Patna High Court
Rama Shankar Prasad & Ors vs Chinta Muni Devi & Ors on 4 August, 2010
Author: S.K.Katriar
Bench: Sudhir Kumar Katriar
CIVIL REVISION No.1423 OF 2004
Against judgment and order dated 25.8.2004, passed by Shri Rajesh
Narain Sevak Pandey, Munsif Ist Court,Chapra, in Eviction Suit No.
14 of 2002.
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1. RAMA SHANKAR PRASAD, son of Late Raghunath Prasad
2. Bimla Devi W/o Sri Rama Shankar Prasad
3. Manoj Kumar
4. Santosh Kumar
- Both sons of Sri Rama Shankar Prasad
All residents of Mohalla Sahebganj, Sonarpatti, PO Chapra
PS Chapra Town, District Saran ....... Defendants/Petitioners
Versus
1. CHINTA MUNI DEVI W/o late Bharat Prasaad
2. Jainendra Kumar @ Pappu
3. Shailendra Kumar
4. Nagendra Kumar
5. Bijendra Kumar
No. 2 to 5 sons of Late Bharat Prasaad
And Chinta Muni Devi
All residents of Mohalla Gurhatti, PO Chapra, PS Chapra Town
District Saran .........Plaintiffs- Opp. Parties
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For the Petitioners : Mr. Mahesh Narayan Parbat, Advocate
For the Opp.Parties : Mr. Dinu Kumar, Advocate
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PRESENT
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
S K Katriar, J.The defendants have preferred this civil revision application under the provisions of section 14(8) of the Bihar Building (Lease, Rent, and Eviction) Control Act 1982 (hereinafter referred to as `the Act'), and is directed against the judgment dated 25.8.2004, passed by the learned Munsif 1st, Chapra, in Eviction Suit no. 14 of 2002(Chinta Muni Devi & Ors. V Rama Shankar Prasad & Ors.), whereby the suit for eviction on the ground of personal necessity has been decreed.
2. According to the plaint, the suit premises is one room covering an area of 10 ft. x 8 ft., and was let out about ten to twelve years prior to institution of the suit to the defendants on a monthly rent. Possession of the suit property reverted to the plaintiffs in the 2 beginning of April 1999. On 22.4.1999, the parties entered into a deed of conditional sale for transfer of right, title and interest of the property in favour of the defendants for a total consideration of Rs. 1.39 lacs. The plaintiffs continued to be in possession of the suit premises. The agreement for conditional sale did not materialise and the plaintiffs returned the entire consideration money to the defendants on 18.2.2002. It is further stated in the plaint that, after the agreement for conditional sale fell through, the defendants requested the plaintiffs to allow them to occupy the premises as a tenant for two months, namely, March and April 2002, on monthly rent of Rs.500/- so that they could make alternative arrangement. Possession of the suit premises was made over to the defendants for two months but the defendants did not hand over possession of the same after expiry of the stipulated period leading to the eviction suit on the ground of personal necessity. The plaint further states that two of the plaintiffs are, though employed, not adequately, and want to set up business on an improved scale in the suit premises. They also asserted that partial eviction will not serve their purpose.
3. The defendants filed their written statement and contested the suit. Relationship of landlord and tenant was not denied. With some variation of the period during which the tenancy subsisted, and also some variation of the area of the tenanted premises, they took a firm stand in their written statement that the plaintiffs did not need the suit premises bonafide for their personal need and, in any view of the matter, partial eviction will serve the needs of the plaintiffs.
4. On these claims in the rival pleadings, the learned trial court framed the following issues:-
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" 1- D;k oknhx.k us ftl izdkj ls okn lafLFkr fd;k gS] og iks'kuh; gS\ 2- D;k oknhx.k dks okn nk;j djus dk dksbZ okj dkj.k iSnk gqvk\ 3- D;k oknh dk okn e;kZnk fof/k ls ckf/kr gS\ 4- D;k oknh dks fooknxzLr nqdku dh uhft vko";drk gS ,oa bl vk/kkj ij izfroknhx.k osj[kdh ds ik= gS\ 5- D;k vkaf"kd csn[kyh ls oknhx.k dh vko";drkvksa dh iwfrZ gks ldrh gS\ 6- D;k izfroknhx.k Qjojh 2002 ds ckn ls fuf"pr vof/k ds fdjk;snkj gSa rFkk mDr vof/k chr tkus ds ckn edku [kkyh ugha djus ds dkj.k csn[kyh ds ik= gS\ 7- D;k oknhx.k vU; fdlh vuqrks'k ;k vuqrks'kha dks izkIr djus ds gdnkj gS\a Both the sides led evidence in support of their respective cases.
