Patna High Court
Sat Pal Singh Bhatiya vs Basanti Devi And Anr. on 15 April, 2008
Equivalent citations: AIR 2008 (NOC) 2056 (PAT.)
JUDGMENT S. Nayer Hussain, J.
1. This Civil Revision has been filed by the defendant-petitioner under the Proviso to Sub-section (8) of Section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as "the Act' for the sake of brevity) challenging the order of his eviction passed by learned Munsif-II, Rohtas vide judgment and decree dated 16.09.2005 in Eviction Suit No.10 of 2001.
2. The aforesaid suit was filed on behalf of plaintiff-opposite parties for eviction of the sole defendant-petitioner from one shop room situated in Dehri-on-Sone on the ground of personal necessity of the plaintiffs, out of whom plaintiff No. 1 was the wife of plaintiff No. 2. The claim of the plaintiffs was that the suit premises belonged to plaintiff No. 2, who is an old person and hence his wife, namely, plaintiff No. 1 had been receiving rent on his behalf. It was also claimed that the plaintiffs had a son, who was unemployed, whereas, plaintiff No. 1 had training in sewing and stitching and she wanted to open her Ladies Corner Shop with the help of her said son in the suit shop as the plaintiffs were running in serious financial trouble at Nasriganj.
3. The defendant-petitioner appeared and contested the suit challenging the ground of the plaintiffs' bona fide requirement as the relationship of landlord and tenant between the parties was admitted. However, the defendant claimed that he was in possession as tenant since 50 years when a big hall was rented to him but in the year 1996 on the request of the landlords he vacated the said hall to enable the landlords to construct nine shops therein, for which the landlords took Rs. 56,376.00 as a loan, which amount was subject to adjustment in rent of the two shops which were to be given to him on the rent of Rs. 400.00 and Rs. 300.00 per month. It is further claimed that the construction of nine rooms was completed in the year 2000, whereafter two shop rooms were given on rent to him. It was also claimed by the defendant that, thereafter, the plaintiffs started claiming exorbitant money from the defendant and when the defendant refused to pay such an enhanced rent, the plaintiffs filed the aforesaid eviction suit on frivolous ground of personal necessity as the son of the plaintiffs was a student and they were living in village Nasriganj, whereas, the suit premises was situated at Dehri-on-sone about 50 kms. away.
4. After pleadings were complete, the following issues were framed by the trial court:
(i) Whether the suit as framed is maintainable?
(ii) Whether the suit is barred by law of limitation?
(iii) Whether the plaintiffs require the suit premises for their personal necessity and whether they have right to get the defendant evicted from the entire suit premises?
(iv) Whether the plaintiffs are entitled to any other reliefs?
5. In support of their claim, the plaintiffs produced Ext. 1, namely sale-deed dated 19.09.2002 executed by Parmanand in favour of Smt. Meera Devi. The plaintiffs also adduced seven witnesses, out of whom P.W. I was plaintiff No. 1, P.W. 2 was her son Shivanand and P.W. 5 was plaintiff No. 2, whereas, P.Ws. 3 and 4 were witnesses on facts and P.Ws.6 and 7 were formal witnesses.
6. On the other hand, the defendant produced three documents marked as Exts. A, A/1 and A/2, which were Ekrarnama dated 28.03.1996, affidavit dated 28.03.1996 before the Notary and the signature of plaintiff No. 2, respectively. Apart from the aforesaid documentary evidence, the defendant adduced five witnesses, out of whom D.W.5 was son of the defendant, but the defendant did not depose as a witness.
7. The learned court below after considering the pleadings of the parties, evidence on record and the provisions of law specifically found that the plaintiffs have been able to prove their claim of personal necessity of the entire suit premises as partial eviction of the defendant would not satisfy the requirement of the plaintiffs. Accordingly, the said suit was decreed and a judgment of eviction was passed, which is under challenge in the instant Civil Revision.
8. After hearing the parties and after perusing the pleadings and evidence of the parties, it is quite apparent that following facts are admitted by both the parties:
(i) The plaintiffs are the owners and landlords, whereas, the defendant is a tenant and relationship of landlord and tenant exists between the parties.
(ii) Since year 2000, the defendant is in possession of two shop rooms as tenant in the building of the plaintiffs and out of them one is the suit shop room, in which the defendant is having his shoe-shop, whereas, in the other he is running his Readymade garment business.
9. Thus, following three points arise for consideration in the instant civil revision:
(i) Whether the plaintiffs had any bona fide personal requirement of the said premises?
