Chattisgarh High Court
Bhikamlal Devangan vs Bank Of Maharashtra on 5 December, 2006
Equivalent citations: 2007(1)MPHT60
JUDGMENT V.K. Shrivastava, J.
1. Third Additional Judge to the Court of District Judge, Durg, vide judgment and decree dated 27-7-1994 passed in Civil Suit No 87-A/94 disallowed the recovery of possession of ground floor of suit house, damages, means profit and profit of arrears of rent.
2. Facts of the case, in brief, as unfolded before the Lower Court, is that pLalntiff is the owner of House No. 46, Sanichari Bazar, Durg (hereinafter referred to as "the suit house"), respondent hired the suit house on rent on 11-4-1979. The ground floor was let out for Banking business and a portion of first floor was let out for residence of Bank Manager. Initially the rent was Rs. 1,020/- per month and the same was enhanced from March, 1982 at a rate of Rs. 1,275/-. Appellant made a request to the Bank for enhancement of rent and the Bank vide letter dated 3-9-1985 proposed to pay rent at a rate of Rs. 3,357 : 50 on additional conditions. Appellant accepted the proposal with some modification, but respondent did not pay the enhanced rent and still continued paying rent at a rate of Rs. 1,275/-. Respondent unauthorisedly closed the stairs of first floor and even did not use the first floor for residential purpose; as a result of which appellant was deprived from getting his building repaired which caused damages to the slab. Appellant has five sons except one, who is in service, rest of the sons are unemployed. His sons Vijendra, Chandra Shekhar and Santosh are inclined to start business of electrical works and remaining sons are willing to start business of hardware and for their business the appellant require the ground floor bonafide and the first floor for their residential purpose, on the ground that he has no other suitable accommodation in the city for business and residential purpose of his sons available in his possession. With the aforesaid averment a suit for eviction, arrears of rent, compensation and means profit was filed by the appellant.
3. Respondent did not dispute that he has taken the ground floor and a portion of first floor on rent on 9-3-1977 with appellant at a rate of Rs. 1,020/-per month and the rent was enhanced in March, 1982 by Rs. 1,275/-. Respondent on 3-9-1985 proposed to enhance rent for ground floor at a rate of Rs. 1.25 per st. ft. on certain additional conditions, and the same was accepted by appellant vide his letter dated 20-9-1985 with some modification. Respondent contested the Claim averring that there was no agreement to pay rent of stairs, verandah and toilet. The Bank never encroached upon any portion of the building. Appellant did not get the rent note renewed. The first floor let out to respondent was not suitable for residence of Manager, therefore, the portion let out to the Bank was used for keeping some un-used materials. Appellant did not require the suit accommodation bonafide.
4. Both the parties in order to establish their case adduced oral and documentary evidence and the Lower Court after adjudicating the dispute held that appellant is entitled for recovery of possession of first floor, difference of arrears of rent for three years, i.e., Rs. 74,970/- up to 14-10-1992 and thereafter rent at a rate of Rs. 3,357 : 50 per month. Accordingly, the suit was partly allowed and decreed vide impugned judgment and decree.
5. Learned Counsel for both the parties are heard, record of Lower Court perused.
6. Bhikamlal Devangan (P.W. 1), who is appellant, in his statement deposed that in the first floor there are four blocks and all the blocks were lying vacant even the Bank Manager did not reside in any of the block. The door leading to first floor was kept locked by the respondent. When ground floor is being used for banking purposes by a Nationalized Bank, it is quite natural that if no one is living in the first floor, for the safety of the Bank un-wanted openings should be kept closed. There is no reliable evidence to show that appellant ever attempted to get the key for occupying the first floor. Ashok Kumar Gupta (P.W. 4), in his statement, stated that he carried his building material through the first floor of the suit house. He demanded key with appellant and on stating that key is with Bank Manager he obtained the key and used the stairs of suit accommodation. Ramsharan Gupta (P.W. 6) also stated that in first floor there are four blocks, but all those blocks are in deteriorated condition, it means the first floor was not in actual occupation of anybody, but were vacant, therefore, for safety purposes the door leading to first floor was kept locked by the Bank.
7. Pradeep Kumar Hajari (D.W. 1), Branch Manager of Bank of Maharashtra, in his statement, stated that except a room in first floor where some broken furniture has been kept rest of the area is completely vacant. They have never occupied rest of the portion, only that room which has been let to them is in their possession. Appellant off and on for keeping the first floor clean visit the first floor by taking key which he himself lodged with the respondent and taking the key, he get the first floor cleaned. The room let out to the Bank in first floor has no doors, therefore, the appellant himself has asked the Bank to keep locked the stair door and as per the directions of the appellant the lock has been applied in stair door. They never objected the appellant in occupying the remaining portion. Though the witness has been cross-examined at length, but nothing substantial has been elicited in his cross-examination so as to disbelieve him. From his evidence, principle of preponderance probability and from the evidence adduced by appellant, it is as clear as crystal that appellant himself is responsible for not occupying the vacant three blocks of first floor; therefore, he is not entitled for any compensation for the respondent for putting the lock in stair door.
