HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.531 of 2005 =========================================================== Ram Chandra Agrawal, Son of Late Brij Lal Agrawal, Resident of Mohalla-Sarai, P.S.-Kotwali, in the District of Bhagalpur. ---------Petitioner-Defendant. Versus 1. Usman. 2. Nasar. Both Sons of Md Firoj Bakht. 3. Sweaty. 4. Baby. Both Daughter of Md. Firoj Bakht, all Resident of Mohalla- Tatarpur, Police Station-Tatarpur, District- Bhagalpur- Plaintiffs-Opposite Parties. =========================================================== Appearance : For the Petitioner/s : Mr. Rai Shivaji Nath, Sr. Adv. Mr Gopal Prasad Roy, Adv. For the Respondent/s : Mr. Khalid Ahsan, Adv. Mr. Anil Singh, Adv. Mr. Md.Firoz Bakht, Adv. Mr. Abdul Aziz, Adv. Mr. Deepak Kumar Singh, Adv. Mr. Aruna Tripathi, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 11-09-2013 The defendant-tenant is the petitioner in this revision application against the judgment and order of eviction dated 15.01.2005 passed by Munsif 1st Bhagalpur in Title Eviction No.32/94. 2. The plaintiffs-opposite parties filed the suit for eviction of the defendant from the suit premises which is a shop, described in detail in Schedule A of the plaint, on the ground of personal necessity alone. The suit was filed by altogether four plaintiffs out of which the plaintiff no.1 alone was major and the plaintiff nos.2, 3 and 4 were Patna High Court C.R. No.531 of 2005 dt.11-09-2013 2 shown as minor plaintiffs. All the plaintiffs were described as sons and daughters of Md. Firoj Bakht who had also been shown as guardian of the minor plaintiff nos. 2, 3 and 4. The plaintiffs have claimed themselves to be the owner of the suit premises, which is Holding No.12 and also of Holding Nos. 17, 18 and 4 and have stated
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that the defendant is the tenant of these holdings on monthly rent and has been paying rent to the plaintiffs. It is the case of the plaintiffs that their father is a junior lawyer practising in the local court and his income from legal profession is not sufficient to maintain the plaintiffs and other members of the family due to which the plaintiffs have been facing financial problems in meeting the expenses of their education, necessities, marriage and comfortable living. It has been further stated that in view of these facts and the needs the father of the plaintiffs has no other alternative but to get the suit premises vacated for the purpose of starting a business therein as it has been decided that one or two plaintiffs will start a business in the suit premises, which is Holding No.12. It has also been pleaded that the plaintiff no.1 is a student of Engineering College and the plaintiff no.3 is preparing for medical entrance test whereas the plaintiff nos.2 and 4 are college students. It has also been stated that the plaintiffs intend to start a business of Bhagalpur Handloom Products and as such they require the suit premises reasonably and in good faith. The plaintiffs Patna High Court C.R. No.531 of 2005 dt.11-09-2013 3 have also stated that they are owners of another Holding No.35 B which is part of Holding No.35, which consists of their residential house as well as some shops in occupation of the tenants therein but have further stated that the same is not suitable to start a business of the plaintiffs’ choice. 3. The defendant after notice obtained the leave to contest the suit and thereafter filed his written statement denying the claim of the plaintiffs. The defendant in paragraphs 6 and 7 of his written statement has admitted the relationship of landlord and tenant between him and the plaintiffs but he has stated that the transfer of ownership in favour of the plaintiffs has been created with a view to put undue pressure on the defendant to enhance the monthly rent. It has been also stated that the rent has been enhanced since 1981 illegally and unlawfully under threat of eviction. It has been further pleaded that out of 4 holdings in occupation of the defendant only Holding No.12 is a shop room whereas another one is used as godown and remaining two holdings are platform and pinda. The defendant has asserted that the plaintiffs have sufficient income from rent from their tenants in other holdings and their father has also good practice in the legal profession. It has been further asserted that the plaintiffs are also owners of a big Holding No.35 which is situated in the main market in Mohalla-Tatarpur and consists of 35-40 shops out of which 28-30 Patna High Court C.R. No.531 of 2005 dt.11-09-2013 4 shops have been let out on rent and the remaining shops are lying vacant. It has also been stated that in the first floor of the said holding there is a big lodge for students generating sufficient income by way of rent from the students occupying the same. The defendant has categorically denied the need of plaintiff to be bona fide and has assailed the same to be unlawful, illegal and mere pretence and whim of the plaintiff’s father. It has been claimed by the defendant that the plaintiffs have made out the case for personal requirement only to evict the defendant when he refused to accede to the enhancement of rent according to the demand and choice of the plaintiffs’ father. It has also been