Anwar Alam v. Mostt.Meena Devi

I shall be going by the status of the parties as occurring at the stage of trial. This civil revision application after being filed was admitted for hearing under order dated 9.2.2009 and the interim order protecting the defendant from dispossession passed on 9.1.2007 was allowed to continue. The facts of the matter essential for disposal of this civil revision application is that the plaintiff is a widow who had purchased the suit premises along with four other shops through a registered sale-deed dated 6.9.2000 from the vendor Shankar Maharaj. The admitted position is that the defendant was a tenant under the erstwhile owner of the property. It is the case of the plaintiff that she is running a business in rented premises within the Samastipur Municipality and as there was apprehension that the said premise would be removed by the Municipality in an anti- encroachment drive, she had to make alternative arrangement and it is in this direction that the shops in question were purchased. Whereas the plaintiff is residing on the first floor of the premises, there are six shops on the ground floor which includes the two shops rented out to the defendant. Consequent upon the purchase of the premises in question, the plaintiff requested the defendant to vacate the shop for her own business use and upon refusal by the Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 3 defendant, the suit in question was filed in the year 2001. As already indicated above, the purchase of the property was through a registered sale-deed executed on 6.9.2000. The defendant appeared in the matter and after seeking leave of the court as mandated under section 14(4) of the Act, filed his written statement contesting the claim of the petitioner that she required the shops in question for her personal necessity. It was sought to be contended by the defendant that under an oral agreement a sum of Rs.2,60,000/- had been given to the plaintiff by way of advance and which was to be adjusted against the future rent payable for the premises. It is further the case of the defendant that the plaintiff was running her business in three shops bearing nos.29, 51 and 52 in New Market area of the township. Contesting the plea of bonafide requirement it was submitted that during the pendency of the suit two of the shops fell vacant and of which one of the shops was rented out to one Alok Kumar and shop no.2 was rented out to Irshad Alam. On the basis of the rival pleadings the learned trial court after framing the issues and upon consideration of the arguments advanced and the evidence led by the parties, decreed the suit in favour of the plaintiff and hence the present civil revision application. Mr. Pushkar Narain Shahi, learned senior counsel has Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 4 appeared for the defendant-petitioner and who has reiterated the stand taken by the defendant in the court below. It is submitted that following an advance of Rs.2,60,000/- given by the defendant to the plaintiff, an oral agreement was entered into between the parties for adjustment of the said amount towards the rental payable for the premises. In support of the contention of the defendant that two shops fell vacant during the pendency of the suit and which has since been let out to other persons Mr. Shahi relied upon the deposition of defendant witness no.2, namely, Manjoor Alam who has deposed that he vacated two shops in June, 2003 and of which one shop has been rented to Irshad Alam while the other is in the possession of the plaintiff. Mr. Shahi contended that whereas shop nos.1 to 3 are in the front portion of the building, the other three shops are in the rear portion. Relying upon the said circumstances it is contested that the plea of bonafide requirement of the plaintiff is not as bonafide as projected, rather it is a pretext to oust the defendant from the premises. It was sought to be canvassed that had the plaintiff’s requirement been as bonafide as sought to be projected, she would not have let out the two shops vacated by Manjoor Alam. It is further submitted that in absence of finding on the issue of partial eviction as mandated under the proviso to section 11(1) (c) of the Act, the judgment and order Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 5 impugned cannot be upheld. Learned counsel in support of his submission has relied upon a judgment of this Court reported in 2008(1) PLJR 213 (Shiv Dayal Taneja vs. Vimal Devi). The arguments of Mr. Shahi have been contested by Mr. Sidheshwari Prasad Singh, learned senior counsel appearing on behalf of the plaintiff-opposite party. While supporting the judgment and order impugned Mr. Singh submitted that that the plaintiff is a widow residing with her son on the first floor of the building in which the shops in question along with four other shops are situated on the ground floor. It is submitted that the plaintiff was earlier doing her business in a rented premises situated within the Samastipur Municipality but as she was having difficulty, hence she purchased the building in