Patna High Court
Shree Bharat Bhushan vs Amar Kumar Salarpuria on 20 April, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.29 of 2010
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1. Shree Bharat Bhushan, Proprietor Of S.B. Electric (Sales & Service), S/O Shri
Mod Narayan Das, Situated Near Khalifabag Coug, Rajendra Prasad Road, P.S-
Kotwali, Distt- Bhagalpur
.... .... Petitioner/s
Versus
1. Amar Kumar Salarpuria S/O Shri Bijay Kumar Salarpuria By Faith Hindu, R/O
Dr. R.P. Road Near Khalifabag Chouk, P.S- Kotwali, Distt- Bhagalpur
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. S.P. SRIVASTAVA
Mr. Shyam Kishore Das
Mr. Rajeev Ranjan
For the Respondent/s : Mr. Rajendra Naryana, Sr. Advocate.
Dr.. Manoj Kumar, Advocate.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 20-04-2012
V.Nath, J. Mr. Devendra Prasad Sharma, advocate, has appeared on behalf
of the petitioner and has submitted that he has no instruction from the
petitioner and has prayed for adjournment. However, Mr. Rajendra
Narayan, the learned senior counsel, has pointed out that this revision
application arises out of an eviction suit filed in the year 2003on
ground of personal necessity and the order of stay of execution case
has been obtained by the petitioner as far back as on 05.04.2010. It
has been further pointed out that on the joint prayer of the parties, this
matter has been fixed for hearing today on priority basis and in this
background, the prayer has been made to hear and dispose of this
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2/9
revision application on merits.
2. It appears that by order dated 05.04.2010 passed in this
revision application, further proceeding of execution case, initiated for
delivery of possession over the suit premises, was stayed on the basis
of the prayer made in I.A.No. 3031 of 2010 filed by the petitioner.
Subsequently, the order was passed to consider the said interlocutory
application at the time of admission. When this revision application
was being admitted for hearing, both the parties prayed for early
hearing and disposal of the revision application as it arose out of an
eviction proceeding on ground of personal necessity and the lower
court records had already been received and all the parties had
appeared. Keeping in view the nature of the proceeding and the
urgency inherent in it, the prayer was allowed and the revision
application was directed to be placed "for hearing" today i.e.
20.04.2012.
3. This revision application has been filed under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1992(hereinafter referred to as BBC Act) against the judgment and order of eviction dated 09.11.2009 passed by Munsif II, Bhagalpur in Eviction Case No. 26/03 by which the suit filed by the plaintiff- opposite party seeking eviction of the defendant-petitioner has been decreed.
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4. Filtering unnecessary details, the relevant facts are that the opposite party as plaintiff filed the eviction suit on the ground of personal necessity alone with the statement that the suit shop has been allotted to his share in family arrangement. It is the case of the plaintiff that he is educated but an unemployed person and has got no other suitable shop except the suit shop for starting his business of selling books. It is further case of the plaintiff that his request for vacating the suit premises through legal notice sent by him had been declined by the defendant compelling him to file this suit.
5. The defendant-petitioner appeared in the suit and contested the claim of the plaintiff-opposite party on the ground that he was not his landlord. It is the further case of the defendant-petitioner that the plaintiff-opposite party has already got a shop for selling books by the name and style "SANJAY BOOK STORES" in the same building and has further got two other shops which are vacant. The defendant- petitioner has also made statement that he has paid rent regularly and is not in default and has also accepted that he has started sending the rent through money order from November, 2003 and has uptil date remitted the same to the plaintiffs. The bona fide personal necessity of the plaintiff has been specifically denied in the written statement.
6. In view of the rival pleadings of the parties the trial court framed issues including the main issues with regard to the relationship 4 Patna High Court C.R. No.29 of 2010 dt.20-04-2012 4/9 of landlord and tenant in between the plaintiff and defendant and the personal necessity of the plaintiff as well as partial eviction.
7. After hearing the parties and appreciating the evidence on record, the trial court has come to the finding that there exists relationship of landlord and tenant in between the plaintiff and the defendant. It has been further found that the plaintiff has the bona fide personal necessity of the suit shop for establishing his own shop and his need cannot be substantially satisfied by partial eviction of the defendant. On the basis of these findings the suit has been decreed and the order of eviction has been passed.
8. Mr. Devendra Prasad Sharma, advocate has appeared in this revision application when the case has been called out for hearing and has submitted that although he had appeared at the time of admission of this revision application and the date of hearing has also been fixed with consent but now he has got no instruction from the petitioner. After his prayer for adjournment was declined, Mr. Sharma then cited the decision reported in 1989 PLJR 381 in support of the case of the petitioner. On the other hand, Mr. Rajendra Naryan, the learned senior counsel has appeared and made his submission in support of the case of the opposite party.
9. From the perusal of the written statement it is clear that the defendant has accepted to have paid the rent to the plaintiff and to 5 Patna High Court C.R. No.29 of 2010 dt.20-04-2012 5/9 have sent the rent by money order to the plaintiff from November, 2003 onwards and in this view of the matter the court below has rightly come to the finding that there exists the relationship of landlord and tenant in between the plaintiff and the defendant.