alleged that the father of the plaintiff has entered into an agreement to let out the suit premises to Vijay Kumar Thakur on the payment of hefty amount by way of ‘Salami’ and on higher rent. The defendant has pleaded that he has got no shop room of his own, wherein he can carry on his business and his residential house in Mohalla-Sarai is located in a purely residential locality and is far off from the main town making it inappropriate for his business. The defendant has reiterated that the suit has been filed under pretence and whim of the plaintiff’s father in order to put pressure on the defendant to surrender to his desire for enhancement of rent and it has been pointed out that in the year 1983 the attempt was made by the plaintiffs to get the four holdings under the tenancy of the defendant Patna High Court C.R. No.531 of 2005 dt.11-09-2013 5 vacated and thereafter in the year 1989 another attempt was made to evict the defendant on pretext. 4. In view of the rival pleadings of the parties the trial court framed altogether five issues out of which the issue no.3 was the material issue as follows:- Whether the plaintiffs‟ claim one holding out of four holdings and whether they require the suit premises for their personal use and occupation reasonably and in good faith therein and further whether the need of the plaintiffs may be satisfied by partial eviction? 5. After hearing the parties the trial court decided the issue no.3 in favour of the plaintiffs and has held that the claim of the plaintiff is reasonable, bona fide and in good faith and their need cannot be satisfied by partial eviction. 6. Criticizing the impugned judgment and order, Mr Rai Shivaji Nath, the learned senior counsel appearing for the defendant– petitioner has submitted that the finding with regard to bona fide personal necessity of the plaintiffs is perverse and it is a case of total non-application of mind by the court to the evidence on record. It has been urged that the learned court below has simply catalogued the evidence of the parties and thereafter jumped to the conclusion without considering and scrutinizing the evidence. The learned senior counsel has canvassed that the Bihar Building (Lease, Rent & Patna High Court C.R. No.531 of 2005 dt.11-09-2013 6 Eviction) Control Act, 1982 is a beneficial piece of legislation for protection of the need of the tenants, and therefore, the ground of eviction as raised by the landlord is to be objectively determined on the basis of the evidence of the parties. It has been proponed that a bare perusal of the crucial finding by the learned court below in the impugned judgment would reflect that it is superficial in nature and is not based on the conclusions derived after discussion of the evidence, and in that sense the said finding falls in the category of ‘non- speaking order’. It has been further submitted that the plaintiffs have accepted that they have got another holding bearing Holding No.35 in Mohalla-Tatarpur, and the witnesses of the plaintiffs have also accepted in their deposition that the said holding consists of a number
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of shops and also a lodge. Learned counsel has also elaborately placed the depositions of P.W.1, 4, 6, 7, 11 and 12 as well as D.W.5 and 7 to bolster his submission. It has been argued that the aforesaid evidence and other evidence on record clearly demonstrate that the plaintiffs’ family have got sufficient income and the story of need of for the suit premises to start the business by the plaintiffs to augment their income is merely a pretence. The learned senior counsel has also placed Exts. B and B/2 in order to support his contention that in the year 1983 and thereafter in 1989 the plaintiffs made attempts to get the suit premises vacated on the self-same ground of establishing their own business, Patna High Court C.R. No.531 of 2005 dt.11-09-2013 7 and succeeded in enhancing the rent. It has thus been submitted that if the learned court below would have analyzed the evidence, the claim of bona fide personal requirement of the plaintiff would have stood belied. Lastly the learned senior counsel has submitted that the defendant has been a very old tenant in the suit premises from the year 1959 and has established his shop in the suit premises with much labour, dedication and investment but during the pendency of this revision application, the plaintiffs have filed another Title Eviction Suit No.38/10 seeking his eviction from another Holding No. 18, and in order to buy peace which is conducive for running a business, the defendant is ready to vacate the remaining three holdings i.e. Holding Nos. 4,17 and 18. 