5. On consideration of the materials on record, the learned trial court held that the plaintiffs need the suit premises bonafide for their personal needs. He also found that partial eviction of the suit premises will not serve the needs of the plaintiffs. The suit was decreed and eviction was ordered for. Hence this civil revision application at the instance of the defendants.
6. While assailing the validity of the impugned judgment, learned counsel for the defendants submits that the findings recorded by the learned trial court about the bonafide requirement of the plaintiffs for personal needs is an erroneous finding and does not bear relation with the materials on record. The plaintiffs have made it a ploy to evict the defendants. He next submits that the learned trial court has not properly examined the question of partial eviction. He relies on the following reported judgments:-
(i) Rehman Jeo Wangnoo v Ram Chand & Ors.
(1978) 3 SCC 539 = AIR 1978 SC 413 (para 2)
(ii) Nasirul Haque v Jitendra Nath Dey
1985 BLJ 43 (SC)
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(iii) Mohan Lal v. Tirath Ram
AIR 82 Delhi 405
7. Learned counsel for the plaintiffs has supported the impugned judgment. He submits that the learned trial court has examined the entire evidence and recorded appropriate finding of facts. The relationship of landlord and tenant is admitted. Secondly, the plaintiffs need the suit premises bonafide for their personal requirement. Thirdly, the learned trial court has dealt with the question of partial eviction and has recorded that partial eviction shall not serve the needs of the plaintiffs. He relies on the averments made in the plaint, and the depositions of PW 5, PW 6, DW 4, and DW 5. On the point of partial eviction, learned counsel relies on the judgment of a Division Bench of this Court in the case of Veena Rani v. Mrs. Ishrati Amanullah (1985 PLJR 391).
8. We have perused the materials on record and considered the submissions of learned counsel for the parties. Before we proceed further, we would like to remind ourselves of the scope and reach of the provisions engrafted in section 14(8) of the Act. The same is reproduced hereinbelow:-
"14. Special procedure for disposal of cases for eviction on ground of bonafide requirement.-
........ ............ ...........
(8)No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section:
Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."5
It is thus evident that in case of eviction on the ground of personal necessity or expiry of the period of lease within the meaning of sub- clause © or sub-clause (e) of section 11 of the Act, then the special procedure prescribed by section 14 of the Act has to be followed, and is described in common parlance as summary procedure. In such cases, the parties have no forum of appeal and the only remedy available to him is the revision petition under section 14(8) of the Act. The courts have felt that the scope and ambit of a revision petition depends on the intent of the Legislature. In so far as section 14(8) of the Act is concerned, it has been held that it is in between an appeal, a forum of facts, and a civil revision petition under section 115 of the Code of Civil Procedure. In other words, the court exercising the power under section 14(8) has to ensure that the findings have been recorded "in accordance with law", and it is from this limited angle that the courts are required to examine the evidence whether or not the findings are in accordance with law. Reference may be made in this connection to the judgment of the Supreme Court in Shiv Sharup Gupa vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222.
9. We proceed to examine the contentions advanced on behalf of the parties in this civil revision application in the light of the law laid down by the Supreme Court as aforesaid. The admitted position is that the plaintiffs are the owners of the property, the defendants were inducted as tenants on monthly rent, and had paid the rent for some time. Differences arose, the defendants failed to vacate the premises leading to the suit on the ground of personal necessity. In other words, the learned trial court has found that the relationship of landlord and tenant between the parties is admitted. The plaintiffs have instituted 6 the suit on the sole ground of personal necessity. Their clear case is that plaintiff no.1(Chintamuni Devi) is the wife of late Bharat Prasad, who was a low-category government servant, and she is receiving family pension after the demise of her husband. The remaining plaintiffs are her sons. Her further case is that plaintiff no.2 (Jainendra Kumar @ Pappu) is a class IV employee in the Public Works Department, Govt. of Bihar. Her third son is plaintiff no.3 (Shailendra Kumar) who is working in a factory manufacturing copies, i.e. answer books. Plaintiff no.4 (Nagendra Kumar) is the next son owner of a small shop dealing with miscellaneous items, portion of which exists on a public drain. Plaintiff no.5(Bijendra Kumar) is a student at Allahabad. Both the sides led evidence in support of their respective cases. On a consideration of the entire materials on record, the learned trial court recorded the following findings in paragraph -10 of the impugned judgment on the question of bonafide requirement of the plaintiffs:-
