Jharkhand High Court
Sri Kripa Shankar Dwary vs Nand Lal Charan Dwary on 2 February, 2009
Equivalent citations: AIR 2009 (NOC) 2373 (JHAR)
Author: M.Y.Eqbal
Bench: M.Y.Eqbal
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
C.R.No. 14 of 2008
Sri Kripa Shankar Dwary. . . . Petitioner.
Versus
Nand Lal Charan Dwary . . . . Opp.party..
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Coram The Hon'ble Mr. Justice M.Y.Eqbal
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For the Petitioner : M/s V.Shivnath A.K.Choudhary
For the Opp.parties : M/s P.K.Prasad & P.Pallav.
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6/02.02.2009. This revision application under section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 is directed against the judgment dated 10th April, 2008 passed by Sub-Judge-VII at Deoghar on remand by the High Court whereby he has decided the question of partial eviction in Title Suit No.22/97.
2. I have heard Mr. V.Shivnath, learned Senior Counsel for the petitioner and Mr. P.K.Prasad, learned Senior counsel four the opposite party and with their consent, the revision is decided at the admission stage.
3. The plaintiff/O.P. filed Title (Eviction) Suit No. 22/97 for a decree of eviction of the defendant/petitioner from the suit property on the ground of expiry of period of lease and also on the ground of personal necessity. Plaintiff's case in a nut shell was that the suit property was leased out to the defendant for a fixed period commencing from 01.07.1996 to 30.6.1997 on monthly rent of Rs.500/- by virtue of registered deed of lease dated 26.6.1990. After expiry of period of lease, the plaintiff filed the aforementioned suit both on the ground of expiry of period of lease and also on the ground of personal necessity. The suit was decreed on both the grounds.
4. Aggrieved by the said judgment and decreed, the defendant-petitioner filed Civil Revision No.107/05 assailing the finding arrived at by the court below on the ground of expiry of period of lease and also on the ground of personal necessity. This Court after re-appreciation of entire evidence affirmed the finding recorded by the trial court on the issue of expiry of period of lease as also on the ground of personal necessity. So far expiry of period of lease is concerned, I would like to quote paragraph 7 of the judgment passed by the learned Single Judge in C.R. No.107/05, which reads as under :
2"After hearing the parties and giving thorough consideration on the facts, evidences and materials on record, I find that learned Trial Court has appreciated the evidences and considered the facts and materials on record as also the provisions of law and has come to the finding that the defendant-petitioner failed to exercise his option for renewal of the tenancy lease after expiry of the original term and that the plaintiff has proved his case that he requires the suit premises for starting his hotel/restaurant business in the suit premises and that the need is reasonable and bonafide. The said findings are based on thorough appraisal of evidences, facts and relevant provisions of law. I find no weighty ground to disturb the said findings of facts arrived at by learned Trial Court."
5. From perusal of the aforesaid paragraph, it is manifestly clear that learned Single Judge affirmed the finding on the issue of expiry of period of lease and refused to interfere with the finding. On the question of personal necessity the Court also affirmed the finding that the plaintiff requires the said premises for personal use and occupation. However, since there was no finding with regard to partial eviction, the learned Single Judge remanded the matter back to the trial court for deciding the issue of partial eviction. While remanding the matter to the trial court, the learned Single Judge reiterated that he has not disturbed the finding recorded by the trial court on the issue of expiry of period of lease and also on the ground of personal necessity. For better appreciation, paragraph 9 of the said judgment is quoted herein below :
"The proviso to Section 11(1)( c) of the said Act makes it mandatory for the Court to pass a decree of only partial eviction if the Court considers that the reasonable requirement of the landlord 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 part, if the tenant agrees to such occupation. Section 2(b) of the said Act defines 'building as any building, or hut or a part of the building or hut, let or to be let separately for residential or non-residential purposes and also includes the garden grounds and out-houses, if any, appurtenant to such building or hut or part of such building or hut or part of such building or hut etc. A ground appertaining 3 to the structure also comes within the definition of the building. Proviso to Clause C of Section 11 (1) of the said Act dealing with partial eviction is the mandatory provision. It is obligatory on the part of the Court to find out whether the requirement of landlord can be substantially satisfied from partial eviction. The eviction order passed without such consideration is bad and unsustainable. The finding on partial eviction by learned Court below is not based on due consideration of evidences and material on record and is perverse and unsustainable. The said finding of the Court below is, hereby, set aside. The case is remitted to the Trial Court for fresh consideration only on the said issue of partial eviction in accordance with law. It is made clear that this Court has not disturbed the other findings of facts arrived at by learned Court below except the finding of partial eviction. The parties will appear before the Trial Court on 31.10.06, on reopening of the Court after annual vacation. The Trial Court thereafter fix a date in the presence of the parties and then shall proceed with the hearing of the case. The Court below shall afford opportunity of hearing to the parties on the issue of partial eviction. Learned Trial Court at its discretion may also allow the parties to lead evidences, if the evidences and materials already available on record are not found sufficient to come to a just decision. Learned Trial Court shall dispose of the case within a period of three months from the date of commencing the hearing. This civil revision is allowed to the extent indicated above. However, there is not order as to costs."