7. In reply Mr Firoz Bakht, the learned counsel appearing for the opposite parties, while supporting the impugned judgment has urged that the plaintiffs have succeeded in establishing their bona fide requirement for the suit premises by leading cogent evidence, and therefore the learned court below has not committed any error in law in granting the order of eviction as prayed for. It has been argued that the plaintiffs as landlords have the freedom of choice of the premises for the purpose of eviction out of their several tenanted premises and it is not for the defendant tenant to dictate which of the premises would be suitable to the plaintiffs. It has also been submitted that the Patna High Court C.R. No.531 of 2005 dt.11-09-2013 8 bona fide need of the plaintiffs is also admitted by the defendants’ witnesses including the defendant and his son and in that view of the matter also the case of the bona fide need of the plaintiffs is established. It has been pointed out that the learned court below has taken into notice the entire evidence on record and thereafter has passed the impugned judgment and order. The learned counsel has further pointed out that the notes of argument has been filed on behalf of the plaintiff-opposite parties in this revision application dealing with the entire facts and evidence and has placed the notes of argument as well as the evidence in detail during the course of his submissions. The learned counsel has finally submitted that the finding with regard to the bona fide personal necessity of the plaintiffs is based on the admission of the defendant and his witnesses, and therefore, there is no scope for interference in the revisional jurisdiction. 8. The relationship of landlord and tenant in between the plaintiffs and the defendant is admitted. It is also the admitted fact that the defendant is occupying the suit premises as tenant from 1959. The discord between the parties is the bona fide personal necessity of the plaintiffs of the suit premises to establish their own business. It is the case of the plaintiffs that they are in financial distress and have decided to establish the business of Bhagalpur Handloom Products in Patna High Court C.R. No.531 of 2005 dt.11-09-2013 9 the suit premises which is most appropriate for the said business. Denying the aforesaid claim of the plaintiffs, the defendants have asserted that the plaintiff’s’ claim based on financial need is only a pretence as the plaintiffs have got a large number of shops as well as a lodge from which they have substantial income by way of rent. It has been further pleaded that the suit has been filed out of the whim of the father of the plaintiffs and in fact there is no genuine, bona fide and reasonable requirement of the plaintiffs for the suit premises. 9. Besides adducing documentary evidence, a large number of witnesses have been examined by both the sides in support of their cases. From the impugned judgment also it appears that the learned court below has enlisted the oral evidence and documentary evidence of the parties in paragraph 5 of the judgment. However, while determining the crucial issue of bona fide personal need of the suit premises by the plaintiff there is absolutely no discussion of the evidence of the parties. The finding by the learned court below does not disclose the basis which has impelled the learned court below to reach to the said conclusion. It could be apt here to take into notice the manner in which the finding has been recorded. “…Admittedly the plaintiffs are unemployed. The marriage of daughters, which are also plaintiffs in this suit cannot be avoided. Financial problem in maintaining family comprised of eleven members and also to meet expenditure of several Patna High Court C.R. No.531 of 2005 dt.11-09-2013 10 wards in their higher education is apparent in the society. The plaintiffs have examined a large number of witnesses on fact in order to establish their prima facie title, as to their studies and unemployment, suitability of the suit premises for the proposed business. Plethora of documents filed by the plaintiffs also speak the same thing. The statement of defendant in this respect is unfounded and has not been fortified by cogent evidence. Right to run business, the „guaranteed right‟ of the plaintiffs is enshrined under Chapter III of the Indian Constitution as a fundamental right and no one can be impaired of this right on mere assertions. The plaintiffs have taken „hardihood‟ to establish their case for their personal necessity by adducing cogent evidence. There is nothing on the record to disbelieve the same. D.W. 7 at 40 in his evidence has stated like this “ Mudaiyan Sampatiwala Byaktik Hai.” It simply indicates that there is no any difficulty to raise fund for the business. In this way, the claim of the plaintiffs is reasonable, bona fide and in good faith…” 10. The aforequoted passage is the only part in the entire judgment where the learned court below has taken up the issue of existence of bona fide personal necessity of the plaintiffs and has recorded the finding. It becomes obvious that the learned court below has not taken pains to scrutinize and consider the evidence adduced by the parties and has recorded the findings merely on the basis of Patna High Court C.R. No.531 of 2005 dt.11-09-2013 11 general perception and assumption. 11. In the case of Mattulal Vs Radhe Lal AIR 1974 SC 1596 their lordships have observed as follows:- “… The mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bona fide. The word “required” signifies that mere desire on the part of the landlord is not enough but there should be an element of need, and the landlord must show-the burden being upon him-that he genuinely requires the non- residential accommodation for the purpose of starting or continuing his own business...” 