Patna High Court
Ravindra Kumar Agrawal And Anr. vs Raghunath Prasad on 9 January, 1998
Equivalent citations: 1998(1)BLJR508
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This Civil revision application by the defendant/petitioner is directed against the judgment and Order dated 24.5.1996 passed by 3rd. Additional District Judge, Muzaffarpur in Eviction Appeal No. 5/94 whereby and whereunder the appeal was allowed and the suit was decreed for eviction of the defendant/petitioner in respect of the entire tenanted premises.
2. The plaintiff/opposite party filed Eviction Suit No. 56 of 1986 in the Court of Munsif, Muzaffarpur for eviction of the defendant/petitioner from the suit premises on the ground of bonafide personal necessity. The plaintiff's case, inter alia, is that he is the owner of the building bearing holding No. 86 located in Mohalla Nayatola. Ward No. 26 at Niteshwar Marg in the town of Muzaffarpur. The holding in question is double storied building wherein the plaintiff resides with his family members. The plaintiff's further case is that the defendant was inducted as tenants in the first floor of the building in respect of two rooms and subsequently two more rooms were given on rent by the plaintiff to the defendant. It is alleged that the building faces east towards the road running from north to south. The defendant is in possession of four bed rooms, one store room and one varandah. The plaintiff's further case is that at the time when the defendant was inducted as tenant his children were minors and as such he had no bonafide personal necessity, but later on three sons namely Satyanarain, Prasad, Ganesh Prasad and Bajrang Prasad became grown up. Satyanarain was married in June, 1986, Ganesh was going to be married in the said year. As the ground floor contains a Puja room, kitchen two bed rooms, a store room and one shop in the frontal room and the office of the work-shop just in the close back of the work-shop the same is not sufficient for accommodation of newly weded son Satyanarain and also there is difficulty in keeping the wife of the plaintiff's second son. It is further alleged that in the ground floor there are six rooms and open verandah, and only two rooms are used for residential. Out of this rooms one room from north east corner is in tenancy of one Mohan Vishwakarma who has been carrying Steel business Three rooms are engaged, in the work shop and office for the first son of the plaintiff and only two rooms are used for residential purposes. It is said the similarly on the first floor excluding the portion occupied by the defendant there are two rooms, one open courtyard and out of the two rooms one room is used as godown of the workshop and one room is used as they room therefore, in the circumstances, the plaintiff needs the tenanted premises for the accommodation of his family members.
3. The suit was contested by the defendant by filing written statement stating inter alia that initially the defendant was inducted as tenant on the monthly rental of Rs. 60/- per month which was enhanced to Rs. 175/- per month It is alleged that in the first floor there are three bed rooms, big veranda, court-yard and latrine besides the tenanted premises and these rooms are in occupation of the plaintiff. The defendant denied and disputed the personal necessity of the plaintiff. It is state that there are six bed rooms in the ground floor and the sons of the plaintiff were married since 5 years ago. It is further alleged that besides the double storied suit building there is another residential house just east-north of the building in question which is in the occupation of the plaintiff and his sons. The front portion of the building is used for commercial purposes, and the one big hall, one bed room and kitchen bathroom, latrine etc. are in occupation of the plaintiff who are utilising the same for the residential purposes. It is further alleged that there is another double storied building situate at Shyamnandan Road, near Railway Crossing is also in occupation of the plaintiff and his sons. In the said building the ground floor is used for commercial purposes and the first floor is being used for residential purposes. The first floor contains for bed rooms, one kitchen, latrine and bath room and the same are in occupation of the plaintiff and his sons. Under the aforesaid facts the defendant denied the allegations of personal necessity of the plaintiff.
4. The trying Court after recording the evidence of both the parties disposed of the suit in terms of the judgment dated 22.4.94 whereby the decree for partial eviction has been passed on the basis of facts and evidence on record. The trial court decided the issue of personal necessity in favour of the plaintiff. However, on the question of partial eviction the trial Court held that the decree for partial eviction will satisfy requirement of the plaintiff. The petitioner defendant having been satisfied with the decree for partial eviction did not challenge the judgment and decree but the plaintiff being dissatisfied with the judgment and decree of partial eviction preferred appeal before the District Judge. Muzaffarpur which was registered as Eviction Appeal No. 5/94. The said appeal was eventually allowed and the suit was decreed in full. The appellate court while confirming the finding of personal necessity held that the decree for partial eviction will not satisfy the requirement of the plaintiff. Hence this civil revision application by the defendant/petitioner challenging the judgment and decree of the lower appellate Court.
