Patna High Court
J.C. Roy vs Halwant Sahai And Ors. on 20 December, 1984
Equivalent citations: 1985(33)BLJR514
JUDGMENT Satyeshwar Roy, J.
1. Defendant is the appellant. A suit was filed by Halwant Sahay as plaintiff for eviction of the defendant from a shop room. The suit was dismissed. He preferred an appeal which was allowed by the court below and the suit was decreed in has favour.
2. Halwant Sahay filed a suit against the defendant for his eviction on a number of grounds including one under Section 11 (1)(c) of the Bihar Buildings Lease, Rent and Eviction) Control Act, 1947 (the Act). During trial that ground was only pressed. The trial court held that Hal want did not require the building reasonably and in good faith and dismissed the suit. It may be noticed that Halwant Sahay wanted the said room for his son-in-law Rajendra for starting a shorthand and typewriting institute, The lower appellate court held that the necessity of Rajendra was the personal necessity of Halwant sahay within the meaning of law and decreed the suit.
3. On 22nd May, 1980 the following substantial question of law was formulated:
Whether on the facts and in the circumstances of the case the plaintiff-respondent may be held to require the house for his own occupation or for the occupation of person for whose benefit the building is held by him.
In order to appreciate the submissions made by the learned Counsel for the parties, the admitted facts which are required to be noticed are that Halwant Sahay the owner and the landlord of the suit premises had no son but had one daughter, namely, Sita Devi, Rajendra is her husband. Rajendra was living with Halwant Sahay in Halwant's house from the year 1935. Halwant retired from Government service some time in the year 1955. Rajendra who was steno-grapher to the Deputy Commissioner, Palamau, superannuated in the year 1973.
During the pendency of this appeal, Halwant Sahay died. He was substituted by his daughter, Sita Devi. Sita Devi also died and her legal representives including Rajendra was substituted in her place.
4. During the pendency of this appeal an application supported by affidavit was filed by the appellant in which he, inter alia, stated that the respondents during the pendency of the appeal constructed some new shop rooms and let out those to different tenant This was stated in order to show that the requirement alleged by the respondents was mala fide. Reply to this was filed by the respondents in which, inter alia, stated that the construction was started by Halwant and it was completed after his death. Meanwhile one of the daughters of Sita Devi became widow and in order to provide maintenance to her and her minor children the newly built shop room was let out to one tenant. For deciding this appeal, as the law stands and which the learned Counsel accepted was the position, the subsequent event that at least one shop room was constructed by the respondents and was let out to a tenant during the pendency of the us can be taken into consideration.
5. The legality of the judgment of the court below was challenged by Mr. Dey, learned Counsel for appellant, on a number of grounds, namely, whether:
(a) As there was no pleading and consequently no finding that Rajendra was economically dependent on Halwant, the suit could not have been decreed on the ground that Halwant required it for the use and occupation of his son-in-law:
(b) When a new room was constructed, if in fact it was the necessity of Halwant or his family for Rajendra to start a new venture to augment the income of the family, they could have very well started it in the new room.
(c) Even if in order to provide maintenance to one of the widow daughter of Sita Devi it was necessary to let oat the newly built shop room, the same could have been let out to the appellant, to enable him to vacate the suit premises to be occupied by Rajendra for his new venture;
(d) The fact that notice was given to a tenant to vacate the tenanted premises but no suit was filed when the rent was increased by that tenant, was not noticed by the lower appellate court to give a finding whether the necessity of the respondents was bonafide or mala fide.
Mr. N.K. Prasad, learned Counsel for the respondents, countered all the submissions made by Mr. Dey, it was submitted that it was not necessary for Halwant to show that Rajendra was economically dependent on him when the finding of fact of both the courts below was that Rajendra was residing with Hal-want from the year 1935. He urged that when one of the daughters of Sita Devi became widow, priority was given to make arrangement for her maintenance and, therefore, the newly constructed shop room was let out, According to him the court below took into consideration all the findings of the trial court including the fact of not filing a suit against one of the tenants by Halwant because that tenant enhanced the rent to come to a finding that Halwant required the suit premises reasonably and in good faith. During the course of argument reliance was placed by the learned Counsel for the parties on some decisions of this Court and the Supreme Court. Since this appeal can be disposed of on a very short point, I do not think it necessary to notice these decisions and to discuss all the submissions made during hearing.
6. As noticed above, the suit was filed by Halwant who died during the pendency of this appeal. Sita Devi, his daughter, who was substituted, having also died, the children of Sita Devi and her husband, Rajendra, was substituted in her place, it has already been noticed that the construction of the new room was finished by the respondents after the death of Halwant and the same was let out to a tenant to make provisions for maintenance of the widow-daughter of Sita Devi. This fact appears from the counter-affidavit filed on behalf of the respondents on 28 1-1982 and which was shown by Rajendra, In this counter affidavit, the respondents including Rajendra has not stated that the newly constructed shop room was offered to the appellant before letting it out to another person. If offer was given to the appellant and if he had accepted it, the appellants could have vacated the suit premises to enable Rajendra to start his new venture. It was stated in the counter-affidavit that one of the daughters of Sita Devi became widow on the next day following the Vijaya Dashami in the year 1977 and there was no body to look after her and her minor children. Before the respondents there were two necessities, the necessity for starting a new venture by Rajendra and the necessity to make provision for the widow daughter of Sita Devi. The respondents were entitled to solve first the necessity which was more pressing and that was arrangement for making the provision for the widow daughter of Sita Devi and the children. If the respondents decided to let out the newly constructed shop room, in the circumstances it cannot be said that the decision was mala fide. But nothing has been brought on record by the respondents to show that after they decided that the newly constructed shop room should be let out, they made any offer to the appellant to accept him as a tenant with regard to that shop room at a rate of rent which prospective tenants were offering. If the newly constructed shop room was let out to the appellant, both the necessities of the respondents would have been solved, for the rent which the appellant would have paid for the nelwy constructed shop room would have gone towards the maintenance of the widow daugther and children and the suit premises which would have been vacated by the appellant could be used for starting a shorthand and typewriting institute by Rajendra.
For the findings recorded above, I am of the opinion that the requirements of the respondents cannot be said to have been made in good faith.
7. In the result, the appeal is allowed. The decree of the court below is set aside and that of trial court is restored. There shall be no order as to costs.