Bijendra Prasad @ Bijendra Prasad Gupta vs Surendra Kumar @ Garibnath Pra on 9 July, 2010

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Patna High Court - Orders

Bijendra Prasad @ Bijendra Prasad Gupta vs Surendra Kumar @ Garibnath Pra on 9 July, 2010

This application has been filed by the petitioner for condoning the delay in preferring this Civil Revision. Though notice was issued on the point of limitation to the sole opposite party, no counter affidavit has been filed on his behalf.

The petitioner has set up a ground that due to illness, as he was suffering from Hepatitis-A and was bed ridden upto April 2008, he could not file this Civil Revision in time.

No serious challenge was made on behalf of the sole opposite party even at the time of hearing of this application filed for condoning the delay.

In the above view of the matter, the aforesaid Interlocutory Application is allowed and the delay in filing this Civil Revision is hereby condoned.

Now, I proceed to consider this matter on its own merit and dispose of the same at this stage upon the request of the parties.

This Civil Revision is directed against the order/ judgment dated 30.11.2007 passed by the Additional Munsif- V, Muzaffarpur, in Eviction Suit No.9 of 2000, directing the eviction of the defendant-petitioner from the suit premises on the ground of personal necessity.

The plaintiff-opposite party brought the aforesaid Eviction Suit for ejectment/recovery of possession of the suit premises on the ground of bonafide personal necessity. According to the plaintiff a tenancy was created between him and the father of the defendant on 31.1.1993 by a written agreement and thereafter the defendant regularly paid the rent upto October, 1993 but thereafter, neither had he paid the rent nor could he take step for renewal of the lease. The further case 3 of the plaintiff is that as he wanted to open a shop in the premises and, as such, he was in bonafide need of the aforesaid suit premises. The defendant-petitioner contested the suit by filing written statement. The court concerned after consideration of cases of respective parties has held that there is relationship of landlord and tenant between the parties and the plaintiff bonafide requires the suit premises as he wants to do his own business therein.

The court concerned has held that the defendant failed to make out even a case that the plaintiff is having another similar premises which could serve his purpose. It has also held that the suit premises being only 11 ft. X 9 ft. in dimension, would not serve the purpose of the plaintiff if the tenant is evicted from the part of the premises and, hence, the suit has been decreed and the defendant has been directed to vacate the premises within 90 days.

I have heard learned counsel appearing on behalf of the petitioner as well as the sole opposite party and perused the records of this case.

Learned counsel appearing for the petitioner submitted that in fact, he was not the tenant rather his father was inducted as a tenant. Thus, it is submitted that the court below 4 has erroneously held that there existed a relationship of landlord and tenant between the parties. Second contention raised on behalf of the petitioner is that the plaintiff could not prove his bonafide necessity and similarly situated other shops were also present and available which could have served the purpose of the plaintiff. Thirdly, it is also contended that the finding of the court below with regard to the partial eviction was also erroneous. It has been urged that even a 4 ½ wide shop could have served he purpose of the plaintiff. However, it has also been submitted that in view of the order of the court concerned for effecting the delivery of possession after dispossessing the petitioner, the Nazir had already locked the suit premises but the same is yet to be handed over to plaintiff.

On the other hand, learned counsel appearing on behalf of the sole opposite party contended that there is no error in the finding recorded by the court below. It has been submitted that the defendant neither could categorically state in his written statement nor could he point out in his evidence led in course of the trial that any similarly situated and a shop of similar dimension belonging to the plaintiff is vacant which could have served the purpose of the plaintiff. Further contention is that the suit premises being merely 8 ft. wide and 5 11 ft. in length, no purpose would be served by partial eviction of the tenant. Even the defendant has not stated either in his written statement or in the evidence led on his behalf that partial eviction would serve the purpose.

Upon consideration of rival submissions made on behalf of the parties, this Court also does not find any force in the submissions raised on behalf of the petitioner.

It has been submitted on behalf of the petitioner that the agreement was between the sole opposite party and his father. However, his father died subsequently and, thereafter, the petitioner being his only son came into the possession of the shop. The term "tenancy" has been described in the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 under Section 2(h), which clearly stipulates that in the event of the death of the person, the person continuing in possession after the termination of the tenancy could be considered as a tenant and will include spouse, son or unmarried daughter, or where there are both, both of them. Learned counsel for the petitioner could not show any provision contrary to it in support of his submission and, thus, it cannot be held that there has been error committed by the court concerned in holding that there existed a landlord and tenant relationship between the petitioner and the 6 sole opposite party.

Coming to the next point with regard to the personal necessity, the petitioner even before this Court could not make out any case showing that any error has been committed by the court concerned while holding that the plaintiff needs the suit premises. Learned counsel even could not point out before this Court that either any of the witnesses have stated or even in the written statement there has been any specific statement pointing out that a similar premises belonging to the opposite party is vacant which could have served his purpose.

Of course, it had been admitted by the plaintiff that there were some other shops which had already been let out on lease but in view of the provisions as contained in proviso to Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, if there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference.

So far as the partial eviction is concerned, the matter had been dealt with by the trial court and it has come to the conclusion that by eviction in part no purpose would be served. Learned counsel could not controvert the contention raised on 7 behalf of the opposite party that even this defendant had also never raised and supported the issue of partial eviction either by making a statement in the written statement or by stating in his deposition as a witness . In view of the premises being only 8 ft. wide, I also do not find any error in the finding of the court concerned that 4 ft. wide shop, after partial eviction, would not serve any purpose. Hence, in my opinion, the petitioner could not make out any case requiring this Court to call for the records of the case and examine the same.

This Civil Revision is devoid of any merit and is, accordingly, dismissed.

(Dr. Ravi Ranjan, J) P.S.

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Patna High Court - Orders