10. With regard to the personal necessity of the plaintiff, it is the case of the defendant as averred in the written statement that the plaintiff is carrying on his business of books and stationery in the shop in the same building by name and style "SANJAY BOOK STORES". It has also been stated that, in the said building, two other shops are also lying vacant. The witnesses examined on behalf of the plaintiff have stated in their depositions that the plaintiff has got no shop at present and has the requirement of the suit shop for starting his business for books and stationery and other related items. The witnesses have also supported the case of the plaintiff that the partial eviction of the defendant can not substantially satisfy the need of the plaintiff. The younger brother of the plaintiff has also been examined in the suit as P.W.7 on behalf of the plaintiff and he has deposed that the shop by name and style "SANJAY BOOK STORES" belongs to him and he carries on his business in that shop. He has also supported the case of the plaintiff by stating that the suit shop is the appropriate shop for the proposed business of the plaintiff. The defendant- petitioner in his deposition in the suit has admitted that the license of 6 Patna High Court C.R. No.29 of 2010 dt.20-04-2012 6/9 the shop "SANJAY BOOK STORES" is in the name of Mr. Sanjay Kumar who is the younger brother of the plaintiff.
11. It has been submitted by Mr. Rajendra Narayan, the learned senior counsel appearing on behalf of the opposite party, that the defendant has not produced any evidence to establish that any other shop belonging to the plaintiff was vacant on the date of filing of the suit. It has been contended that in the family arrangement, the plaintiff was allotted only two shops and both were in occupation of the tenants when this suit was filed. Referring to the Explanation II in Section 11 of the BBC Act, it has been urged that the legislature in his wisdom has clarified the position that the choice of the landlord is unfettered and it is not for the tenant to say that the landlord can carry on business in other premises, which may be available.
12. It does not appear from the impugned order also that the defendant has led any evidence to establish that the plaintiff has got other shops which were vacant on the date of filing of the suit. The plaintiff's witnesses have also stated about the suitability of the suit premises for the business of the plaintiff which fact has also been pleaded in the plaint. During the course of argument, the learned counsel has also pointed out the evidence to show that the suit shop faces the main road and is most suitable for the purpose of the proposed business by the plaintiff. The court below has elaborately 7 Patna High Court C.R. No.29 of 2010 dt.20-04-2012 7/9 considered the evidence of the parties and has thereafter come to the finding that the plaintiff has got bona fide and reasonable personal necessity of the suit shop for establishing his own business of books and stationery.
13. From the plaint it appears that the suit shop is 22 ft. long (North to South) and 11 ft. wide (East to West) and from the description of the boundaries it appears that the road is on the north side. The plaintiff has specifically pleaded in the plaint that the partial eviction of the defendant will not substantially satisfy the need of the plaintiff and has also led evidence in this regard. It has been pointed out on behalf of the opposite party that in paragraph no. 18 of his deposition, the defendant, examined as D.W. 1, has stated that he would not prefer his partial eviction from the suit premises and would not like to carry on his business in the half portion of the shop. The courts below has considered the said statement of the defendant- petitioner alognwith other evidence and has thereafter come to the finding that the need of the plaintiff cannot be substantially satisfied by partial eviction of the defendant.
14. In view of the finding on the issue of relationship of landlord and tenant between the plaintiff and the defendant, the decision reported in 1989 PLJR 381, relied upon on behalf of the petitioner has got no application.
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15. The primary object of introducing special procedure under Section 14 of the BBC Act is only to shorten the period of litigation in eviction suits where eviction has been sought either on ground of personal necessity or expiry of lease, as the general procedure prescribed in the Code of Civil Procedure has not been found adequate to provide prompt and quick relief to a landlord. Keeping in this view, the right to appeal or second appeal against the decree and order for eviction has been curtailed and a remedy by way of revision before the High Court has been provided. However, the scope of revision under proviso to Section 14(8) of the BBC Act, though wider than the scope of revision under Section 115 C.P.C. is not so wide as to permit reappreciation of evidence and reach to a different conclusion. According to the wordings of the provision, the revisional court is required to test the validity of the order of eviction only to find out whether it is in accordance with law. The Hon'ble Apex Court also in ( Chandrika Prasad & Ors.Vs. Umesh Kumar Verma & Ors.) 2002 (1)SCC 531 while considering the scope of Section 14(8) BBC Act has observed as follows:-
"...... the exercise of revisional jurisdiction by the High Court under this proviso is "for the purpose of satisfying if an order made by the Controller is according to law".
The Court further held that the revisional jurisdiction exercisable under the said proviso is not so limited as is 9 Patna High Court C.R. No.29 of 2010 dt.20-04-2012 9/9 under Section 115 CPC nor so wide as that of an appellate court and the High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts..."
16. In view of the aforesaid discussions and the principle, I find and hold that the court below has recorded the findings on the basis of evidence and the pleadings on record and these findings are in accordance with law.
17. For the foregoing reasons, there is no merit in this revision application, which is, accordingly, dismissed.
(V. Nath, J) Nitesh/N.A.F.R.