5. I have heard Mr. S.K. Mazumdar, learned Counsel appearing for the defendant petitioner and Mr. Yogendra Prasad Sinha, No. 1 learned Counsel for the plaintiff respondent Mr. Mazumdar learned Counsel appearing for the petitioner as sailed the judgment and decree of the appellate Court as being illegal and contrary to the facts and evidence on record. Learned Counsel submitted that the learned lower appellate Court has committed serious illegality in so far as it failed to consider the material evidence which came from the side of the plaintiff's witnesses. Learned Counsel further submitted that while deciding the question of partial eviction the learned lower appellate Court has completely over-looked the admissions made by the plaintiff's witnesses that besides the suit building there are other buildings belonging to the plaintiff where the family members of the plaintiffs has been residing and carrying on business. On the other hand, learned Counsel appearing for the plaintiff/opposite party submitted that the learned lower appellate Court has arrived at a finding of fact after considering the evidence on record and this finding should not be disturbed in the exercise of the revisional jurisdiction.
5. There is no force in the submissions of the e learned Counsel appearing for the plaintiff/opposite party. The power of revision exercised by this Court under Section 14(8) of the Bihar Buildings Lease Rent and Eviction) Control Act, 1982 is wider than of the revisional jurisdiction exercised exercise by the Court under Section 115 of the Code of Civil Procedure. This question is no longer res Integra. Long back the Apex Court held in the case of Harishankar v. Girdhari Lal AIR 1963 S.C. 698, and in the case of Matlni Nalcker v. Seth Manghraj , that the phrasc according to law refers to decision as a whole and not to be an error of law only in the case of Shri Vinod Kumar v. Smt. Surjit unreported judgment (SC) 1987 (2) the Apex Court held that if the trial Court arrives at a finding of fact ignoring the relevant materials and based its decision on irrelevant materials or extraneous consideration, then the High Court will have jurisdiction to interfere with the judgment and order of the Court below. Similarly a Dvision Bench of this Court in the case of Jai Prakash Jalan v. Rambilash Madan Gopal 1991 (2) PLJR 224, held that the High Court in exercise of power under Section 14(8) of the Act not only can consider the questions which are permissible in terms of Articles 226 and 227 of the Constitution as also Section 115 of the Code of Civil Procedure but also in cases where the trial Court has arrived at a finding of fact on erroneous construction of a legal provision.
6. Coming back to the instant case it appears that it was the specific case of the defendant petitioner that besides that suit building there is another double storied building just in front of the suit building which is occupied by the plaintiff and his family members for residential as well as commercial purposes. Learned Counsel appearing for the defendant/petitioner has drawn my attention to the evidence of P.W. 8 who admitted that there is another house of the plaintiff in front of the disputed house. Not only that the plaintiff who was examined as P.W. 13 has admitted in paragraphs 13 and 14 of his deposition that he had another building in front of the suit building having so many rooms. From perusal of the trial Court judgment it appears that the trial Court although has taken into consideration the existence of another building belonging to the plaintiff but has not given any finding while deciding the question of personal necessity, The relevant portion of the trial Court judgment is reproduced hererin below:
Seemingly, existence of other buildings in possession of the plaintiff through his tenant in no case be a ground to deprive the plaintiff for his bonafide requirement, desire and wish to evict the defendant. In common parlance it would not be just and proper for the plaintiff of keep some of the family in one building and some of the family in other building. It would be against the principle of natural justice. Letter and the spirit of the Act is not to ignore the hardship, peace, harmony of the land lord and his family members, if it is ignored then it would tentamount to an invasion over the right of property of the family member of the land-lord and which is against the spirit of the Constitution.
In view of the aforesaid discussion and finding it has got to be held that the plaintiff is under the dire need of the suit premises for his bona fied requirement, for the residential purpose of his family members.
As noticed above, the defendant petitioner was satisfied with the decree for partial eviction and did not challenge the judgment and decree by filing revisions before this Court. I am, therefore, of the opinion that there is no need to disturb the finding of the trial Court regarding partial eviction. The judgment impugned before me is the judgment of the lower appellate Court against which the defendant/petitioner is aggrieved. From perusal of the appellate Court judgment it is evident that the learned lower appellate Court has totally overlooked and ignored the admissions came in evidence. The learned lower appellate Court is not justified at all in holding that the personal need of the plaintiff will not be satisfied by a decree of partial eviction. The finding arrived at by the leaned lower appellate Court is apparently contrary to the evidence of the witnesses examined by the parties instead of recording a positive finding on the question of partial eviction the lower appellate Court simply held that it would not be just and proper to direct the plaintiff appellant to remain, satisfied only with two rooms out of four rooms occupied by the defendant. Had the appellate Court taken notice of the fact that the plaintiff had got other building having sufficient accommodation, then the appellate Court would not have come to that conclusion. In that view of the matter, I am of the opinion that part of the finding of the lower appellate Court cannot be sustained in law.
7. For the reasons aforesaid, this civil revision application is allowed and the impugned judgment and decree passed by the lower appellate Court is set a side and the judgment and decree passed by the Munsif, Muzaffarpur in Eviction Suit No. 56/86 is restored. There shall be no order as to costs.
Before parting with the judgment direct the petitioner defendant to pay the entire arrears of rent at the rate last paid within three months from today for the reasons that tenant cannot be allowed enjoy the property without paying rent.