Jharkhand High Court
Sohail Karimi vs Sanjida Begam on 29 November, 2012
Author: P.P. Bhatt
Bench: P.P. Bhatt
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
Civil Revision No. 24 of 2012
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Sohail Karimi ... Petitioner
-V e r s u s-
Sanjida Begam & Others ... Opposite Parties.
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CORAM: - HON'BLE MR. JUSTICE P.P. BHATT.
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For the Petitioner : - Mr. A. K. Das, Advocate.
For the Opp. Parties/Caveator : - Mr. P. K. Prasad, Sr. Advocate
and Mr. P.A.S. Pati, Advocate.
...
10/29.11.2012The present Revision application is filed under Section 14 sub clause (8) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 being aggrieved and dissatisfied by the judgment and order dated 29.04.2011, passed in Eviction Suit No. 19 of 1997, by the learned Subordinate Judge, VI, Jamshedpur, whereby the defendant has been directed to vacate the suit premises and to deliver the khas vacant possession of the suit premises to the plaintiffs within three months from the date of the order.
2. The learned counsel for the petitioner by referring the judgment and the evidence discussed in the judgment, submitted that the court below has not properly appreciated the evidence on record and thereby committed error while passing the decree in favour of the plaintiffs. The learned counsel for the petitioner by referring the plaintiffs' witnesses i.e. P.W. 1, pointed out from the cross-examination that in paragraph 26, 27, 33 and 40, certain admissions have been made by the plaintiffs' witnesses. Likewise, admission made in paragraph 17 of P.W. 3 is also referred by the learned counsel for the petitioner. The learned counsel for the petitioner further submitted that the Defendants' Witness No. 2 and Defendants Witness No. 3 have supported the case and in this context, he has also referred the examination-in-chief of these witnesses. The learned counsel for the applicant further submitted that the plaintiffs' case is based on bona fide personal necessity and in this context, the averments have been made in the plaint that they are three brothers and the two brothers are unmarried, because of shortage of space and considering this personal requirement of the plaintiffs, the court below passed an order in favour of the plaintiffs and thereby allowed the suit. It is further submitted that from the evidence on record, and on the basis of certain admissions, the facts reveals that two sons of the plaintiffs are residing in abroad (Saudi Arabia). However, this fact has not been properly considered and appreciated by the court below while considering the ground of personal necessity. It is further submitted that the ground of personal necessity is not proved on the basis of evidence on record. However, the court below by accepting the pleadings and the supportive evidence of the plaintiffs' witnesses, passed a decree of eviction in favour of the plaintiffs. It is further submitted that the court below has also not explored the probability of partial eviction. The learned counsel for the petitioner by referring 2 proviso of Section 11 (1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 2000, pointed out that duty is cast upon the Court to explore the possibility of partial eviction. By referring the impugned order, the learned counsel for the petitioner pointed out that the court below has failed to appreciate this aspect of the matter. The learned counsel for the petitioner further submitted that the plaintiffs are required to prove their own case but they themselves have demolished their case on the basis of certain admissions made by the witnesses during cross-examination. The learned counsel for the petitioner further submitted that the ground of personal necessity is also required to be existed on the date of passing of the decree, therefore, subsequent development, if any are also relevant for the purpose of deciding the issue in question. However, the court below failed to appreciate this aspect and thereby committed an error while allowing the suit.