" 10- bl izdkj mHk; i{kksa }kjk izLrqr lk{;ksa ds voyksdu ,oa foospu ls ;g Li'V gS fd oknh ukxsUnz dqekj NksVh lh nqdku ftldk dqN va"k ukys ij gS] ij djrk gS rFkk "kSysUnz dqekj viuh thfodk gsrq dkWih cukus ds dkj[kkus esa dke djrk gSA fookfnr nqdku Lohd`r :i ls oknhx.k dh gS rFkk os mDr nqdku esa viuh uhft vko";drk ds fy,] dkjksckj djuk pkgrs gSAa ,slh fLFkfr esa muds bl vko";drk dks lnHkkoukiw.kZ ekuk tk;sxkA fdlh O;fDr dks viuh lEifr ,oa vius dkjksckj dks foLrkj djus dk iw.kZ vf/kdkj gSA fof/kd fl)kUrksa ds vkyksd esa mls bl vf/kdkj ls oafpr ugha fd;k tk ldrk gSA vr% mijksDr rF;ksa ,oa okn dh ifjfLFkfr;ksa ds foospu ls ;g Li'V gS fd oknh i{k ;g lkfcr djus esa lQy jgk gS fd mls okn&i= ds vuqlwph 1 esa of.kZr nqdku dh lnHkkoukiw.kZ uhft vko";drk gSA vr% ;g okn fcUnq oknh ds i{k esa rFkk izfroknhx.k ds fo:) fuf.kZr fd;k tkrk gSA"7
10. The learned trial court has thus found as an issue of fact that plaintiff no.2 is not himself manufacturing copies, as is the case of the defendants, but is in fact working in a factory manufacturing copies. The trial court has further found that PW 4 (Nagendra Kumar) is owner of a small shop portion of which exists on a public nala. It is obviously a small premises and is in a precarious condition being in existence partially on a public drain. We, therefore, entirely agree with the finding of the learned trial court that the plaintiffs, particularly plaintiff nos. 3 and 4, are in difficult circumstances and want to expand their business. In our view this is undoubtedly a bonafide requirement for personal necessity. Law is well settled by a long line of cases that personal necessity of the plaintiff shall be determined on the facts and circumstances obtaining with respect to the condition of the plantiff, rather than the needs or the dictates of the defendants. Learned counsel for the plaintiffs has rightly relied on the observations of a Division Bench of this Court in paragraph 11 of the judgment in the case of Mrs. Veena Rani (supra), which is reproduced hereinbelow:-
"11. While judging the question of personal necessity no fixed criteria can be applied. Section 12(1)© itself says:-
"Where the building is reasonably and in good faith required by the landlord for his own occupation or for occupation of any person for whose benefit the building is held by the landlord."
This cannot be interpreted to mean that the landlord must be in dire need of the house before a decree for eviction can be passed on the ground of personal necessity. In the case of Mst. Bega Begum and others v. Abdul Ahad Khan (AIR 1979 SC 272) it was observed that the words "reasonable requirements" postulate that 8 there must be an element of need as opposed to a mere desire or wish, but it was pointed out :-
"..... that the connotation of the term `need' or `requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds."
The same view was expressed in the case of Phiroze Bamanji Desai v Chandrakant N Patel (AIR 1974 SC 1059). On the basis of the materials on record it has been rightly held by the trial court that plaintiffs reasonably require the house in question for their personal use."
11. It is evident on the facts and circumstances of the case that the case of the plaintiffs are really based on their needs as opposed to a mere desire or wish or the intent to occupy the same, or to evict the defendants. It is evident that each and every member of the plaintiffs in this case is living in a situation of need. Plaintiff no.1 is widow of a class IV employee and is in receipt of a meager family pension. Plaintiff no.5 is entirely dependent on her for his education. Plaintiff no.2 is a class IV employee in a government department. Plaintiff no.3 is working in a factory where copies are manufactured by the owner, and plaintiff no.4 is running a tiny business part of which exists on a public drain. It is further relevant to state that the witnesses of the plaintiffs have deposed to the effect that the defendants are in occupation of the suit premises for a period of 23 years. In the totality of the circumstances, we entirely agree with the finding of facts recorded and the conclusion arrived at by the learned trial court that the plaintiffs need the suit premises bonafide for their personal requirements.
