Patna High Court
Ratanlal Baid vs Sohanlal Saha on 5 November, 1997
Equivalent citations: 1998(2)BLJR1386, 1999 A I H C 2443, (1998) 2 PAT LJR 357 1998 BLJR 2 1386, 1998 BLJR 2 1386
JUDGMENT R.N. Sahay, J.
1. By this application under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, the petitioner who was defendant in the Eviction Suit brought by the opposite party for recovery of possession of the suit premises has challenged the order of the Munsif, Kishanganj, dated 21.11.95 whereby the suit has been decreed against the petitioner and he has been directed to vacate the suit premises within a month of the order.
2. The petitioner was inducted as a tenant by the landlord-opposite party Sohanlal Saha long time back. The tenancy consists of one Pacca room with G.C. Sheeting roof having Varandahs on both sides, courtyard, latrine, and tubewell situated in Sonarpatti Road, Kishanganj, on monthly rental of Rs. 85/-. The landlord was serving as postmaster in village Pathawamari Sub-Post Office under Thakurganj Police Station in the district of Purnea. His two sons are unemployed. The landlord intended to engage them in a business but due to lack of accommodation he was not in a position to settle his sons. For this purpose he wanted the petitioner to vacate the residential premises in his occupation.
3. According its the landlord the suit premises was very suitable for opening shop for his sons. He served a notice on the petitioner to vacate the premises but the petitioner did not oblige. On the other hand, he filed a complaint before the House Controller, Kishanganj. The tenant alleges that the landlord became annoyed because he filed a petition before the House Controller for certain direction to the landlord. The suit was filed on untenable grounds. He did not require premises and the suit was not bona fide. The landlord founded his case on the ground that he wants to settle his two sons. The landlord retired during the pendency of the suit. The landlord asserted in his plaint that is sons are capable of running any type of business. The suit was filed on 16.7.91. The petitioner appeared and filed an affidavit in December, 1992, seeking leave to contest the suit. The petitioner defendant alleged therein that in 1989 one of the sons of the plaintiff, namely, Captan Prasad, who generally resides at Kishanganj turned hostile to the defendant and in order to evict the defendant he served a notice through his lawyer on the ground of personal necessity but the same was replied stating therein that the plea of bona fide personal necessity was false because only about three months back one room in the same building was let out to one Gyanchand who started a medicine shop who vacated. After institution of the suit landlord rented the premises to an Industry Officer. The son of the plaintiff disconnected the electric connection. The suit premises was never repaired for which the petitioner filed an application under Sections 6, 9, 10 and 20 of the B.B.C. Act before the Rent Controller, Kishanganj. The petitioner further alleged that the plaintiff's sons are not sitting idle but are engaged in different business.
4. The landlord in order to establish that his sons required the suit premises for business examined a number of witnesses,. The plaintiff was examined as P.W. 7 He deposed his two sons are sitting idle. They are interested in starting business, and, therefore, he served a notice upon the petitioner to vacate the suit premises. He stated that his sons are capable of running any type of business and he will support his sons, the suit premises was very suitable for opening a shop. The plaintiff denied the allegation that Gyanchand was his tenant and after he vacated the suit premises the same was given to an Industry Officer.
5. In his cross-examination the plaintiff stated that the petitioner was inducted tenant in the life time of the father of the plaintiff. In paragraph No. 9 the plaintiff stated that after he got notice to quit served on the petitioner he let out a room in the same premises to an Industry Officer on monthly rental of Rs. 200/-. He has further stated that the premises that was let out to industry officer is absolutely similar to one in occupation of the petitioner.
6. Learned Counsel for the petitioner has rested his entire argument on this admission of the landlord. Learned Counsel submitted that it is clear from this admission that the landlord's assertion he required the suit premises for opening of a shop for his sons is frivolous. If he was so serious then he would not have let out vacant premises to officer of Industry Department on the expectation that the present suit would be decreed. Interestingly the plaintiff has not stated that the accommodation which was let out to officer of Industry Department was not suitable for carrying on business. Learned Counsel for the landlord has tried to convince me that actually the premises which is in possession of the petitioner is more suitable for business. This submission cannot be accepted in absence of such plea and evidence in this regard.