The learned counsel for the petitioner, in support of his contentions, has referred to and relied upon the following judgments: -
(i) 1991 (2) P.L.J.R. 224
(ii) 1998 (2) BLJR 1353
3. As against that, the learned counsel for the Opposite Parties while supporting the judgment passed by the court below, submitted that the court below is required to pass judgment on the basis of the pleadings of the parties and the evidence on record and in this context, the learned counsel for the Opposite Parties has referred certain averments made in the plaint i.e. paragraphs 6 and 7 as well as the Schedule attached to the plaint. The learned counsel for the Opposite Parties has further submitted that there is formal denial of paragraphs 6 and 7 in paragraphs 12 and 13 of the written statement filed by the defendants. There is no specific denial by the defendants with regard to the averments made in paragraphs 6 and 7 of the plaint. In this context, the learned counsel for the Opposite Parties has placed reliance and invited attention to Order VIII Rule III of the Code of Civil Procedure. The learned counsel for the Opposite Parties further submitted that the court below has rightly and properly appreciated the evidence on record. In this context, the learned counsel for the Opposite Parties has referred to the oral evidence adduced by P.W. 1. By referring paragraphs 9, 10, 11, 12, 13 and 14 of the oral evidence adduced by P.W. 1, it is further submitted that this witness has supported the case of the plaintiffs. It is further submitted that in the cross-examination, this witness has stated about his one brother, who is at present serving at abroad (Saudi Arabia). In this context, the learned counsel appearing for the Opposite Parties has submitted that his two brothers have not permanently shifted to Saudi Arabia but for the purpose of earning, they have gone to Saudi Arabia for some period, therefore, the ground of personal necessity cannot be demolished on this count alone. The learned counsel for the Opposite Parties further pointed out that the defendants have tried to put forward their case in paragraph 18 of the written statement, but there is specific 3 denial in paragraph 28 of the oral evidence given by P.W. 1. The learned counsel for the Opposite Parties further submitted that the defendants witnesses have also miserably failed to prove the contention raised by them in their written statement. In this context, the learned counsel for the Opposite Parties by referring the oral evidence given by the Defendants witnesses and more particularly, in the examination-in-chief and the cross- examination, pointed out that they have deposed beyond the pleadings and the averments made in the written statements have not been proved by the oral evidence given by these witnesses. It is also pointed out that the court below is required to decide the case on the basis of the evidence on record, i.e. the pleadings and the oral evidence. It is further submitted that in the present case, though the stand was taken in paragraph 18 of the written statement, but the same has not been proved by any of the witnesses. The learned counsel for the Respondents by referring the oral evidence given by the defendants witnesses Nos. 2 and 3 from paragraphs 31 and 10 respectively, pointed out that the plaintiffs were very much present when the trial was going on and there is specific reference/note to this effect in the oral evidence given by these two witnesses.
The learned counsel for the Opposite Parties further submitted that so far as the point/issue raised with regard to the partial eviction, as provided in Section 11 (1)
(c) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 is concerned, the court below has rightly and properly appreciated this issue, which is discussed in Issue No. VIII in paragraph 13 of the judgment. The learned counsel for the Respondents has also referred to the proviso of Section 11 (1) (c) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 during the course of his submission. The learned counsel for the Opposite Parties has lastly submitted that the scope of Revision under Section 14 of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 is also required to be taken into consideration while deciding the present Revision application.
In support of his contentions, the learned counsel for the Opposite Parties has referred to and relied upon the following judgments: -
(i) (2012) 8 SCC 148
(ii) 1993 (1) P.L.J.R. 87
(iii) 2007 (4) P.L.J.R. 98
(iv) 2003 (1) J.L.J.R. SC 171
(v) AIR 2003 (SC) 532
(vi) 2004 (8) SCC 490
4. In reply to the submissions made by the learned counsel for the Opposite Parties, the learned counsel for the petitioner submitted that the plaintiff's witness No. 1 in his cross-examination in paragraph 40 has admitted that they are having five rooms and despite this admission, the court below did not consider this evidence and thereby committed error in allowing the suit filed by the plaintiffs. It is further submitted that 4 the desire expressed by the plaintiffs cannot be said to be bona fide. The said requirement is required to be proved by cogent evidence. It is further submitted that the plaintiffs have not proved their case for personal requirement and the same is also reflected from certain admissions made by the plaintiffs' witnesses during their cross- examination, the ground of personal bona fide requirement, as claimed by the plaintiffs has not been proved. However, the court below has not properly appreciated this aspect of the matter and thereby committed an error in passing the judgment and decree.
