Patna High Court
Krishna Murari Prasad vs Mitar Singh Alias Mitra on 19 August, 1991
Equivalent citations: 1992(1)BLJR610
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This civil revision application is directed against against dated 28th September, 1989 passed by Sri S.M. Alam, Munsif Hazaribaghin Eviction Suit No. 6 of 1989 whereby and whereunder the said learned court decreed the plaintiff-opposite party's suit for eviction on the ground of his personal necessity.
2. The fact of the matter lies in a very narrow compass.
3. The plaintiff opposite party was admittedly the landlord and inducted the defendant as a month-to-month tenant, according to the English calendar month with effect from 1-2-1973 on monthly rent of Rs. 275, wherein the defendant runs a hotel business in the name and style of 'Krishna Hotel'. According to the plaintiff, defendant advanced a sum of Rs. 3000 to complete the construction of the tenanted premises on the condition that the said amount would be adjusted @ Rs. 25 per month towards future rent and upon completion of the said adjustment of the advance amount, the defendant would pay the actual rent @ Rs. 275 per month to the plaintiff.
It was further averred that in case of pre-mature termination of tenancy either by the plaintiff or at the instance of the defendant, the balance unajusted amount of the advance paid, would be paid by the plaintiff to the defendant in cash at the time the tenanted premises is handed over to the plaintiff. According to the plaintiff the said amount of advance stood fully satisfied and adjusted.
4. The plaintiff has contended that he runs a business in one of the shop rooms in the said holding. He has two sons, namely, Harvinder Singh and Harmit Singh. According to the plaintiff, Harvinder Singh is unemployed and has completed his diploma certificate course at Indira Gandhi Institute of Electronics, Hazaribagh held during the period--September 1986 to August, 1987 and obtained a diploma in Radio and Tape Technology in December, 1988 and is still unemployed. The plaintiff also intends to get his eldest son settled in business for which he has the requisite qualification.
5. The plaintiff has admitted that he had filed a suit for eviction earlier as against the defendant which was registered as Title Suit (Eviction) No. 21 of 1980 and the said suit was dismissed and appeal preferred from the said judgment and decree by the plaintiff being Title Appeal No. 15 of 1983 was also dismissed.
It transpires that matter came up before this Court also in Second Appeal which was also dismissed some times in September, 1980.
6. The defendant filed a written statement contending inter alia therein that the plaintiff, in fact, obtained a sum of Rs. 5,000 as advance and not Rs. 3,000. The defendant further contended that the plaintiff started pressurising him for enhancing the quantum of rent which having not been agreed to by him an application was filed by the plaintiff for fixing the fair rent at the rate of Rs. 360 per month which was also dismissed.
7. The defendant further contended that in the earlier Title Suit, he had been depositing rent at the rate of Rs. 275 per month and, thus, the amount of advance received by the plaintiff still lying unadjusted. The defendant further contended that the purported requirement of the plaintiff is neither bona fide nor reasonable. The defendant further averred that the plaintiff himself is running a business in one of the five shop rooms which have been constructed in the said holding and four other shop rooms are occupied by different tenants including the defendant.
8. According to the defendant, no reason has been assigned as to why his shop room has been chosen. It was further contended that plaintiff has constructed six more shop rooms which are lying vacant and the plaintiff can easily settle his eldest son in one of the aforementioned shop rooms.
9. The learned court below in view of the aforementioned pleadings of the parties framed the following issues:--
(1) Is the suit maintainable?
(2) Is the suis barred by law of estoppel, acquiescence and res judicata.
(3) Is the plaintiff entitled to get decree in the suit on the ground personal requirement of the plaintiff?
(4) Is there any cause of action for the suit?
(5) Is there relationship between the plaintiff and defendant of landlord and tenant maintainable?
10. Learned court below answered all the issues in favour of the plaintiff.
11. Mr. N.K. Prasad learned Counsel for the petitioner has raised three contentions in support of this application. Learned Counsel firstly submitted that the learned court below has failed to take into consideration the background of the earlier litigation which having come to an end only in September, 1988, the suit filed by the plaintiff immediately thereafter should have been held to be mala fide.
Learned Counsel further submitted that the learned court below did not consider the admission made by P.W. 9 to the effect that the plaintiff had constructed, six shop rooms which are vacant and the same are fit for carrying business by the son of the plaintiff. Learned Counsel further has drawn my attention to the suggestion given to P.W. 8 in this regard.
12. Learned Counsel has contended that in any event the requirement of the plaintiff could have been substantially met if the defendant was directed to be evicted from a portion of the suit premises.
13. On the other hand, Mr. Sumir Prasad, learned Counsel appearing for the plaintiff-opposite party submitted that there is no denial of the fact that the plaintiff's son is unemployed and thus the result of the earlier suit will have no bearing for the purpose of determination of the question which fell for determination in the present case.
14. With regard to the second contention raised by Mr. N.K. Prasad, learned Counsel for the opposite party submitted that the constructions on the first floor of the suit premises are yet to be completed and from the materials on record, it would be evident that the same are not meant for business purposes at all inasmuch as the same is being constructed for residential purposes of the plaintiffs' family.
