Patna High Court
Radhey Shyam Sah vs Krishna Prasad Gupta on 13 September, 2016
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.257 of 2006
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Radhey Shyam Sah s/o Late Bouka Sah, resident of Mohalla Chowk Bazar near
Azad chowk, P.O. Kotwali, P.O. Munger, Distt. Munger.
.... .... Appellant/s
Versus
Krishna Prasad Gupta s/o late Indu Shekhar Prasad Gupta, resident of Mohalla Fort
Area P.O. Kotwali, P.O. Munger, Distt. Munger carrying on business at Mohalla
Chowk Bazar, near Azad Chowk, P.O. Kotwali, P.O. Munger, District Munger.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Birendra Kumar Singh, Adv
For the Respondent/s : Mr. J.K. Verma, Adv
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 16-09-2016 Heard Mr. Birendra Kumar Singh, learned counsel appearing for the appellant and Mr. J.K. Verma, learned counsel appearing for the respondent.
2. The plaintiff is the appellant in this appeal against the judgment and decree of affirmance granting the decree of eviction to the plaintiff for the part of the suit premises only.
3. The relationship of landlord and tenant between the plaintiff and the defendant is not in dispute. The tenant has been in occupation of the suit premises which is a shop measuring 10 feet North to South and 13 feet East to West in a market place. The plaintiff filed the suit for eviction of the tenant-defendant on the Patna High Court SA No.257 of 2006 dt.16-09-2016 2 ground of personal necessity for establishing a Sanitary Ware Shop for his younger son in the suit premises. The trial court decided the issue of personal necessity in favour of the plaintiff. However, while considering the issue of partial eviction, the trial court came to the conclusion that the need of the plaintiff would be reasonably and substantially satisfied by eviction of the defendant from the area admeasuring 14 feet long and 6 feet wide from the Western side in the suit shop, leaving the remaining portion of it in occupation of the defendant as tenant. The suit was, accordingly, decreed in part.
4. The plaintiff filed the appeal against the judgment and decree of the trial Court assailing the grant of only the decree for partial eviction of the defendant from the suit premises. The defendant-tenant also filed the cross objection pertaining to the vagueness in the description of the dimension of area of partial eviction the suit premises in the judgment and decree of the trial Court. The appellate court below on reappraisal of evidence has concurred with the finding of the trial court on the issue of partial eviction with clarification granting decree of eviction to the plaintiff for the area admeasuring 8 feet East to West having frontage in South and 10 feet North to South towards eastern portion in the suit premises adjacent to the shop used as godown for Hira Paints. The appeal has been accordingly dismissed by the impugned judgment Patna High Court SA No.257 of 2006 dt.16-09-2016 3 and decree.
5. This Second Appeal has been admitted for hearing on the following substantial questions of law:-
(i) Whether the defendant has discharged his onus with respect to pleading and proving the question of partial eviction as provided in various decisions of this Court as well as the Hon'ble Apex Court?
(ii) Whether the learned courts below failed to consider the question of partial eviction in the light of specific settled principles of law?
6. Criticizing the impugned judgments, Mr. Singh, learned counsel appearing for the appellant has emphatically submitted that the defendant-tenant has failed to discharge the onus to establish by cogent evidence that his partial eviction from the suit premises would satisfy the need of the plaintiff but both the courts below have failed to consider the said aspect and have wrongly proceeded to grant the decree for eviction, only for the part of the suit premises. It has been contended that there has been absolutely no evidence on behalf of the defendant regarding the area of the suit premises as well as the area required in view of the nature of business proposed to be started by the plaintiff whereas the plaintiff has specifically pleaded and proved by evidence that he requires the entire suit premises and the part eviction of the defendant will not satisfy his need. It has been posited on the basis of the Bench decision of this Court in the case of M/s Bata India Ltd. vs Dr. Patna High Court SA No.257 of 2006 dt.16-09-2016 4 Md. Qamruzzama 1993 (1) PLJR 87 that it is for the tenant to express his readiness and willingness for the part occupation of the premises and to show that the plaintiff's need can be substantially satisfied by evicting him from part of the premises and allow him to continue in occupation of the rest of it. It has been further contended that the present case is a case of no evidence on the point of partial eviction and the finding in this regard by the courts below is only on the basis of conjectures and surmises. Learned counsel has placed reliance on the decision in the case of Shri Vinod Kumar Gupta & Anr vs Smt. Pushpa Devi & Anr 2005(3) PLJR 719 and the case of Karamchand Thappar & Brother (CS) Limited vs Laxmi Narayan Mishra & Ors 2006(3) PLJR 236 in support of his contention.