5. Considering the aforesaid rival submissions now the crucial issue, which is required to be decided in the present case is with regard to the legality and validity of the impugned judgment and order passed by the court below, whereby the plaintiffs' suit for eviction, which was filed on the ground of personal necessity has been allowed. The court below allowed the said suit and thereby directed the defendants to deliver the khas vacant possession of the suit premises to the plaintiffs within three months from the date of the order. On perusal of the said judgment and lower court record, it transpires that the court below has discussed the oral evidence adduced by the parties in detail while discussing the various issues and the court below has considered the pleadings of the parties and the oral evidence adduced by the plaintiffs as well as defendants in support of their pleadings and the averments made in the plaint as well as in the written statement. In this context, first of all, the pleadings made by the plaintiffs in the plaint is required to be seen. On perusal of paragraphs 6 and 7 of the plaint, it appears that the plaintiffs have made specific averments with regard to his bona fide genuine requirement of the premises in question. In paragraph 7, the plaintiffs have stated that this requirement is reasonable and in good faith and for their own use and occupation, the present suit has been instituted for the purpose of partial eviction. As against that, in the written statement filed by the defendants, these averments have been made in paragraphs 12 and 13 by stating that the statements made in paragraphs 6 and 7 are not true and therefore, the same are denied. Except this denial, there is no specific averments made in the written statement to controvert the statement made in paragraphs 6 and 7 of the plaint. It also appears that in paragraph 18 of the written statement, the defendants have tried to demonstrate that the plaintiffs have let out these premises to several persons but in support thereof, the defendants have not produced any evidence either oral or documentary to prove their case, which is stated in paragraph 18 of the written statement. Moreover, it appears from the evidence of the the plaintiff's witness nos. 1, 2 and 3 that all the three plaintiffs' witnesses have supported the case of the plaintiffs. So far as the cross-examination of theses witnesses is concerned, the contention raised by the learned counsel for the petitioner is that certain admissions have been made with regard to his two brothers, staying in Saudi Arabia. I found substance in the arguments advanced by the learned counsel for the Opposite Parties that these two brothers have not permanently shifted to abroad but for some period, they 5 were serving in Saudi Arabia. Therefore, the ground of personal necessity cannot be demolished, because they were serving for some time at abroad (Saudi Arabia). The ground of personal necessity is required to be seen in context with the pleadings of the suit, which is based on the oral evidence adduced by the plaintiffs' witnesses is required to be considered. On perusal of the judgment and findings recorded by the court below, it appears that the court below has rightly and properly considered the pleadings as well as the oral evidence adduced by the parties in the matter. It also appears that the court below has also considered the issue with regard to partial eviction in paragraph 13 of the impugned judgment, while discussing the Issue No. VIII. It appears that the court below has rightly and properly appreciated the provision made in Section 11 (1) (c) of the Act.
6. Section 11 (1) (c) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000, is reproduced hereinbelow: -
"11. Eviction of tenants.- (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions to 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:
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(c) Where the building is reasonable and in good
faith required by 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.
Explanation I.-In this clause the word "landlord"
shall not include an agent referred to in Clause (f) of Section 2. Explanation II.- Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference.
7. The oral evidence of the plaintiffs' witnesses is required to be considered in the light of the averments made in the plaint and on perusal of the averments made in the plaint and the oral evidence adduced by the plaintiffs' witnesses, it appears that plaintiffs' witnesses have supported the case of the plaintiffs. In this context, I also found substance in the arguments advanced by the learned counsel for the petitioner that 6 the court is required to consider the case on the basis of the pleadings as well as the documentary and oral evidence produced on record. In the present case, the court below has taken note of this aspect while discussing the various issues. The court below has taken note of the settled principle of law that evidence in variance of pleading cannot be taken into consideration and has to be ignored, while discussing the issue Nos. 4, 5 and
6.