6. After remand, the trial court allowed the parties to lead evidence and after considering the evidence came to the conclusion that partial eviction will not satisfy the requirement of the plaintiff. Consequently, the suit for eviction was decreed. Hence, this revision application under section 14(8) of the said Act.
7. Before deciding the question raised by Mr. V. Shivnath, learned senior counsel appearing for the defendant-petitioner, I would like to quote Section 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982, which reads as under :
"11. Eviction of tenants (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of 4 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 there from except in execution of a decree passed by the Court on one or more of the following grounds:-
(a) for breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee, on his ceasing to be in such employment;
(b) where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of the tenant or of any person residing with the tenant or for whose behavior the tenant is responsible;
(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 hence forth 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.
(d) where the amount of (two months rent, lawfully parable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16;
(e) in case of a tenant holding on a lease for a specified period, on the 5 expiry of the period of the tenancy; and
(f) the landlord requires the premises in (order to carry out any building work at the instance of the Government or the Municipality or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority within whose jurisdiction the building lies and such building work cannot be properly any fully carried out without the premise being vacated."
2. (a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building he shall give fifteen day's previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall under intimation to the landlord within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government or direct that the landlord shall be put in possession of the building:
Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building.
(b) Where a building is vacated by a servant of the Government any person occupying such building other than the person referred to in clause (a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed.
Provided that after a landlord has been or is deemed to have been put in possession of such building, he may let it to any person."
8. From bare perusal of the aforesaid provision, it is manifestly clear that a tenant in occupation of the building can be evicted on any of the grounds, i.e. breach of terms of tenancy including sub-letting, personal necessity, default and expiry of the fixed period of lease. However, provisio of section 11(1)(c) cast a mandate on the Court to decide the issue of partial eviction. In other words, if the Court records a finding of personal necessity in favour of the plaintiff, then it is mandatory for the Court to further record a finding as to whether partial eviction will satisfy the requirement of the plaintiff/landlord.
69. Be that as it may, as noticed above, the learned Single Judge repeatedly held that the finding recorded by the Court below on the expiry of period of lease and also the personal requirement need not be disturbed and the same are affirmed. There is no dispute with regard to settled proposition of law that a tenant can be evicted on any one of the grounds mentioned in Section 11 of the Act. In my opinion, therefore, since the ground of expiry of period of lease has been affirmed by this Court, the question of partial eviction cannot be assailed successfully by the tenant, inasmuch as even assuming that the question of partial eviction has been decided incorrectly, even then the decree for eviction shall be sustained on the ground of expiry of period of lease.
10. So far question of partial eviction is concerned, having regard to the fact that the trial Court, after considering all the facts and evidences on record, came to the conclusion that partial eviction will not satisfy the requirement of the landlord, I do not find any reason to interfere with such finding . This Court under section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act will only evaluate whether the judgment passed by the court below is in accordance with law or not ?
11. In the background of all these facts, prima facie I am of the opinion that this civil revision has no merit and is liable to be dismissed.
( M.Y.Eqbal,J.) Raman/A.F.R.