Patna High Court
Maqsood Hasan vs Sudama Prasad Jaiswal on 18 December, 2017
Equivalent citations: AIR 2018 (NOC) 234 (PAT.)
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No. 113 of 2014
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Maqsood Hasan S/o Abdul Hasan. R/o - Mohalla Karim Chak, P.O. - Chapra, P.S.
- Chapra Town, Distt. - Saran., At Present Shop No. 3, Harihar Market , Mohalla
Sahebganj, Near Dahiyanwa, Pargana Manjhi, P.O. - Chapra, P.S. - Chapra Town,
Distt. - Saran.
.... ....(Defendant).......Petitioner
Versus
Sudama Prasad Jaiswal Son of Late Harihar Prasad R/o Mohalla - Salempur, P.S. -
Chapra Town, Distt. - Saran.
.... .... (Plaintiff)...... Opposite Party
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Appearance :
For the Petitioner : Mr. Syed Firoz Raza, Adv.
For the Opposite Party : Mr.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
CAV JUDGMENT
Date: 18-12-2017 The defendant-petitioner has filed this revision petition under Section 14(8) of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as "B.B.C. Act") against the judgment and decree dated 21.05.2014 and 02.06.2014, respectively passed in Eviction Suit No. 14 of 2009 by the learned Munsif-I, Chapra, Saran by which and whereunder he decreed the above stated suit ordering the defendant-petitioner to vacate the disputed shop and hand over possession of the disputed shop to plaintiff-opposite party within sixty days failing which the plaintiff-opposite party shall be at liberty to get the possession of disputed shop through the process of the court.
Patna High Court C.R. No.113 of 2014 2/13
2. The plaintiff-opposite party filed aforesaid Eviction Suit No. 14 of 2009 against the defendant-petitioner seeking relief of eviction of defendant-petitioner from the shop as detailed in Schedule- 1 of the plaint on the ground as mentioned in Section 11(1)(c) of B.B.C. Act.
3. The plaintiff-opposite party averred in his plaint that the disputed shop situate on the ground floor of Harihar Market and apart from the aforesaid disputed shop, there are several other shops on the ground floor of aforesaid market. The defendant-petitioner was tenant of disputed shop no. 3 on the monthly rent of Rs. 533/-. The plaintiff-opposite party claimed himself to be owner of aforesaid shop and he needed the aforesaid shop for his sons who are unemployed and want to run a medical shop in the above stated disputed shop but even on several requests defendant-petitioner refused to vacate the aforesaid shop and also stopped giving rent to him. The plaintiff- opposite party sent a legal notice on 07.07.2009 to defendant- petitioner asking him to vacate the disputed shop but the defendant- petitioner neither vacated the shop nor gave any reply to the above stated legal notice and thereafter, plaintiff-opposite party filed the above stated Eviction Suit No. 14 of 2009.
4. The defendant-petitioner appeared and contested the eviction suit by filing his written statement in which apart from Patna High Court C.R. No.113 of 2014 3/13 raising ornamental objections, the defendant, specifically, pleaded that he is tenant in the disputed shop and he used to pay rent to the plaintiff-opposite party and in lieu of aforesaid rent, the plaintiff- opposite party used to issue receipt thereof. However, subsequently, the plaintiff-opposite party stopped providing rent receipt to him and thereafter, he started sending rent to plaintiff-opposite party through money order. The defendant-petitioner specifically stated that plaintiff-opposite party runs a medical shop at Arya Samaj Road having name and style as Darshan Medical Hall. The plaintiff as well as his sons used to look after the aforesaid medical hall and subsequently, the plaintiff-opposite party got opened another medical shop adjacent to disputed shop having name and style as Shri Durga Medicines and the aforesaid medical shop is being look after by the elder son of plaintiff whereas Darshan Medical Hall is being look after by his younger son, namely, Raja Jaiswal and the plaintiff used to assist both the above stated sons and, therefore, so-called personal need of the plaintiff-opposite party is not bona fide. The defendant- petitioner further pleaded in the written statement that earlier, the plaintiff as well as his brothers were joint and they used to do different business but subsequently, for the sake of convenience, they separated and started looking after their separate business and after that separation, Darshan Medical Hall is being look after by the Patna High Court C.R. No.113 of 2014 4/13 younger son of plaintiff. He further pleaded that plaintiff-opposite party brought the above stated suit for raising the rent and as a matter of fact, earlier the plaintiff as well as his brothers had pressurized several shop keepers of Harihar Market to increase the rent but the shop keepers filed cases before the rent controller and the rent controller fixed the genuine rent in the aforesaid cases and as a matter of fact, the plaintiff and his brothers, time to time, filed several suits against the shopkeepers with a view to pressurize them so that they could caught more rent. It has specifically been pleaded at para-23 of the written statement that shop no. 15 and 16 of Harihar Market are lying vacant since five to six years and are in possession of the plaintiff-opposite party and, therefore, sons of the plaintiff may start their business in the aforesaid shops. The defendant-petitioner further pleaded that the plaintiff, in collusion with his brothers, got prepared forged partition deed of his family and as a matter of fact, he is still a member of joint family.