8. I have perused the judgments cited by the learned counsel for the petitioner reported in -
(i) 1991 (2) P.L.J.R. 224
(ii) 1998 (2) BLJR 1353
9. In view of the facts and circumstances referred herein above, these judgments do not help to the petitioner's case.
10. So far as the judgments, which has been referred to and relied upon by the learned counsel for the Opposite Parties are concerned, on perusal of the judgment in the case of Savitri Sahay-versus-Sachidanand Prasad reported in 2003 (1) J.L.J.R. SC 171, it appears that Paragraphs 4, 7, 8 and 10 of the said judgment are relevant for the purpose of deciding this case and therefore, the same are reproduced hereinbelow: -
"4. At this stage it would be convenient to set out the relevant provisions of the Bihar Buildings (Lease, Rent and Eviction) Act, 1982 (hereinafter referred to as the said Act). Sections 11 (1) (c), 14 (8) and 17 of the said Act read as follows:
"11. Eviction of tenants.- (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions to 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:
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xxx xxx xxx
(c) Where the building is reasonable and
in good faith required by 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.
Explanation I.-n this clause the word "landlord" shall not include an agent referred to in Clause (f) of Section 2.
Explanation II.- Where there are two or more 7 premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference.
14. Special procedure for disposal of cases for eviction on ground of bona fide requirement.- (1) Every Suit by a landlord for the recovery of possession of any premises on the ground specified in Clause (c) or (e) of Sub-section (1) of Section 11 shall be dealt with in accordance with the procedure specified in this section.
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(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.
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17. When a tenant is entitled to restoration of
possession and compensation.-Where the landlord recovers possession of any buildings from the tenant by virtue of a decree secured because of Clauses (c) and (e) of Sub-section (1) of Section 11 and the building is not occupied by the landlord, or by the person for whose benefit the building is held, within one month of the date of vacation of the building by such tenant, or the building, having been so occupied, is re-let within six months of the date of such occupation to any person other than such tenant within the permission of the Controller, the Court may, on the application of such tenant, made within one month of his vacating the building, and, giving the landlord an opportunity of being heard by order direct the landlord to put such tenant in possession of the building or to pay him such compensation as may be fixed by the Court or both."
Thus it is to be seen that, under the said Act, if there are two or more premises the landlord could choose which one would be preferable to him or her and the tenant cannot question such preference.
7. Mr. Sanyal submitted that under Section 14 (8) the High Court only had revisional powers which were limited to satisfying itself that the order passed by the Trial Court was in accordance with law. In support of his submission, he relied upon the case of Hiralal Kapur vs. Probhu Choudhury, reported in (1988) 2 SCC 172, wherein it has been held, in the context of Section 25 (B) (8) of the Delhi Rent Control Act, 1958, that even though the powers were somewhat wider than similar powers under Section 115, yet the High Court was not entitled to enter into merits of factual controversy between the parties. Mr. Sanyal also relied upon the authority in the case of Sarla Ahuja vs. United India Insurance Company Ltd., reported in (1998) 8 SCC 119, wherein again, in the context of Section 25 (B) (8) of the Delhi Rent Control Act, 1958, it has been held that even though the word "revision" is not used the powers of the Court under this section are revisional in nature and a 8 reappraisal of evidence can be made only for the limited purpose of ascertaining whether the conclusion arrived at by the fact-finding Court is wholly unreasonable. Relying on these authorities, Mr. Sanyal submitted that the High Court erred in re-appreciating the entire evidence and arriving at a different conclusion.
8. We are unable to agree with the submission of Mr. Sanyal. We have perused the impugned judgment. The High Court did not re-appreciate evidence to arrive at a different conclusion. The High Court has merely set out the admitted facts and/or facts which have been proved during the course of trial. On the admitted or proved facts the High Court felt that the conclusion arrived at by the Trial Court was unreasonable and perverse. Therefore the High Court recorded its own finding. This the High Court was entitled to do once it concluded that the findings of the Trial Court were perverse.