12. Tested on the anvil of the aforesaid principle it is more than apparent that the learned court below has failed to objectively determine the crucial issue relating to the bona fide personal need of the plaintiffs and has decided the said issue on the basis of mere Patna High Court C.R. No.531 of 2005 dt.11-09-2013 12 assertion of the plaintiffs and also in the most subjective manner. The learned court below has also overlooked the purpose of enactment of the Bihar Buildings (Lease, Rent & Eviction) Control Act and has ignored that it is a beneficial piece of legislation for the protection of the weaker party in the bargain for tenancy. It would be fruitful here to reminisce a passage from the Apex Court decision in the case of Amajeet Singh Vs Khatoon Quamarain (1986)4 SCC 736 as follows:- “… The Rent Restriction Acts deal with the problem of rack renting and shortage of accommodation. It is in consonance with the recognition of the right of both the landlord and the tenant that a harmony is sought to be struck whereby the bona fide requirements of the landlords and the tenants in the expanding explosion of need and population and shortage of accommodation are sought to be harmonized and the conditions imposed to evict a tenant are that the landlord must have bona fide need…” 13. Similar view has been reiterated in another decision by the Apex Court in the case of Sushila Devi Vs Avinash Chandra Jain AIR 1987 SC 1150 where their lordships, while dealing with the provisions of Delhi Rent Control Act, have observed as follows:- “… The provision contained in Section 14(1)(e) is meant to subserve a public interest and to strike a just Patna High Court C.R. No.531 of 2005 dt.11-09-2013 13 balance between the competing needs of the landlord and tenant. It is axiomatic that when a landlord applies for eviction of a tenant under Section 14(1) (e) of the Act, there is a duty cast on the court to consider the question on merits on the basis of the evidence adduced by the parties. Again, there has to be in such cases an objective determination of the claim of the landlord…” 14. It is evincible from the impugned judgment that the ‘objectivity’, emphasized by their lordships while determining the issue of bona fide personal necessity of the landlord is clearly missing. It is axiomatic that mere reference of the evidence of the parties in the judgment or order is not sufficient rather it must be reflected that the finding has been arrived after active consideration of the evidence and materials on record in objective manner. The impugned judgment fails on this test. 15. The learned counsel for the plaintiff-opposite parties has strenuously submitted that the impugned judgment and order was passed in view of the admissions by the defendant of the bona fide personal necessity of the plaintiff. The depositions of the witnesses have also been placed in detail to impress that there has been substantial admission of the claim of the plaintiffs. However, it could not be pointed out from the impugned judgment that the learned court below has taken into notice the particular statements made by the Patna High Court C.R. No.531 of 2005 dt.11-09-2013 14 witnesses including the defendant and his son alongwith other evidence and has accepted the same to be their admissions; and in fact the entire effort of the learned counsel for the opposite party apparently was to supplement the impugned judgment with the scrutiny of the evidence which was lacking there. It is true that the jurisdiction of the revisional court under Section 14(8) of the Bihar Building (Lease, Rent & Eviction) Control Act is wider than its jurisdiction under Section 115 C.P.C. but the jurisdiction to appreciate evidence is limited for the purpose of finding out that the impugned order for eviction is according to law. Such jurisdiction cannot be stretched to make the revisional court a ‘second court of first appeal’, as observed by their Lordships in the case of Rai Chand Jain Vs Miss Chandrakanta Khosla 1991(1)SCC 422, and proceed to record findings after appreciation of evidence. 16. In view of the aforesaid facts, circumstances and discussions, the conclusion becomes inevitable that the finding by the learned court below on the crucial issue of bona fide personal necessity of the plaintiffs is not based on the evaluation of the evidence of the parties alongwith the pleaded facts and as such the same is perverse and cannot be sustained. This revision application is, therefore, allowed, the impugned judgment and order is set aside and the matter is remitted back to the trial court to consider the merits of Patna High Court C.R. No.531 of 2005 dt.11-09-2013 15 the entire suit afresh on the basis of the evidence on record and decide the same in accordance with law. As the suit has been filed in the year 1994, the learned court below shall permit the parties to adduce additional evidence, if they so desire, to bring on record the subsequent relevant events, for the purpose of arriving at a just decision on the issues in the suit. The learned court below is further directed to take up the matter expeditiously and dispose of the same as early as possible but not later than six months from the date of the receipt/production of a copy of this order. The parties are also directed to cooperate in the disposal of the suit, at the earliest. Nitesh/- (V. Nath, J)