5. The learned court below on the basis of pleadings of the parties framed the following issues:-
1- D;k oknh dk okn tSlk fojfpr gS iks'kuh; gS\ (1. Whether the suit as framed is maintainable?) 2- D;k oknh dks okn nkf[ky djus ds fy, okn dkj.k izkIr Fkk\ (2. Whether the plaintiff had any cause of action for the suit?) 3- D;k oknh vkSj izfroknh ds chp edku ekfyd vkSj fdjk;knkj dk laca/k gS\ (3.Whether there is any relationship of landlord and tenant in between the parties to the suit?) Patna High Court C.R. No.113 of 2014 5/13 4- D;k oknh dks cksukQkbZM O;fDrxr vko';drk rdjkjh nwdku dh gS\ (4. Whether the plaintiff has any bona fide personal necessity of the disputed shop?) 5- D;k oknh dh vko';drk dh iwfrZ izfroknh ds vkaf'kd fu'dklu ls gks ldrk gS\ (5. Whether the necessity of the plaintiff can be fulfilled by partial eviction of the defendant?) 6- D;k oknh tSlk nkok fd;k gS fMdzh izkIr djus dk vf/kdkjh gS\ (6. Whether the plaintiff is entitled to the decree as he claimed?) 7- D;k oknh ekaxs x;s vuqrks'k vFkok fdlh vU; vuqrks'k dks izkIr djus dk vf/kdkjh gS\ (7. Whether the plaintiff is entitled for the relief sought for or any other relief(s).?)
6. The plaintiff-opposite party got examined five witnesses and also got proved legal notice as Exhibit-1. On contrary, the defendant-petitioner got examined ten witnesses and also got exhibited several documents.
7. The learned court below having analyzed the evidences available on the record came to conclusion that plaintiff- opposite party is in bona fide need of shop in question and his need could not be fulfilled by partial eviction.
8. Learned counsel appearing for the defendant-
petitioner assailed the impugned judgment arguing that the learned court below failed to examine as to whether decree of partial eviction could have been passed or not because the learned court below has, nowhere, referred the evidences available on the record to consider Patna High Court C.R. No.113 of 2014 6/13 the factum of partial eviction. He further submitted that court below also failed to take note of this fact that the alternative accommodation was available to plaintiff-opposite party to cater his need but the learned court below could not consider the aforesaid aspect. Continuing his submission, learned counsel for the defendant- petitioner argued that Pleader Commissioner has, specifically, mentioned in his report that vacant shops were available in the same market and, therefore, it is obvious that alternative accommodation was available to the plaintiff-opposite party and the court below over- looked the important and relevant evidence and came to wrong conclusion.