(ii) Whether the requirement of the plaintiffs would be sufficiently satisfied by partial eviction of the defendant from the suit premises?
(iii) Whether the sit was hit by principle of pari delicto?
Point No. 1
10. So far question of bona fide personal requirement of the plaintiffs is concerned, it is averred on behalf of the defendant that the entire claim is absolutely false and frivolous as the defendant was inducted in the suit shop room in the year 2000 on a monthly rent of Rs. 300.00 but immediately thereafter the plaintiffs again started claiming exorbitant rent and when the defendant refused, the instant eviction suit was filed raising false claims. It was further averred that the plaintiffs were residing at Nasriganj and hence there was no occasion for them to open a shop 50 kms. away at Dehri-on-Sone specially for plaintiff No. 1, who is a lady. It was also claimed that the son of the plaintiffs himself admitted in his deposition that he was a student of Intermediate and hence he cannot have any such requirement. The defendant-petitioner also averred that the plaintiffs claimed Shivanand to be their son but he is not the son of the plaintiffs, rather he is their nephew.
11. It is an admitted fact that the defendant was the plaintiffs' tenant since several decades and the rent of the suit shop room was fixed at Rs. 300.00 per month in the year 2000 but there is no valid material to prove or even to reliably show that the plaintiffs demanded exorbitant rent. Hence, the plea of the defendant-petitioner that the eviction suit was filed due to the defendant's refusal to enhance the rent cannot be relied upon. So far question of the plaintiffs' residing at Nasriganj and seeking defendant's eviction from the suit shop room, which is situated at Dehri-on-Sone about 50 kms. away from Nasriganj is concerned, it has been specifically claimed in paragraphs 10 and 12 of the plaint supported by P.W. 1, P.W. 2, P.W. 3, P.W. 4, and P.W. 5 that the plaintiffs had a son Shivanand along with whom plaintiff No. 1 wanted to open Lady Corner Shop in the suit premises, for which she had training in sewing and stitching and that the plaintiffs wanted to shift from Nasriganj to Dehri-on-Sone because they had serious financial problems and they had a house at Dehri-on-Sone, whereas, they had no house at Nasriganj where they had taken a premises on rent. These facts have not been disproved by the defendant by any valid material rather D.W. 3 had stated that house of plaintiff No. 2 situated at Nasriganj had already been sold and he is in necessity of a shop. Thus, it is quite apparent that the plaintiffs have no house at village Nasriganj and they are running a shop at Nasriganj in a rented premises and due to serious financial problems they want to shift their residence as well as business to Dehri-on-Sone where they already have a residential house. The law is well-settled that when a landlord himself is using rented premises then it is sufficient to prove his personal necessity for his own premises. Reference in this regard may be made to decisions of this Court in case of Tip Top and Ors. v. Smt. Indramani Devi as well as in case of Dr. Hemchandra Jha v. Smt. Anjana Lal reported in 1987 P.L.J.R. 582.
12. It may be also stated in this regard that the suit was filed in the year 2001 and there is no material to show that any of the shop-rooms in the plaintiffs' building was vacated by any tenant of the plaintiffs or that they let out any premises to any person during the suit proceeding. Hence, the plaintiffs' plea of personal necessity cannot be discarded and in any view of the matter the plaintiffs had a right to choose the premises, which they thought to be appropriate for their requirement. Reference in that regard may be made to a decision of this Court in case of Tip Top (supra) and also to a decision in case of Prem Prakash Sah v. Bhadarmall Sharma reported in 1983 P.L.J.R. 705 as well as in case of Sadhu Sharan Sahay and Anr. v. National Seeds Corporation Ltd. reported in 1989 B.B.C.J. 126.
13. So far question raised that Shivanand, who is claimed to be the son of the plaintiffs, was merely a student is concerned, it is quite apparent from the facts, pleadings and evidence that plaintiff No. 1 had training in sewing and stitching and she wanted to shift her business from a rented premises at Nasriganj to her own building, namely, the suit premises at Dehri-on-Sone and Shivanand was merely to help her in business. The fact that said Shivanand was a student does not falsify the claim that he was unemployed. In a family of businessmen, sons start helping their parents from their student days, hence this aspect also did not help the defendant.