Learned Counsel in this connection, has drawn my attention to the fact that even the stair-case for going to the first floor of the house is from inside the house of the plaintiff and, thus, the question of the said first floor being used for business purposes dos not arise, at all.
15. Learned Counsel further submitted that at present the plaintiff is residing in a rented premises.
Learned Counsel further drew my attention to the fact that the plaintiff had all along been carrying on business in another shop premises but he has already been evicted therefrom.
It was further submitted that even the second son of the plaintiff is reading in B.A. and as such after completion of his education, some premises would also be required for him.
16. With regard to the question of partial eviction, learned Counsel submitted that no such pleading in the written statement has been made nor any evidence has been adduced in this regard by the defendant.
Re: Contention No. 1:
17. It is true that the plaintiff had earlier filed a suit for the eviction of the defendant in the year 1980 which was registered as Title Suit No. 21/80. The said suit was filed on the ground of default as also personal necessity in relation to some relatives of the plaintiff and not for his son. The said suit was decreed. The defendant preferred an appeal which was registered as Title Appeal 25/83. Before the appellate court the plaintiff gave up his claim of eviction on the ground of personal necessity. It appears from the records that the plaintiff filed a second appeal in this Court being Second Appeal No. 78 of 1988 which was dismissed in limine by this Court by an order dated 13-9-1988 (Ext. 8).
18. As noticed hereinbefore, according to Mr. N.K. Prasad the said Second Appeal having been dismissed only in September, 1988, the plaintiff could have stated about his impending need in foreseeable future and amend the plaint. That having not been done, the suit filed by the plaintiff immediately after the dismissal of the said second appeal must be held to be mala fide. The contention of the learned Counsel is devoid of any merit. As noticed hereinbefore, the aforementioned Title Suit No. 21/80 was filed on the ground of default as also on the ground of personal necessity of a relation of his. In the said suit, the plaintiff did not state at all as to for whom the premises was required. The trial court as also the first appellate court held that the plaintiff had not been able to prove his case of default.
19. From a perusal of the order dated 13-9-1988 as passed in Second Appeal No. 78 of 1988 (R) (Ext. B) it appears that the only ground urged before this Court was with regard to the point of default and this Court having found that a concurrent finding of fact has been arrived at that the defendant was not a defaulter, the said second appeal was dismissed in limine.
20. In this suit, however, the plaintiff has prayed for eviction only on the ground of personal necessity for his son, Harbinder Singh upon his obtaining a Diploma in December, 1988. The sain diploma has been marked as Ext. 6. The plaintiff filed the aforementioned suit on 4-3-1989.
21. It is, therefore, not correct to say that the suit filed by the plaintiff on the ground of his personal necessity for setring up his son in the business is mala fide. The causes of action for filing the earlier title suit No. 21 of 1980 and the present suit are absolutely different. The contention of Mr. N.K. Prasad in this regard must be rejected.
Re: Contention No. 2:
22. The plaintiff has pleaded about his personal necessity, in Paragraphs 5, 6 and 7 of the plaint, wherein it was categorically stated that Harbinder Singh is unemployed and has completed his diploma certificate course from Indira Gandhi Institute of Electronics, Hazaribagh having undergone the course from September 1986 in August, 1987 and passed the final examination in August 1987 whereafter he was granted a diploma in Radio and Tape Technology in December, 1988 and is still unemployed and dependant on the plaintiff.
23. The said statement have been traversed in Paragraph 20 of the written statement which reads as follows:--
That the statements and allegations made in Paragraphs 5, 6 and 7 of the plaint are incorrect, false, concocted and as such denied in toto. The grounds taken by the plaintiff for personal necessity is not such which can be proved the bona fide requirement of the plaintiff rather the same is mala fide with sole intention to feed fat his grudge against this defendant who did not concede the illegal demand of the plaintiff.
It will, therefore, be clear that a vague denial has been made by the defendant. It has not been specifically denied that the son of the plaintiff did not obtain the said certificate or was not sitting idle.
24. Mr. N.K. Prasad, learned Counsel, submitted that Ext. 6 was not validly proved and from the evidence of P.W. 10 it would appear that he could not prove the same. It is true that at the time of recording his deposition, the said certificate was marked with the figure T for identification. However, from the reading of his entire deposition, it appears that he categorically stated that he had obtained training for repairing of T.V. etc. He further denied that he looks after the business of his father. He proved the certificate by identifying the signature of Sri Anandi Sharma of the said Institute as also the Managing Director thereof Md. Nasim.
25. The said certificate is in printed form. The same has, therefore, been proved in accordance with law inasmuch as it was not necessary for P.W. 10 to prove the printed portion of the said certificate for which there is no provision in the Indian Evidence Act. He also stated the details of the investment which is required to be made for opening a T.V. shop. In his cross-examination he has also stated in details as to how he would commence his business. He stated that the necessary fund will be provided by his father.
