Jharkhand High Court
Ram Niwas Agarwal vs Reshmi Devi & Ors on 27 November, 2009
Equivalent citations: 2010 (1) AIR JHAR R 710, 2010 A I H C 2581, AIR 2010 (NOC) (SUPP) 802 (JHAR.), (2010) 1 RENCR 537(2), AIR 2010 (NOC) (SUPP) 802 (JHA)
Author: R. K. Merathia
Bench: R. K. Merathia
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No. 33 of 2008
Ram Niwas Agarwal ... Petitioner
Versus
Reshmi Devi and others ... Opposite Parties
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For the Petitioner : M/s. Manjul Prasad &
Ananda Sen, Advocates
For the Opposite Parties : M/s. V. Shivnath & P.A.S. Pati
Advocates
CORAM : HON'BLE MR. JUSTICE R. K. MERATHIA
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C.A.V. on 3.11.2009 Pronounced on 27.11.2009
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13. 27.11.2009: This civil revision application has been filed under Section 14(8) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 (the Act for short) against the judgment and decree dated 8.9.2008 passed in Eviction Suit No. 151 of 1993 by learned Sub Judge- V, Jamshedpur.
2. I.A. No. 1226 of 2009 has been for condoning the delay of 3 days in filing this revision application.
On being satisfied with the ground, the delay was condoned and the matter was heard at length for final disposal.
3. The plaintiffs-opposite parties (hereinafter to be referred as the landlord) filed this suit for eviction on the ground of personal necessity of the entire suit premises. The landlord pleaded that plaintiffs No. 2 and 3 were unemployed and sons of plaintiff No. 1 were also unemployed due to lack of accommodation.
4. The main defence of the defendant-petitioner (hereinafter to be referred as the tenant) was that the alleged requirement was not reasonable and bona fide as the landlords were heavily engaged in their respective businesses; that the suit was filed claiming need of all plaintiffs, but the evidence led on behalf of the landlord is confined to the personal necessity of plaintiff No. 3 only; that plaintiff No. 3 and his wife are income tax assessees, but returns were not produced before the court to show that their income was very low; that in the "Form of Heading of 2 Deposition", it is mentioned "where I am - Business (Temp Transport)"; and that the question of partial eviction has not been property considered by the trial court as the suit premises are in two schedule i.e. Schedule A and Schedule B.
5. The parties led oral and documentary evidence. The trial court framed IX issues. There is no dispute with regard to Issue No. V, regarding the relationship of landlord and tenant between the parties. Regarding Issue No. VI- whether the landlord requires the suit premises reasonably and in good faith, the trial court held that the landlord proved the bona fide and reasonable requirement of the suit premises. Regarding Issue No. VII- whether partial eviction will satisfy the need of landlord, the trial court held that the decree of partial eviction will not fulfill the need of the landlord as the entire suit premises is required for their own use. Accordingly, the suit was decreed against which this civil revision application has been filed.
6. The landlord pleaded in Paragraph-10 of the plaint that plaintiffs No. 2 and 3 and the sons of plaintiff No. 1 were unemployed due to lack of accommodation, but in Paragraph-12 it was specifically pleaded that plaintiff No. 3 could not start any business due to lack of accommodation; and the suit premises is suitable for starting business. The evidence adduced on behalf of the landlord support their case. The landlord also proved that suit premises was suitable for the requirement. D.W. 2 (the tenant) has admitted that he was present when Pleader Commissioner inspected the suit premises. He further said that he does not have any proof to show that the landlords have let out other portion of the premises to the tenants. He admitted that he has several premises in his possession. He further admitted that he cannot prove that plaintiff No. 2 and 3 are engaged in iron scrap business.
7. It is settled position that for proving the personal necessity, the landlord is not required to sit idle during the period of litigation (See (2005) 8 SCC 252 and 2009 (3) JCR 465 (Jhr.) In the 3 case reported in AIR 2003 SC 532 Akhileshwar Kr. & Ors. v. Mustaqim & Ors., it is, inter alia, observed that even if the person, who requires the premises, is engaged in some business, it does not mean that he should not start his own independent business. Moreover, the tenant could not prove that plaintiff No. 3 is settled in any business activity. Further, the case of the landlords of personal necessity cannot be rejected on the ground that plaintiff No. 3 and his wife are income tax assessees. In the absence of order of court, directing Plaintiff No. 3 to produce his income tax return, the tenant cannot complain that he did not produce the Income Tax Returns.
8. Now the question of partial eviction. It was said in Paragraph-12 of the plaint that the entire shop and godown were required, but it was not denied and nothing was said in the written statement on this aspect. The landlord proved that the entire premises was required. The trial court appointed Pleader Commissioner to examine this aspect. The court considered the Pleader Commissioner's report (Ext. 4). It appears that the frontage of the shop (Schedule A) is about 11.5 ft. and the depth is about 28.5 ft. through which only the godown (Schedule B) can be accessed which is 12ft. X 18 ft. The Pleader Commissioner has clearly stated that except the shop, there is no other way to enter inside the building.
9. Furthermore, it has been held in Paragraph-12 of the Division Bench Judgment reported in 1985 PLJR 390 Mrs. Veena Rani v. Mrs. Ishrati Amanullah that the power of partial eviction cannot be exercised in a manner as if the court is to partition the building in question between two co-sharers. It may also be noted that nothing has been said by the tenant in the written statement on the aspect of partial eviction nor any evidence has been led by him on this aspect. In this connection Paragraph-11 of 2001 (1) PLJR 580-Tarun Kumar Gupta v. Parwati Devi may be seen. Further, it was held in the case reported in 1993(1) PLJR Page 87 - M/s. Bata India Ltd. v. Dr. Md. Qamruzzama that the landlord 4 cannot be saddled with the onus of proof regarding partial eviction. In Para-6 it has been held as follows:-
"Para-6. ................... In our opinion, the landlord cannot be saddled with the onus of proved in this regard. He having proved that he requires 'the building' which means the whole suit premises, he cannot be expected or asked to prove by evidence that his need can be satisfied by part eviction. That will amount to asking him to prove the negative. In our opinion, once the landlord has proved the need of the premises, onus shifts on the tenant. The expression "
and the tenant agrees to such occupation" strengthens the view that while holding enquiry on the question of partial eviction it is the tenant who has to express his readiness and willingness for part occupation of the premises and to show that the plaintiff's need can be substantially satisfied by evicting him from only part of the premises and allowing him to continue in occupation of the rest of it. No part of the defendant's evidence on the point of partial eviction was brought to our notice we thus fail to understand as to how the petitioner can assail the finding on the question of partial eviction on the ground that there is no specific evidence on the point."
The Judgment of Bata India Limited (supra) was followed in the case of Food Corporation of India v. Vishun Properties and Enterprises & Ors. reported in 1995 BBCJ 711 and the S.L.P. against the said decision was dismissed by the Supreme Court.
10. After hearing the parties and going through the records, I am satisfied that the trial court has considered the respective cases and evidence brought on record by the parties in right perspective with regard to the issues of necessity and partial eviction.
In the result, I do not find any merit in this civil revision application, which is, accordingly, dismissed. The impugned judgment and decree is affirmed. The tenant is directed to handover the vacant possession of the suit premises to the landlord within sixty days failing which they will be at liberty to get it vacated through the process of the Court at the cost of petitioner.
MK/AFR (R. K. Merathia, J)