8. Article 52 of the Limitation Act, 1963 prescribed three years limitation for recovery of arrears of rent from the date when the arrears become due, therefore, learned Lower Court has rightly disallowed the arrears Claimed by the appellant, which was barred by time. Monthly rent at a enhanced rate has been granted by the Lower Court, therefore, appellant is not entitled for any damages.
9. Bhikamlal Devangan (P.W. 1), in his statement deposed that he has six sons. He is in need of suit accommodation for residential and commercial purpose of his sons. His sons Pavan @ Chandrashekhar and Santosh are willing to start business of electricity and Jitendra and Mahendra are interested in doing the business of hardware. He has sufficient capital and has kept more than Rs. 2,00,000/- in the form of fixed deposits with Banks. He has an old residential house, but that is not sufficient for all the sons. Presently three sons are compelled to sleep in verandah. Jitendra Kumar Devangan (P.W. 2), one of the sons of Bhikamlal Devangan, in his statement, stated that all the brothers are willing to occupy the first floor of the suit house for their residential purpose, presently all the brothers are un-married and the house where they are living is not sufficient. All the brothers take sleep in verandah. He wish to open his office in a portion of the suit house in ground floor. He is Advocate by profession. Pawan Kumar Devangan (P.W. 5), in his statement, deposed that he is inclined to open electricity shop in the suit premise and his brothers are willing to open hardware shop and they want to utilize the first floor for residential purposes.
10. The statement of all these witnesses does not suffer from any infirmity. To rebut the evidence adduced by appellant Pradeep Kumar Hajari (D.W. 1) alone has been examined by the respondent. He in his statement stated that appellant never asked him that he required the suit accommodation for business of his sons. Appellant always asked him for enhancement of rent, even in letter (Exh. P-3) he did not mention that suit accommodation is required for business of his sons. It appears that the witness did not read the Exh. P-3. In Exh. P-3 appellant in specific term stated as under:
^^vykok esjs iq= ckfyx gks x, gSa vkSj muds O;olk; ,oa vkokl ds fy, eq>s Hkou dh vko';drk gS vkSj vkius fuosnu gS fd bl i= ds ikus ds 30 fnu ds i'pkr~ fdjk;snkjh dk tks ekg lekIr gksrk gS mlds var ls vkidh fdjk;knkjh lekIr dh tkrh gS vkSj rnuqlkj vki izFke ,oa Hkw&ry dk dCtk eq>s lkSai nsa vkSj cdk;k jkf'k Hkh vnk dj nsa A** The witness neither stated that the sons of the appellant did not intend to open business in their suit accommodation nor disclosed that any other suitable residential and commercial building is available with appellant in his possession; therefore, his statement was not sufficient to rebut the evidence adduced by appellant.
11. Learned Lower Court on a very flimsy ground disallowed the bonafide need of appellant by stating that appellant has to spent on each marriage Rs. 30,000/- to Rs. 40,000/- and, therefore, thereafter he will be empty, appellant also did not institute any suit for recovery of one room, which is in possession of Ramsharan Gupta. It is no ones case that appellant will require to spend Rs. 30,000/- to Rs. 40,000/- towards marriage of his sons, out of the sum kept in fixed deposit for business of his sons, therefore, on such a flimsy ground Claim on bonafide requirement cannot be dispelled so far as nonfiling of suit for recovery of room in possession of Ramsharan Gupta is concerned, that does not disentitle the appellant for Claiming another sufficient reasonable accommodation for commercial use of his sons. From the evidence on record it was proved that appellant required the ground floor of suit premise bonafide for business of his sons and learned Lower Court erroneously disallowed his Claim.
12. No other contentions have been raised by any of the parties during the course of arguments.
13. In the result, the appeal partly succeeds. It is further decreed that:
In addition to the decree already passed by the Lower Court in favour of appellant, respondent shall deliver vacant possession of the ground floor to appellant after two months subject to payment of Rs. 80,580/- (Rupees Eighty Thousand Five Hundred Eighty Only)(Rs. 3357 : 50 x 24) i.e., double the annual rent of the accommodation required to be paid in accordance with Section 12(6) of the Chhattisgarh Accommodation Control Act, 1961 by the appellant to respondent.
14. Proportionate costs of the appellant shall be borne by the respondent.