question for her residence as well as for shifting her business to the shops on the ground floor. Contesting the argument of Mr. Shahi regarding availability of shops for the satisfaction of the needs of the plaintiff, it was contended that the preference for a premise vests in the plaintiff and who can choose any of the premise available at her disposal and which choice cannot be questioned by the tenant. Reference was made to a judgment of this Court reported in 2004(1) PLJR 473 (Abhay Chandra Jha vs. Smt. Brijeshwari Devi @ Briji Devi). It is stated that apart from the fact that the issues raised by Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 6 the defendant is without substance, another relevant aspect is that the defendant is a defaulter and thus is not entitled to any relief. Reference was made to a judgment of the Supreme Court reported in 1986 PLJR 46 (S.C.) (Sadanand Dass vs. Md. Hussain & Anr). The said submission was, however, countered by Mr. Shahi by producing some certified copy of the challans to demonstrate that the defendant has continuously deposited rental in the court below. In so far as the issue of advance is concerned, Mr. Singh questioned the veracity of the document which has been marked Exhibit.-E to the suit and which was relied upon by the defendant to support his plea of advance given to the plaintiff. It was submitted by Mr. Singh that the said document is an act of forgery and neither bears a date nor contains a revenue stamp. It was further submitted that no statement in this direction had been made by the defendant in his written statement. He thus submits that the defendant cannot rely upon a Khista document in support of his contention regarding advance given to the plaintiff. On the issue of partial eviction it was submitted with reference to a judgment of this Court reported in 2005(3) PLJR 75 (Prahlad Rai Agrawal Burakia @ Prahlad Rai vs. Smt. Ram Pyari Devi) and 2005(3) PLJR 719 (Shri Vinod Kumar Gupta vs. Smt. Pushpa Devi) that if the defendant did not choose to raise this issue before the Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 7 trial court he cannot be permitted to raise the same at the revisional stage. With reference to the findings of the learned trial court present at page nos.11, 12 and 13 of the judgment it was submitted that Exhibit-E is a forged document and does not satisfy the pre- requisite of section 35 of the Stamp Act for enforcing any right or being admitted as evidence. In support of his submission Mr. Singh relied upon a judgment of the Supreme Court reported in AIR 1994 SC 853 (S.P. Chengalvaraya Naidu (dead) by L.Rs.) vs. Jagannath (dead) by L.Rs.). It was further argued by Mr. Singh that it is not a legislative intent of the Act that once a tenant is inducted he would continue for all times to come. He submits that even if the defendant was inducted as a tenant, no sooner the necessity arose for the plaintiff, she is within her right and jurisdiction to request his vacation from the premises. Questioning the conduct of the defendant Mr. Singh submitted that Exhibit-E by itself is manifest of the malafide conduct of the defendant who has resorted to forgery for establishing his claim. Referring to the deposition of the defendant in paragraphs 45, 47 and 75, it was submitted that the defendant cannot raise the issue of partial eviction before this Court. It was submitted that once a plea of bonafide requirement for the premises in question has been raised Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 8 by the plaintiff, he is not required to prove a partial eviction rather it is for the defendant to lead evidence and to demonstrate that the needs of the plaintiff can be satisfied by partial eviction and which has not been done in the present case. On the issue of payment of rent, which is being contested by Mr. Singh, it is submitted that the rent has to be paid in terms of the provisions of the Act and not by any other mode. For the said submission Mr. Singh relied upon a judgment of this Court reported in 1960 BLJR 687 (686) (Deo Karan Devshi Thacker vs. Daulat Ram J. Parkhani). Concluding his argument it was submitted that there being no legal infirmity in the order impugned nor there being any jurisdictional error the judgment and order under challenge requires no interference. I have heard learned counsel for the parties and have perused the materials on record including the deposition relied upon by the parties. As already indicated at the outset, shop nos. 1 and 6 situated on the ground floor of the buildings is the subject matter of the present proceedings. Whereas shop no.1 admeasures 10’x10’, the dimension of shop no.6 is 10’x71/2’. The defendant is using shop no.1 for his retail business while shop no.6 is being utilized by him as a godown. Of the issues framed by the trial court, the issue no.4 relatable to personal necessity and issue no.5 relatable to entitlement Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 9 of the plaintiff to the relief prayed, are relevant for the matter in contest. In so far as the issue of landlord-tenant