7. Mr. Verma, learned counsel appearing for the respondent, however, while controverting the submissions on behalf of the appellant has been categorical in his contention that there has been cogent evidence led by the tenant-defendant on the point of partial eviction and it is not the case of no evidence, as has been tried to be made out on behalf of the appellant. It has been canvassed that the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the BBC Act) is a benevolent piece of legislation which mandates the court to consider Patna High Court SA No.257 of 2006 dt.16-09-2016 5 the fact as to whether the partial eviction of the tenant would reasonably and substantially satisfy the need of the plaintiff before granting the prayer for decree on the ground of personal necessity. Elaborating the submissions, learned counsel has placed the findings of both the courts below in order to demonstrate that the learned courts below have scrutinized the evidence and materials on record and thereafter have recorded the finding on the issue of partial eviction. It has also been propounded that the finding by both the courts below on the issue of partial eviction is clearly a possible view of the matter and therefore, it requires no interference in the second appellate jurisdiction.
8. After considering the rival submissions and the facts and circumstances of the case, it is absolutely limpid that the gravamen of the controversy demonstrably pertains to the issue of partial eviction alone. The finding that the plaintiff has the bonafide reasonable requirement of the suit premises stands concluded between the parties. In view of the proviso to Section 11(1)(c) of the BBC Act, the legislative mandate is explicit that a judicial exploration is required culminating in a finding regarding the court's satisfaction on the point as to whether the entire premises must be vacated to fulfill the reasonable requirement of the landlord or the part eviction of the tenant will satisfy such requirement. While Patna High Court SA No.257 of 2006 dt.16-09-2016 6 considering a similar provision in the Jammu & Kashmir House and Shops Rent Control Act, a three judge Bench in the case of REHMAN JEO WANGNOO V. RAM CHAND & ORS AIR 1978 SC 413 has ruled that the absence of specific pleading under the said proviso does not stand in the way of the obligation of the court to act in compliance of the mandate of the statute.
9. The Apex Court has reiterated the principle in the case of Nasirul Haque vs Jitendra Nath Dey (1984) 4 S.C.C 498 and has laid down the guidelines for determining the issue of partial eviction as follows:-
"------------------------------------------- the Court has, therefore, in the first instance, to determine the extent of the premise which the landlord "reasonably" requires. Determine it objectively and not on the basis of his ipse dixit or his mere desire to occupy as much as he wants. But the Court has to, furthermore, apply a test as to whether such requirement, as the court considers reasonable, will be 'substantially' satisfied (not fully satisfied) by ordering partial eviction--------
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10. The dictum by the Apex Court as above clearly elicits the line of distinction between the 'full satisfaction' and 'substantial satisfaction' and prescribes that the requirement of the landlord for the suit premises as pleaded is to be adjudged from the stand point of its 'substantial satisfaction' only. Patna High Court SA No.257 of 2006 dt.16-09-2016 7
11. As the fact of the present case unveils, the suit premises is a shop having length of 13 feet from East to West and width of 10 feet from North to South with opening on the main road towards South. The need of the plaintiff as pleaded is for establishing a Sanitary Ware Shop in the suit premises. The tenant- defendant is admittedly carrying on stationery business in the suit premises. The Courts below have taken into notice the statement made by the defendant in his deposition as DW-1 that he has been keeping the half portion of the suit premises vacant in order to hand over the same to the plaintiff. The courts below have further taken into notice the admitted fact that the suit premises is one of the four shops on the ground floor of the building owned and possessed by the plaintiff-landlord and the two shops adjacent east to the suit shop are in occupation of the plaintiff's family which according to the plaintiff is still joint. Considering the magnitude of the requirement of the plaintiff on the basis of the evidence on record, the courts below have come to the conclusion that the decree for eviction with regard to 60 per cent of the suit premises would be sufficient to satisfy the need of the plaintiff for establishing the Sanitary Ware Shop.