14. So far the question raised by the defendant that Shivanand was not the plaintiffs' son is concerned, it is quite apparent that the plaintiffs had specifically claimed in their plaint that Shivanand was their son and the defendant in paragraph 15 of his written statement clearly admitted the said fact. Furthermore, there was neither any pleading nor any evidence on behalf of the defendant-petitioner to show that Shivanand was not the son of the plaintiffs. Hence, the defendant-petitioner has failed to substantiate this claim, which has been raised for the first time. In the said facts and circumstance, this plea appears to be baseless and frivoloua.
15. In view of the aforesaid facts and circumstances, it is quite apparent that the plaintiffs have been able to prove their bona fide personal requirement of the suit premises for opening a Lady Corner Shop.
Point No.(ii)
16. The defendant-petitioner has also raised the plea of partial eviction. In this regard, it appears from the materials on record that the defendant-petitioner had neither raised any pleading that the requirement of the plaintiffs would be satisfied by partial eviction of the defendant from the suit premises nor he had led any evidence in that regard although the onus was squarely on the tenant to show that partial eviction of the suit premises shall satisfy the personal necessity of the plaintiffs. Hence, when a tenant is himself not agreeing to partial eviction, the Court is not bound to consider the same. Reference in this regard may be made to several decisions of this Court i.e. in case of Om Prakash Sharma v. Kishun Mistry reported in 1985 P.L.J.R. 727 and in case of Bata India Ltd. v. Dr. Md. Qamruzzama reported in 1993 (1) P.L.J.R. 87 as well as in case of Food Corporation of India and Ors. v. Vishun Properties & Enterprises and Ors. reported in 1995 B.B.C.J. 711.
17. Apart from the aforesaid settled principles of law, it is quite manifest. From the impugned judgment that. the learned court below was fully aware of the point of partial eviction as the said issue had been considered and discussed in paragraph No. 11 of the impugned judgment and hence the compliance of proviso to Section 11(1)(c) is complete and the learned trial court has rightly come to the conclusion that the plaintiffs required the entire suit premises.
18. Thus, it is held that partial eviction of the defendant from the suit premises would not satisfy the requirement of the plaintiff. Reference in that regard may be made to a decision of this Court in case of Haveli Ram Bhatia v. Smt. Rajwanti Devi and Ors. reported in 1984 P.L.J.R. 207.
Point No. (iii)
19. The defendant-petitioner also raised the point of pari delicto claiming that the plaintiffs had taken Rs. 56,376.00 from the defendant as loan for construction of the shops, which was to be adjusted in the rent, according to which Rs. 200.00 per month was being adjusted towards the rent of the two shops in possession of the defendant and more than Rs. 40,000.00 was still to be adjusted from the rent. This claim of the defendant had been denied by the plaintiffs, who had specifically averred that they had taken only Rs. 30,000.00 from the defendant and only a small amount was left, which can be adjusted from the rent of the other shop, which was admittedly in defendant's tenancy and was not subject matter of the eviction suit.
20. The defendant-petitioner has relied upon a decision of the Hon'ble Apex Court in case of Mohd. Salimuddin v. Misri Lal and Anr. , in which it was held that if under an agreement containing stipulation that the loan amount was to be adjusted against the rent, which accrued, and the amount so advanced was sufficient to cover the landlords' claim of arrears of rent for the relevant period, it could not be said that the tenant was not entitled to claim adjustment of the loan amount so advanced against the rent, which accrued subsequently, simply because the loan advanced was in violation of the prohibition contained in the Rent Act. It was, thus, held that the tenant being not in arrears of rent after the adjustment of loan amount towards the rent, he was not liable to be evicted from the premises in question on the ground of default and the doctrine of pari delicto was not attracted to such a situation. This case law is not applicable to the facts and circumstances of the present case as in the first place the instant eviction suit was not on the ground of default of payment of rent, rather it was on the ground of personal necessity of the plaintiffs and in the second place there was admittedly another shop belonging to the plaintiff-opposite parties, which was still in the tenancy of the defendant, from which the amount of loan could be adjusted.
21. It is quite apparent that the doctrine of pari delicto is attracted only when none of the parties is a victim of any exploitation and both the parties have voluntarily and by their free-will joined hands to flout the law for their mutual gain. Such being the position, the said doctrine embodying the rule that a party to a transaction prohibited by law cannot enforce his claim in a court of law, is not attracted to a situation like the present one. In the said circumstances, this plea raised by the defendant also fails.
22. Considering the aforesaid facts and circumstances, this Court does not find any illegality or error in the impugned judgment of eviction passed by the learned court below and, accordingly, this Civil Revision is dismissed.