfere with the said finding.
9. I shall now consider the finding arrived at by the Court below on the issue whether plaintiffs require the suit premises reasonably and in good faith and the same is in accordance with law. Before deciding the issue it would be useful to quote Section 11(1)(C) of the said Act which reads as follows :
"11(1) :- Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, wherea tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds :-
(a)to(b) xxxxxxxxxxxxxxxxxxx xxx-xxxxxxx
(c) Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord :
Provided that where the Court thinks that the reasonable requirement of such occupation 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 and the tenant agrees to such occupation, the Court shall pass adecree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the building with the meaning of clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under Section 5."
10. From bare reading of the aforesaid provision it is manifest that a landlord may seek eviction where the building premises is required by him for his own bona fide personal necessity or fur the necessity of any person in whose benefit building premises is held. Not only that the plaintiff-landlord has also to prove that the plaintiff or the person for whose benefit eviction is sought is the owner of the property and has a right to occupy the same in his own right.
11. The words "reasonable requirement" time and again have been interpreted by various Courts. The consistent view is that the words "reasonable requirement" do not mean a mere desire of the landlord to use the premises either for himself or for any member of his family. In the case of Mattulai v. Radhe Lal, (1974) 2 SCC 365 : (AIR 1974 SC 1596), the Apex Court has considered the question and held as follows (At Pp. 1602-03 of AIR):
"The question would still remain whether there were proper grounds on which the finding of fact could be interfered with by the High Court. It is now well settled by several decisions of this Court including the decisions in Sarvata T.B.'s case (1966 MPLJ 26) (supra) and Smt. Kamla Soni's case (AIR 1969 NSC 186) (supra) that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bona fide. The word "required" signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show - the burden being on him - that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business. The Additional District Judge did not misdirect himself in regard to these matters, as for example, by misconstruing the word "required" or by erroneously placing the burden of proof on the appellant and no error, of law was committed by him in arriving at the finding of fact in regard to the question of bona fide requirement of the respondent, which would entitle the High Court in second appeal to interfere with that finding of fact."
It is therefore, clear that in a suit for eviction on the ground of personal necessity, main test should be whether it is necessary for the landlord to evict the tenant for his personal use and occupation and that need is bona fide.
12. In the light of law laid down by the Supreme Court, I have to examine the evidence adduced by the parties particularly of the plaintiffs to find out as to whether the requirement of the plaintiffs is genuine or not. As noticed above, the plaintiffs' specific case is that the plaintiffs have no linial descendant and plaintiff No. I has only son plaintiff No. 2 who has two daughters, one is married with a Doctor and that the plaintiffs want to keep their son-in-law before their eyes by opening a clinic for him in the ground floor of the building premises. There is no pleading that the son-in-law of the plaintiffs after completing his studies is sitting idle and unemployed and he has no place other than the suit premises where he could start his practice. Plaintiff No. 2 examined himself as P.W. 1. Although he has stated in his evidence that he wants to open a clinic in the suit premises for his son-in-law, but in the cross-examination he has very categorically stated that his son-in-law is doing M.S. at D.M.C. at Darbhanga and his father has got a pucca building. He has further admitted that his son-in-law is the only son of his father and his building is situate near the suit building in the southern side. He further admitted that the building owned by the fatherof the son-in-law is lying vacant. He further admitted that his son-in-law has very cordial relation with his parents. The plaintiffs also examined Dr. Sanjiv Kumar Singh (son-in-law) as P.W. 2. In the very first paragraph of examination-in-chief this witness has said that his father-in-law requested him to open a clinic in the ground floor of the suit premises. The witness further said that he practised in Begusarai and his father-in-law does not want him to keep away from his eyes. The witness further said that he earned about 3 to 4 thousand from his practice at Begusarai. The witness further admitted that he has got his own building just adjacent to the clinic of Dr. S.S. Rai. He further stated that there is motorable road where his building and the clinic of Dr. S.S. Rai situate. On the other hand, the defendants have examined seven witnesses in all who have consistently supported the fact that the plaintiff have no personal necessity.