10. It was next urged that the appellant was merely evicting the respondent in order to let out the premises at higher rent. It was urged that the appellant came from a very affluent and well known family in Bhagalpur and was therefore not likely to shift into the said premises. In our view, Section 17 of the said Act, which has been set out hereinabove, is a complete answer to this submission. In case the appellant does not shift into the said premises, it will be open to the respondent to apply, under Section 17 of the said Act, for restoration of possession and for compensation."
(ii) I have perused the judgment in the case of Akhileshwar Kumar and others- versus-Mustaqim and others reported in AIR 2003 (SC) 532 On perusal of the said judgment, it appears that Paragraphs 3, 4, and 5 of the said judgment are relevant for the purpose of deciding this case and therefore, the same are reproduced hereinbelow: -
"3. In our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that the plaintiff No. 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. The plaintiff No. 1 and his father both have deposed to this fact. Simply because the plaintiff No. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. What the High Court has overlooked is the evidence to the effect, relied on by the trial Court too, that the husband of plaintiff No. 4, i.e. son-in-law of Ram Chandra Sao, was assisting the latter in his business and there was little left to be done by the three sons.
4. So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No. 2. The suit was compromised and the shop was got vacated. The shop is meant for the business of plaintiff No. 2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible 9 inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodation which have prevailed with the High Court are either not available to the plaintiff No. 1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No. 2, who too is an educated unemployed, should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No. 1 another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the felt need of one of them.
5. We find it difficult to sustain the observation of the High Court that the requirement pleaded by the plaintiffs falls short of felt need and is merely a desire. The judgment of the trial Court is a detailed and exhaustive judgment which has taken into consideration each and every available piece of evidence and relevant circumstances, assessed with objectivity, consistently with the relevant principles of law and hence the finding is one which could not have been upset by High Court in exercise of its revisional jurisdiction. Moreover, as we have pointed out, the manner in which the High Court has proceeded to form an opinion at variance with the findings of the trial Court is wholly unsustainable.
(iii) On perusal of the judgment in the case of Pratap Rai Tanwani and another-versus-Uttam Chand and another reported in 2004 (8) SCC 490, it appears that Paragraph 15 of the said judgment is relevant for the purpose of deciding this case and therefore, the same is reproduced hereinbelow: -
"15. Recently, in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta7 this Court in a detailed judgment, dealing with this aspect, analysed the concept of bona fide requirement and said that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself--whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. We do not think that we can 10 usefully add anything to the exposition of law of requirement for self-occupation than what has been already stated in the three precedents."
(iv) On perusal of the judgment in the case of Maganlal-versus-Nanasaheb reported in 2008 (13) SCC 758, it appears that Paragraphs 25 of the said judgment is relevant for the purpose of deciding this case and therefore, the same is reproduced hereinbelow: -
"25. It is common experience in our country that especially landlord-tenant litigations prolong for a long time. It is true that neither can the person who has started the litigation sit idle nor can the development of the event be stopped by him. Therefore, the crucial event should be taken as on the date when the suit for eviction was filed, unless the subsequent events materially change the ground of relief."
(v) On perusal of the judgment in the case of Union of India-versus- Ibrahim Uddin and another reported in (2012) 8 SCC 148, it appears that Paragraph 77 of the said judgment is relevant for the purpose of deciding this case and therefore, the same is reproduced hereinbelow: -
"77. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi73, after placing reliance on a very large number of its earlier judgments including Trojan & Co. v. Nagappa Chettiar74, Om Prakash Gupta v. Ranbir B. Goyal75, Ishwar Dutt v. Collector (LA)76 and State of Maharashtra v. Hindustan Construction Co. Ltd. 77, held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. No party can be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon."