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12. This takes us on to another important question in an eviction suit of the present nature, namely, whether or not partial eviction of the suit premises will serve the requirement of the plaintiffs. Such a consideration necessarily predicates two things. The nature and the extent of the requirement of the plaintiffs, and the area of the suit premises. The plaint states that it is a room covering 10ft.x8ft. i.e. 80 sq.ft. There is some variation in the description of the area in the depositions of the plaintiffs' witnesses and the defendants' witnesses. The defendants' witnesses have stated that it covers an area of 10 to 12 feet x 8 to 10 feet. This variation in our view does not make any difference in the situation. Such a small area covering 80 to 100 sq.feet is too small an area to accommodate two businessmen, who are on such inimical terms. This question has been considered by the learned trial court and has recorded as follows in paragraph -11 of the impugned judgment:-
" 11. okn fcUnq la0&5%& oknh us okn&i= ds dafMdk 5 esa dgk gS fd vuqlwph&1 dh nqdku ls izfroknhx.k ds vkaf"kd csn[kyh ls oknh dk dke ugha pysxkA D;ksafd eqnbZ ua0&2 ih-MCyw-Mh- esa prqFkZ oxhZ; Js.kh esa ukSdjh djrk gS] ftls ifjokj dk Hkj.k&iks'k.k ugha pyrk gS] ftlds otg ls oknhx.k dks vuqlwph&1 dh dksBjh esa nqdku djuk gS] tks nqdku ds fy, mi;ksxh gSA izfroknh i{k }kjk mRrj i= ds dafMdk 7 esa oknh ds bl dFku dk [k.Mu fd;k x;k gSA bl okn esa ;g Lohd`r rF; gS fd oknhx.k ds HkkbZ fotsUnz dqekj dksbZ dkjksckj ugha djrk gS rFkk fdlh ukSdjh esa ugha gS] cfYd os i<+kbZ esa gSA ekWa dks isUlu feyrk gS rFkk ,d HkkbZ ih-MCyw- Mh- esa duh; Lrj ds deZpkjh gSA izfroknh i{k }kjk oknh ds vk; dk dksbZ fofufn'V ,oa Bksl O;ksjk ugha fn;k x;k gS] lkFk gh ;g Lohd`r ,oa lkfcr gS fd "kSysUnz dkj[kkus esa dke djrk gS rFkk ukxsUnz dqekj dh NksVh lh nqdku gS ftldk dqN va"k ukys ij gksuk dgk x;k gSA izfroknh }kjk] lkf{k;ksa ls oknh ds bl dFku dks fd vkaf"kd csn[kyh ls mudk dke ugha pysxk] [k.Mu ugha fd;k x;k gSA vr,o oknh i{k ds ifjokjtuksa dh vko";drkvksa ,oa 10 nqdku ds eki dks ns[krs gq, ;g Li'V gS fd izfroknhx.k ds vkaf"kd fu'dk"ku ls oknh ds vko";drkvksa dh iwfrZ ugha gksxhA vr% ;g okn fcUnq Hkh oknh ds i{k esa fuLrkfjr fd;k tkrk gSA"
13. Learned counsel for the plaintiffs has rightly relied on the judgment of a Division Bench of this Court in the case of Mrs. Veena Rani (supra). On consideration of a large number of judgments of the Supreme Court, the Division Bench has held as follows in paragraph 12 of the judgment:-
"12. Lastly, it was submitted on behalf of the appellants that the court below should have considered whether the need of the plaintiffs is satisfied only by the partial eviction of the defendants from the house in question, in view of the proviso to clause © of section 12(1). Reliance was placed on the judgment of the Supreme Court in the case of Rahman Jeo Wangnoo v. Ram Chand and others (AIR 1978 SC 413). This point was never urged before the trial court by the defendants, and, as such, no evidence has been adduced on behalf of the parties. It cannot be disputed that this issue can be decided only if parties are given opportunity to adduce evidence. However, PW 15 has stated that the house has 4 living rooms besides drawing room and dinning room on the ground floor and 2 rooms on the first floor. Witnesses, who have been examined on behalf of the plaintiffs, including PW 21, have stated that the plaintiffs have a large family consisting of 5 daughters and 3 sons. In that situation, it cannot be held that the plaintiffs do not require the whole house for their personal use. It was held in the case of (Messers) Tip Top & Ors. V Smt. Indramani Devi (1982 Bihar Bar Council Journal
433):-
"Once a landlord establishes his personal necessity then the law gives him the choice of selection of the most suitable accommodation for that purpose which may suit him according to the facts of each case."
It need not be pointed out that before a decree for eviction for part of the premises in question can be passed, the court on the materials must be satisfied that the landlord and tenant both can conveniently occupy the same house as two units, that power cannot be exercised in a manner as if the court has to partition the building in question between two co-sharers. As such, in my opinion, there is no scope for decreeing the suit for eviction for the part of the premises."
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14. Under such circumstances, we are convinced that the learned trial court examined the issue relating to partial eviction seriously and in accordance with law. He has come to a definite finding that, in view of the needs of the plaintiffs and the smallness of the suit premises, partial eviction shall not serve the purpose of the plaintiffs. The findings are clearly borne out from the materials on record and we entirely agree with the same.
15. In the result, this civil revision application is rejected. It goes without saying that the order dated 28.2.2005, staying further proceeding of Eviction Case No.5 of 2004, then pending in the court of Munsif I, Chapra, now automatically stands vacated.
( S K Katriar ) Patna High Court, Patna The 4th of July 2010 AFR/mrl