13. It is, therefore, manifest from the evidence of plaintiff No. 2 and his son-in-law that the plaintiffs desire to open a clinic in the ground floor of the building premises for their son-in-law. The only purpose for which the plaintiffs requested their son-in-law to start his practice in the building premises is to keep him near their eyes. Admittedly the building premises owned by the son-in-law is lying vacant and the same is near to the suit building. There is no positive evidence adduced by the plaintiffs that the building owned by the father of the son-in-law is not suitable for medical practice. On the contrary, just adjacent to that building there is a clinic of Dr. S.S. Rai. In my opinion, therefore, the building owned by the son-in-law is rather more suitable for opening clinic. It cannot be believed that if the son-in-law of the plaintiffs starts his clinic in his building premises then he would go beyond the sight of the plaintiffs. There is no evidence to the effect that the building owned by son-in-law cannot be converted into clinic. It is well settled that if suitable alternative accommodation is available to the landlord then the requirement cannot be said as bona fide and in good faith. Plea of the landlord that he has unfettered right to fulfil the requirement as per his choice cannot be accepted. The landlord has to prove that alternative accommodation is not suitable to meet the requirement. In the case of M.M. Qasim v. Manohar Lal, AIR 1981 SC 1113, the Apex Court held as under (Para 18):
"This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Act in almost all States in the country. The time honoured notion that the right to re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Act specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining it case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison d'etre of the Rent Act, undoubtedly if it is shown by the tenant that the landlord has some other vacant premises in his possession that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted, and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of the necessities of life-shelter and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe."
14. The Apex Court in another case of P.OOR and Sons (P.) Ltd. v. Associated Publishers (Madras) Limited, reported in (1991) 1 SCC 301, while interpreting the words "bona fide requirement" held that reasonableness of requirement should be considered with caution and care in the totality of the circumstances in the light of legislative object to protect and safeguard the tenant from eviction at the will and test of the landlord. While the landlord is entitled to bona fide enjoyment of his property, the law still insist as a measure for social necessity that the Court should be satisfied with the genuineness of the requirement of the landlord.
15. In the case of Ramesh v. A. Bal Reddy, (1990) 3 SCC 583 : (AIR 1990 SC 1376) the Apex Court was considering similar nature of case where the fact was that a suit for eviction was filed by the landlord on the ground to set up his married daughter, a Doctor, by opening a separate clinic in the premises. When the eviction suit was filed, the landlord's daughter was studying in M.S. and her husband was also a Doctor and was running a clinic at a distance of six miles. The respondent-landlord's daughter was assisting her husband in his clinic, but it was claimed by the landlord that she desires of starting a separate clinic and for that purpose the premises in question was suitable. The suit was dismissed by the Controller holding that the landlord was in possession of several other premises. However, finding was reversed in appeal and the tenant's revision application was dismissed by the High Court. The matter came to the Apex Court and it was held as under (At p. 1377 ol AIR):
"The Rent Controller was also right in relying upon the manner in which R. C. No. 535 of 1977 had been filed by the respondent-landlord against another tenant Babu which was later withdrawn when Babu agreed to pay higher rent. It is also relevant to note that the respondent's daughter and her husband are on good terms and she was assisting him in his clinic when the case was filed. Both being doctors, it is expected that the husband would be able to take care of the necessities of the wife and there is nothing to suggest that the respondent's daughter had to depend on her father in any manner. In this situation the requirement pleaded by the respondent in his application is a fanciful wish and cannot be accepted as a good ground for a decree for eviction. We, therefore, set aside the decisions of the City Small Causes Court and of the High Court and restore the judgment of the Additional Rent Controller, Hyderabad. This appeal is, accordingly, allowed with costs throughout."
16. Having regard to the facts and circumstances of the case and the points of law discussed herein above, I am of the definite opinion that the requirement so pleaded by the plaintiffs are nothing but a desire to insist the son-in-law to start clinic in the premises and there is no element of any need. The Court below has not considered the matter in its right perspective and failed to appropriate the correct law. The judgment and decree passed by the Court below, therefore, cannot be sustained in law.
17. One more important fact which gives rise to suspicion and doubt in the plea of personal necessity is that admittedly three shops in the down floor as the building premises were let out by the plaintiffs to three persons and all the three persons (defendants in the suit) occupying shop premises as tenants having independent terms and conditions of the tenancy. Despite the same, although one suit for eviction of three different tenants occupying three different portions of the suit premises being not maintainable, the plaintiffs filed one suit impleading three defendants and seeking decree for eviction of the tenants in respect of different portion of the property. Immediately after the institution of the suit, the two defendants appeared and admitted the plea of the plaintiffs and agreed to vacate the premises. The circumstances under which a single suit was filed and the two defendants supported the case of the plaintiffs strongly suggest the connivance of these two defendants with the plaintiffs just to evict the petitioner, who is contesting the suit. In my view, therefore, the conduct of the other two defendants shall not in any way improve the case of the plaintiffs about bonafide personal necessity.
18. For the reasons aforesaid this civil revision application is allowed and the judgment and decree passed by the Court below is set aside.
However, there shall be no order as to costs.