On the issue of partial eviction, the learned counsel for the Opposite Parties has cited following judgment : -
(vi) in the case of M/s. Bata India Ltd.-versus-Dr. Md. Qamruzzama reported in 1993 (1) P.L.J.R. 87.
On perusal of the said judgment, it appears that Paragraphs 6 of the said judgment is relevant for the purpose of deciding this case and therefore, the same is reproduced hereinbelow: -
"6. It would appear that while the main clause entitles the landlord to secure eviction of the tenant on the ground mentioned therein, the proviso mandates the court to hold enquiry as to whether the plaintiff's needs can be substantially satisfied by part eviction of the tenant from the premises. The question is who has to prove that the 11 requirement can be satisfied substantially by part eviction. In our opinion, the landlord cannot be saddled with the onus of proof 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."
Likewise, the learned counsel for the Opposite Parties has also referred to and relied upon the following judgment
(v) in the case of Most. Jagtarana Kuer & Others-versus-Lalmuni Kuer & Others reported in 2007 (4) P.L.J.R. 98 On perusal of the said judgment, it appears that Paragraphs 8 and 9 of the said judgment are relevant for the purpose of deciding this case and therefore, the same are reproduced hereinbelow: -
"8. It may be stated in this regard that the plea of partial eviction has to be raised by the defendant in his written statement and in his deposition in the eviction suit and that plea cannot be decided suo moto as has been held by this court in case of Food Corporation of India & Ors. vs. Vishun Properties and Enterprises & Ors. reported in BBCJ 711. Furthermore the onus squarely lies upon the defendant to show that partial eviction shall satisfy the personal necessity of the plaintiffs as has been held by this court in case of M/s Bata India Ltd. vs. Dr. Md. Quaruzzama reported in 1993 (1) PLJR 87. When tenant himself is not agreeing to partial eviction, failure of court to consider it does not vitiate its judgment as has been held by this court in case of Om Prakash Sharma vs. Kishun Mistry reported in 1985 PLJR 727. However, where the tenant has not taken the plea of partial eviction in his pleading or evidence, the court may consider the same and record its finding regarding it, only in a case where the suit is filed for eviction only on the ground of personal necessity.
9. In any view of the matter the suit premises contains four rooms, a verandah and sahan which the plaintiffs require for the purpose of residence of the members of their family, out of whom nine are already on record as respondents. The said personal necessity of the plaintiffs- respondents has already been upheld. In the said circumstances since the requirement of the plaintiffs is for the entire family, partial eviction shall not serve the purpose 12 of the plaintiff rather it would create many fresh problems."
11. In view of the above-referred judgments and the ratio laid down by the Hon'ble apex Court as well as by various High Courts and looking to the facts and circumstances, it appears that the court below has rightly and properly appreciated the evidence on record and thereby passed a judgment and order, directing the defendants to deliver the khas vacant possession of the suit premises to the plaintiffs within three months from the date of the order.
12. From the material on record, it appears that the plaintiffs have proved their case on the basis of the evidence on record and the court below after careful consideration of the facts and circumstances as well as the pleadings and the evidence on record, passed a detailed judgment and therefore, intervention of this Court is not needed while dealing with the Revisional jurisdiction. The scope of revisional jurisdiction under Section 14 of the Act is also discussed in the judgment, which has been referred to and relied upon by the learned counsel for the Respondents. Keeping in view, the ratio laid down by the Hon'ble apex Court as well as the various High Courts, the present Revision application deserves to be dismissed. Accordingly, this application is dismissed. Interim relief granted earlier, stands vacated.
13. Further Order : -
After pronouncement of the order, the learned counsel for the petitioner requested that some time may be granted to deliver the khas possession. The learned counsel for the respondent objected this request. However, considering the request made by the learned counsel for the petitioner, three months' time is granted to deliver the khas possession so as to give reasonable time to the petitioner to make alternative arrangement for accommodation.
(P.P. Bhatt, J.) APK