12. Here, it cannot be lost sight of that the BBC Act is a Patna High Court SA No.257 of 2006 dt.16-09-2016 8 benevolent piece of legislation and the proviso to Section 11(1)(c) of the BBC Act has been manifestly included for mitigating the hardship of a tenant. From the findings of both the courts below, it is transparent that the courts have made comparative appraisal of the needs of the landlord-plaintiff and tenant-defendant and thereafter, have concluded that the landlord need can be substantially satisfied by evicting the tenant from part of the suit premises. The decision in the case of M/s Bata India Ltd. (supra) has been rendered in different setting of facts where there was no pleading or evidence on behalf of the defendant on the issue of partial eviction whereas in the present case the defendant in his deposition has clearly stated that he has been keeping half of the suit premises vacant for the occupation by the plaintiff. Similar is the position in the decision of this Court in the case of Vinod Kumar Gupta (supra), wherein, also the defendant-tenant has failed to raise the plea of partial eviction either in the written statement or in evidence. Reliance placed on behalf of the appellant on the decision in the case of Karamchand Thappar and Other (supra) is also misplaced, as in the said case the defendant themselves were not carrying any business in the suit premises and there was neither any pleading nor any evidence with regard to partial eviction.
13. As observed by their Lordships in the case of Patna High Court SA No.257 of 2006 dt.16-09-2016 9 Kulwant Kaur vs Gurdial Singh Mann (Dead) By LRs (2001) 4 S.C.C 262, Section 100 of C.P.C has stipulated a definite restriction on the exercise of jurisdiction in second appeal so far as the High Court is concerned. It is also well settled that the concurrent findings of fact by the courts below are binding upon the second appellate court unless the findings are shown or established to be perverse. Elaborating the concept of perversity in the context of a finding of fact, the Apex Court in the case of Damodar Lal vs Sohan Devi & Ors (2016) 2 S.C.C 262 has ruled as follows:-
"Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity."
(emphasis supplied )
14. It would also be fruitful to notice, in the context of the scope of the second appellate jurisdiction, the observation by their Lordships in the case of S.R. Tewari vs Union of India & Anr (2013) 6 S.C.C 602 that 'if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with." It is also well settled by now that a second appeal is Patna High Court SA No.257 of 2006 dt.16-09-2016 10 not a 'third trial' on facts and the possibility of another view on the same set of evidence would not be sufficient for interference in the finding of fact as recorded by the courts below. This Court finds in the present case that both the courts below have elaborately scrutinized the evidence and materials on record on the issue of partial eviction before granting only a part decree for eviction to the plaintiff for the suit premises. After going through the judgments of both the courts below, this Court is not persuaded to align with the submission made on behalf of the appellant that it is a case of no evidence on the point of partial eviction. The findings by both the courts below are in accordance with law and there is no unreasonableness or perversity in any manner in the same.
15. On the above premises, the substantial question of law, as framed, are answered against the appellant. The second appeal is, accordingly, dismissed affirming the impugned judgment and decree passed by the appellate court below.
16. In the facts and circumstances of the case, there would be, however, no order as to cost.
(V. Nath, J) Ranjan/-
AFR/NAFR NAFR CAV DATE N.A. Uploading Date 17.09.16 Transmission N.A. Date