9. Learned counsel appearing for the defendant-
petitioner further submitted that to get a decree on the ground of Section 11(1)(c) of B.B.C. Act, mere desire of landlord is not sufficient but the landlord is bound to prove this fact that his requirement is reasonable and bona fide. He further submitted that if the alternative accommodation is available, in that circumstance, the requirement cannot be treated as bona fide and reasonable requirement and landlord has no unfettered right to fulfil his requirement as per his choice rather he must prove that alternative accommodation is not suitable to meet the requirement. In support of his contention, he relied upon decision of Umesh Kumar Verma vs. Patna High Court C.R. No.113 of 2014 7/13 Chandrika Pd. Singh (Since deceased) and others reported in 1998 (1) PLJR, 732. He also relied upon a decision reported in 2006 (4) PLJR 54 (SC).
10. Learned counsel appearing for the defendant-
petitioner further submitted that on the point of partial eviction no discussion has been made by the court below in the impugned judgment and, therefore, the suit be remitted to the court below for giving specific finding on the point of partial eviction. In support of his contention, he referred the decision of Md. Jahangir vs. Smt. Kirti Devi reported in 2001 (4) PLJR 488 wherein it has been held by a co-ordinate Bench of this court that "Where the court below has not arrived at on the issue of partial eviction, the matter is required to be remanded to the court below on this issue."
11. On the other hand, learned counsel appearing for the plaintiff-opposite party refuted the above stated submissions arguing that the plaintiff-opposite party proved his case in the court below and the learned court below having dealt with the evidences available on the record rightly held that need of plaintiff-opposite party was bona fide and reasonable. He further submitted that learned court below has considered the issue of partial eviction while dealing with the issue no. 3, 4 and 5 and, therefore, it is incorrect to say that the learned court below had not considered the issue of partial eviction. He Patna High Court C.R. No.113 of 2014 8/13 further submitted that decision cited on behalf of the petitioner- defendant on the point of partial eviction is not applicable in the facts of the present case because the plaintiff-opposite party, specifically, pleaded in his plaint that the partial eviction of defendant-petitioner could not fulfil his need.
12. Learned counsel appearing for the plaintiff-opposite party further submitted that in course of evidence, it came to light that a partition took place between the plaintiff and his brothers and in the aforesaid partition, the disputed shop fell in the share of plaintiff and moreover, the relationship of plaintiff-opposite party with defendant- petitioner as landlord and tenant is not in dispute and there was only question before the court below as to whether the need of defendant- petitioner was bona fide or not and whether the need of plaintiff- opposite party could be fulfilled by partial eviction or not. He further submitted that so far as availability of alternative accommodation is concerned, the defendant-petitioner failed to prove this fact that any alternative accommodation was available to the plaintiff-opposite party and therefore, the decisions cited on behalf of the defendant- petitioner are not applicable in the present case. Learned counsel for the plaintiff-opposite party relied upon decision of Madhuri Devi vs. Sri Raghubansh Jha reported in 2012 (3) PLJR 664.
13. Learned counsel for the plaintiff-opposite party Patna High Court C.R. No.113 of 2014 9/13 further submitted that even if it assumed that plaintiff-opposite party along with his sons runs two medical shops even then it cannot be said that need of plaintiff-opposite party is not bona fide and reasonable because the plaintiff-opposite party has every right to provide accommodation to his unemployed sons and simultaneously to take help of his unemployed sons for running his own business. He further submitted that admittedly, in the present case, the plaintiff-opposite party is in need of disputed shop for his sons so that his sons could start a medical shop in the aforesaid suit premises. He further submitted that so far as question of partial eviction is concerned, the court has to objectively determine the extent of the requirement and in the present case having discussed the materials available on the record, the court below specifically held that need of plaintiff-opposite party would not satisfy by partial eviction of the defendant-petitioner from the suit premises. He relied upon decision of Giridhar Gopal Singh vs. Gorakh Sah reported in 2012 (3) PLJR 490.
14. Having heard the contentions of both the parties, I have gone through the record. I find that the defendant-petitioner has challenged the impugned judgment and decree on three counts. Firstly, on the ground that the need of plaintiff-opposite party is not bona fide or reasonable. Secondly, the court below failed to take note of availability of alternative accommodation and thirdly, the failure of Patna High Court C.R. No.113 of 2014 10/13 court below to give finding in respect of partial eviction.