relationship is concerned, although the defendant was a tenant under the erstwhile owner but consequent upon the purchase of the property in question by the plaintiff on 6.9.2000, the defendant came under the tenantship of the plaintiff, by operation of law. Even otherwise this relationship was never questioned before the trial court rather the defendant has admitted to the same when he has submitted that an advance was given by him to the plaintiff which was to be adjusted towards the future rent. Whether or not the said statement is correct and even assuming for a moment that the said statement is correct, whether the defendant can derive any benefit is a matter which would be considered by this Court hereinafter. There thus being no contest on the landlord-tenant relationship the issue sets at rest. The primary issue in the present case is whether or not the plea of the plaintiff for the shops in question is bonafide and in good faith. According to the plaintiff, she requires the shops in question for her own business and since the shop no.1 is situated in the front, it would be most suitable for her business interest. That the plaintiff is running her business in rented premises situated within the Samastipur Municipality has not been contested. If the running of the business by the plaintiff in a tenanted premises is an admitted Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 10 position then the requirement for the plaintiff for the shops in question cannot be more bonafide, considering her status as a widow and the proximity of the business from her residence. A mere available vacancy during the pendency of the suit, may be a possible argument available to the defendant to question the bonafides but if the reasons assigned by the plaintiff to claim the shops in question has a possible explanation attached to it, any vacancy occurring would not have an adverse impact on the plea. In fact, even according to the statement of the defendant at paragraphs 47 of his deposition, the shops are one behind the other and are not in a position as being canvassed by Mr. Shahi. A specific statement had been made by the defendant at paragraph 47 that the shop no.2 is situated behind the shop no.1 which is followed by shop no.3, followed by shop nos.4, 5 and 6. It is but obvious that shop no.1 situated in the front portion, if the plaintiff has expressed her necessity and preference for the said shop, the necessity cannot be doubted. That the plaintiff is running her business in a rented premise, there cannot be a more bonafide reason for her to shift her business within the premises purchased by her and the plea cannot be questioned even on grounds of availability of a vacant shop. Last but not the least is the argument advanced by Mr. Shahi regarding absence of finding on partial eviction and whether Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 11 in view of the proviso to section 11(1) (c) it would require a remand. In normal circumstance I would have drawn in favour of the submission of Mr. Shahi but considering the issue in the backdrop of uncontroverted evidence, what I find is that apart from the fact that no evidence was led by the defendant in this regard, his deposition made in paragraph 75 settles this issue also at rest. The defendant has very clearly stated that only one person can run his business in shop no.1. In view of the said admission, the argument of Mr. Shahi regarding absence of finding on partial eviction becomes academic and a remand on this issue would only be to complete a formality. I am thus of the firm opinion that in view of the admission of the defendant in paragraph 75, the judgment and order under challenge is not required to be interfered on this aspect also. In so far as the contention regarding advance is concerned, the plea is based on plain piece of paper having no authenticity nor any evidentiary value. Even otherwise it is now well settled that a tenant cannot seek any premium over an advance even if given to the landlord. This aspect has been discussed in detail in a recent judgment of this Court reported in 2012(2) PLJR 865 (Prem Chand Gupta vs. Raj Kumar). Thus even on the said ground the defendant cannot claim any premium. The position emanating from the discussion made Patna High Court C.R. No.2157 of 2006 dt.10-05-2013 12 hereinabove would lead to only one conclusion and which is that the defendant has failed to make out a case for interference with the judgment and order impugned. Apart from the fact that the judgment of the trial court has been passed taking note of the pleadings and the evidence led by the parties, the same neither suffers from any legal infirmity nor any jurisdictional error warranting interference. For the reasons aforesaid I am not persuaded to interfere with the judgment and order impugned. This civil revision application is accordingly dismissed. However, there shall be no order as to costs. Let the lower court records received in connection with Eviction Suit No.12 of 2001 be returned to the court concerned, in a sealed cover, forthwith. SKPathak/- (Jyoti Saran, J)