7. Out of the witnesses examined on behalf of the petitioner Sanjay Prasad, D. W. 5, stated that there are seven rooms in possession of the plaintiff. The plaintiff had been inducted as tenant in the back portion of the house. The witness has stated that the plaintiff does not require the suit premises for his own use.
8. Vijay Kumar, D. W. 3, has stated that the room in possession of the petitioner was 10' × 10' and he inducted a tenant three months earlier to the institution of the suit. The petitioner has stated that the room in possession is 8' × 10'. He has stated that the landlord had filed a case before the Rent Controller for enhancement of the rent. The rent was enhanced to Rs. 180/-during the pendency of the suit. He has also asserted that the landlord did not require the suit premises for any purpose. His requirement was not bona fide.
9. It is well settled that it is for landlord to decide how and in what manner he should live and is best Judge of his residential requirement. If landlord desires to beneficially enjoy his own property when other property occupied by him as tenant or any other basis is either insecure or inconvenient, it is not for Courts to dictate him to continue to occupy such premises.
10. Learned Counsel for the landlord contended that in view of the principle laid down by the Supreme Court the suit was rightly decreed.
11. In a recent decision of the Supreme Court in Mennal Eknath Kshirsagar v. Traders & Agencies, 1997 (1) RCJ 395, the Supreme Court quoted the following observations in Prativa Devi v. T.V. Krishnan -
The landlord is the best Judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own... There is no law which deprives the landlord of the beneficial enjoyment of his property.
12. However, the facts of the decision, in Meenal Eknath Kshirsagar's case (supra) is absolutely different from the facts of the present case. The Supreme Court held that the landlord had been able to prove his case of bona fide requirement disagreeing with the view of Bench of Bombay High Court. Here the only point for decision is whether the landlord has been able to establish that his claim for eviction of the petitioner was bona fide or mere pretence.
13. In view of the admission of the plaintiff himself, there months prior to the institution of the suit he let out an identical accommodation to another person though he required a suitable place for opening shop, it cannot be said that his requirement was bona fide. It was held by the learned single Judge of Madhya Pradesh High Court in Ram Charan Singh v. Brij Bhushan Pandey 1997 (2) RCJ 329, that the proposition that the landlord is the sole arbiter of his need is not to be accepted as the only view on the matter. There is no doubt that the subjective choice exercised in a reasonable manner by the landlord should normally be respected by the Court. Where the need for accommodation is proved, the Court is not to dictate the 'landlord to continue in the same premises. The term bona fide represents something more than a desire or with to occupy. It is quite clear it does not convey the idea of absolute necessity in the sense that there would be no other possible alternative for the landlord for meeting his requirement except by occupying his property.
In Bekhabchand v. J.R.D. Cruz AIR 1923 Calcutta 223, Buckland, J. observed as follows-
I do not think that it is enough that a plaintiff in order to defeat a plea under the Calcutta Rent, Act should merely say that he desires the premises bona fide for his own occupation. The word in the Act is not 'desire' but 'require'. This in my opinion involved something more than a mere wish and it involves an element of need, to some extent at least. I am unable to see that there is any need on the part of the plaintiff. He did not put his wife's health forward as a ground for his requirement until later, and so far as his requirement arose from other circumstances, he put himself in the position in which he found himself by letting out part of his residential house in No. 37, Canning street of these mercantile firms and companies as I believe for the purpose of obtaining a substantial rental.
I do not think that I should be right in holding that a landlord who has premises sufficient for his requirements should be allowed to eject tenants because he chooses for his own convenience or profit to deprive himself of the use of the premises which he is occupying and then to say to his tenants having deprived myself of the use of the premises which I have higher to occupied. I, therefore, require the house in which you live for my own occupation and I now propose to eject you.
This, in my judgment would be to defeat the objects of the Act and I do no think that in such circumstances a landlord can be said bona fide to require the premises for his own occupation.
I, therefore, find that the plaintiff does not bona fide require the premises for his own occupation.
In my considered view, the learned munsif erred in granting the prayer of ejectment in view of the admission made by the plaintiff. The plaintiff has failed to establish that he required such premises. The learned Munsif has not considered the effect of the admission in the right perspective, the plaintiff has not sated in his evidence that the suit premises was more suitable for business than the one which was let out to Industry Officer.
In this view of the matter the order of the learned Munsif is set aside and the plaintiff's application is dismissed. There will be no order as to costs.