26. It is not the case of the defendant that the plaintiff is not in a position to make any investment for opening any shop. As noticed hereinbefore, even the defendant has contended that the plaintiff is constructing the first, floor over the premises where the shops premises are situate.
27. From a reading of his deposition, there cannot be any doubt that he has withstood the test of cross-examination well and there is nothing to discredit him.
28. The plaintiff has examined 11 witnesses, out of which six are formal. The only material witnesses are P.Ws. 4, 5, 9, 10 and 12.
29. The learned court below has considered and analysed all the evidences record and came to the conclusion that the plaintiff has been able to prove his bona fide personal requirement of the suit premises.
30. As indicated hereinbefore, Mr. N.K. Prasad merely sbbmitced that the learned court below has not considered the effect of admission of P.W, 9 as also P.W. 8 wherein they admitted that the shop rooms which were being constructed on the first floor were fit for carrying on business.
31. P.W. 8 in his deposition has categorically stated that the construction is still incomplete and he does not intend to let out the said premises. He further stated that he has been constructing the same for his residential purposes. It appears that the learned court below has wrongly recorded his suggestion stating that it would not be correct to say that the requirement of his son will not be met from one of the rooms situated in the first floor inasmuch as thereby he was merely denying a suggestion made to him by the defendant to the effect that the requirement of his son can be met by holding a shop in the first floor.
Mr. N.K. Prasad also conceed to this effect.
32. So far as P.W. 9 is concerned, he is an outsider. He merely stated that new constructions are being carried on upon the five existing shops. He also stated that the constructions are going on. He, however, could not say as to since when the construction have been stopped. He stated that that building may also be fit for starting the shop. However, no other question was put to him.
33. On the other hand, it appears that there are overwhelming evidences on the record to show that the plaintiff has other premises just behind the shop premises and the stair-case for going to the upper storey is through the back portion of the shop premises where the plaintiff's other rooms are situated, which are being used by him for residential purposes.
34. Even D.W. 3 has admitted that the stair case starts from a room in occupation of the plaintiff and D.W. 2 has further admitted that there is no other space for going to the upper storey. He further admitted that the same is meant for residential purposes.
35. The defendant, had further produced a photograph of the suit premises and the learned Court below has observed that from a perusal of the said photograph itself, it would appear that the first floor is not meant for holding shops. Learned court below has further taken into consideration that as the stair-case for going to the first floor is through the residential portion of the owner of the houses the question of allowing the customers to go to the first floor through his residential house does not arise.
36. The finding of the learned court below is absolutely correct. It has not been contended before me by Mr. N.K. Prasad that any other premises is available for starting a business by the son of the plaintiff. The fact that the plaintiff's son (P.W. 10) is an educated and unemployed has not been disputed by the defendant. Learned Court below has arrived at a finding of fact on the basis of the evidence on record that he does not look after his father's business. This finding has not been questioned before me by the learned Counsel for the petitioner.
37. Taking thus all facts and circumstances into consideration, I am of the view that the second contention raised by the learned Counsel for the petitioner has also no substance. This contention must also be rejected.
Re : Contention No. 3.
38. Section 11(1)(e) and its proviso of the Bihar Buildings (Lease, Rent and Eviction) Control Act reads as follows:
11. Eviction of tenants.--(1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947) and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:
(c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord;
Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix proportionately fair rent for the portion in occupation of the tenant which portion shall henceforth constitute the building within the meaning of Clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under Section 5.
39. In the instant case, the shop premises consisted of only one shop room. It is true that from the schedule appended to the plaint, it appears that it measures 24' X 22'. The said shop room has also a verandah measuring 22' X 6'.
40. The defendent admittedly has been running a hotel business therein for a long time.
The defendant has been in occupation of the suit premises since 1973. A shop room measuring 24' X 22' is certainly required for running a restaurant. It is also not the case that there is any another room attached to the said shop room In a case where the suit premises consist of one shop room and the requirement of plaintiff is to set up a business, a presumption arises that the requirement of the plaintiff will not be substantially met if the defendant is directed to vacant a portion of the suit premises. The defendant in such a situation was under obligation to plead that the requirement of the plaintiff will substantially be met by evicting him from a portion of the tenanted premises. The detendant has neither pleaded nor proved the said fact.
41. Nothing has also been brought on records to suggest that two business enterprises; one for running a restaurant and another for T.V. business can conveniently be run in the suit premises.
42. Although a court has to pass judgments on the basis of materials on records it is also supposed to use its common sense.
It is not at all understandable as to how a shop room for selling Televisions as also for repairing T.Vs. for which purpose the plaintiff requires the suit premises, can be run by bifurcating a shop room measuring 24' X 22' so that in another portion of the shop premises, a restaurant can by the defendant which would consist of a kitchen, a washing place, a cash counter and also providing a space for eating by the customers.
43. Taking thus all facts and circumstances into consideration, I am of the view that the requirement of the plaintiff will not be substantially be met by evicting the defendant from a portion of the tenanted premises.
44. In the result, there is no merit in this civil revision application which is, accordingly, dismissed with costs. Advocate's fee assessed at Rs. 250.