15. The defendant-petitioner has not denied his relationship as landlord and tenant with plaintiff-opposite party in his written statement and while he got examined himself as D.W.6, he admitted at paragraphs no. 2 and 3 of his deposition that he is tenant of the disputed shop and used to pay rent of the aforesaid shop to the plaintiff-opposite party and subsequently, at para-4 of his deposition he admitted that when plaintiff-opposite party stopped taking rent, he started sending rent of the disputed shop to plaintiff-opposite party through money order. Therefore, the aforesaid fact clearly goes to prove the relationship of landlord and tenant between the parties.
16. The plaintiff-opposite party has, specifically, pleaded that he requires the shop in question for opening medical shop for his sons as they are unemployed. However, the learned court below having marshaled and analyzed the evidences available on the record came to conclusion that although there are two medical shops in the family of the plaintiff-opposite party but even then one son of the plaintiff-opposite party is unemployed and, therefore, the personal necessity of plaintiff-opposite party is bona fide and reasonable. The learned court below also found that the partial eviction of the suit premises cannot fulfil the need of plaintiff-opposite party. Although, learned counsel appearing for the defendant-petitioner has argued that Patna High Court C.R. No.113 of 2014 11/13 the court below has not discussed and given its finding regarding the partial eviction but I do not find any force in the contention of learned counsel for the defendant-petitioner because it is obvious from perusal of the record that learned court below framed specific issue regarding partial eviction and while dealing with the issue no. 3, 4 and 5, the learned court below considered the evidences available on the record in respect of partial eviction and after that the court below came to conclusion that partial eviction of the defendant-petitioner from the suit property would not fulfil the need of the plaintiff-opposite party.
17. Learned counsel of defendant-petitioner heavily relied upon Exhibit-C, the report of Pleader Commissioner and has argued that Pleader Commissioner visited the Harihar Market at the order of the court below as the defendant-petitioner had asked about physical feature of the Harihar Market and having visited and inspected the Harihar Market the Pleader Commissioner found two shops bearing shop no. 15 and 16 of the said market lying vacant but the learned court below completely over-looked the aforesaid fact. No doubt, from perusal of the Exhibit-C, it is obvious that Advocate Commissioner visited the Harihar Market on 24.09.2012 and at the time of his visit he noticed one shop bearing shop no. 16 lying vacant and similarly, he found that shutter of shop no. 15 was closed and one table etc. had been kept in front of the aforesaid shop no. 15. Patna High Court C.R. No.113 of 2014 12/13 Therefore, from the aforesaid report, at least, it is clear that the aforesaid shop no. 16 was lying vacant at the time of visit of Pleader Commissioner but it is specific case of the plaintiff-opposite party that in family partition, the shop in question fell in his share and the aforesaid fact is admitted by the petitioner-defendant as he has himself admitted that he used to send rent of aforesaid shop to plaintiff- opposite party. So far as shop no. 16 is concerned, the defendant- petitioner failed to bring anything on record to show that the shop no. 16 also fell in the share of plaintiff-opposite party and unless the defendant-petitioner succeeds to prove that shop no. 16 belongs to plaintiff-opposite party, order on the point of availability of alternative accommodation cannot be passed because for passing order on the aforesaid point, the availability of alternative accommodation is condition precedent and in this case except to this fact that one shop no. 16 of Harihar Market was lying vacant, there is nothing on the record to show that the aforesaid shop no. 16 of Harihar Market belongs to plaintiff-opposite party. Therefore, in my view, the plea of availability of alternative accommodation raised by the petitioner-defendant is not acceptable and cannot be considered in this case.
18. On the basis of aforesaid discussions, in my view, there is no ground for this court to interfere into the impugned Patna High Court C.R. No.113 of 2014 13/13 judgment and decree and accordingly, this revision petition stands dismissed and the impugned judgment and decree dated 21.05.2014 and 02.06.2014 respectively are, hereby, confirmed.
(Hemant Kumar Srivastava, J) SHAHZAD/-
AFR/NAFR A.F.R. CAV DATE 27.07.2017 Uploading Date 19.12.2017 Transmission N.A. Date