Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.1901 of 2009 ====================================================== Shailesh Kumar Singh @ Shailesh Kumar, S/o late Mathura Sharma, resident of Mohalla- Adalat Ganj, Shanti Ashram, Patna-Gaya Road, P.O.- G.P.O., P.S.- Kotwali, District- Patna. .... Defendant no.2 .... Petitioner/s Versus 1. Swami Dineshanand Baba @ Dinesh Mishra, S/o late Shanti Baba, Mahanth of Shanti Ashram, Mohalla- Adalatganj, Patna-Gaya Road, P.O.- G.P.O., P.S.- Kotwali, District- Patna. 2. Shanti Ashram situated at Mohalla- Adalatganj, Patna-Gaya Road, P.O.- G.P.O., P.S.- Kotwali, District- Patna registered under Hindu Religious Trust bearing Registration No.01676 through its duly appointed Mahanth Swami Dineshaanand @ Dinesh Mishra. ……..Plaintiffs….Opposite Parties. 3. Manoj Kumar Sharma, S/o Shri Mohan Lal Sharma, resident of Mohalla- Adalatganj, Shanti Ashram, Patna-Gaya Road, P.O.- G.P.O., P.S.- Kotwali, District- Patna. .... Defendant no.1 .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Chhote Lal Narain Singh For the Opposite Party/s : Mr. Uma Shankar Prasad, Sr. Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 11 18-04-2013 Heard learned counsel for the parties. With the consent of the parties the matter has been taken up for final disposal at the stage of admission. This civil revision application under section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’) is directed against the judgment and order dated 25.8.2009 passed by the learned Munsif-III, Patna in Eviction Suit No.11 of 2001, whereby the learned trial court while decreeing the suit ex-parte against
Legal Reasoning
defendant nos.1 and 3 and on contest against defendant no.2 has Patna High Court C.R. No.1901 of 2009 (11) dt.18-04-2013 2 directed the defendants to vacate the suit premises within sixty days from the date of the judgment and order, failing which the same would be carried out through the process of the court. The plaintiffs before the trial court is the public trust and the Sebait who were plaintiff nos.2 and 1 respectively. The suit property is a shop having a dimension of 14’x9’ being part and parcel of the plaintiffs’ Holding No.3A/1, Circle No. 242, Mohalla- Adalatganj, Patna-Gaya road, P.S. - Kotwali in the town and district of Patna. The suit in question was instituted raising a plea of bona-fide requirement and personal necessity. The defendants had been inducted in the shop in the year 1990 and have continued therein upon payment of rent. Whereas defendant no.1 left the suit premises in favour of defendant no.2 in July, 2000, the defendant no.2 who is the petitioner before this Court has continued thereafter. The plaintiffs being aggrieved by the act of the defendant no.2 in not making payment of rent since July, 2000 and on a plea of personal necessity requiring the shop in question for the purpose of sale of puja articles for the benefit of the worshipers, requested the defendant no.2 to vacate the suit and upon refusal the suit in question was filed. The learned court below upon completion of the pleadings framed issues and on the basis of the oral and documentary Patna High Court C.R. No.1901 of 2009 (11) dt.18-04-2013 3 evidence led by the parties has decreed the suit in favour of the plaintiffs and hence this civil revision application. The scope of interference in a judgment and order passed under the provisions of the Act by the High Court in revisional jurisdiction stands settled and though the judicial scrutiny of the judgment and order under challenge in such case is wider than as provided under section 115 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) but the same is not akin to an appeal arising from an original decree. The sole consideration by this Court while sitting in judicial review is whether or not the provisions of the Act and the procedure so provided, has been followed; whether the judgment and order is based on evidence or in absence of evidence and finally whether the judgment and order suffers from perversity.
Legal Reasoning
Mr. Chhote Lal Narain Singh, learned counsel has appeared for the defendant no.2 who is petitioner herein and the plaintiffs have been represented by Mr. Uma Shankar Prasad, learned senior counsel. The facts are in a very narrow compass and are not in dispute. It is also not in dispute that the defendant no.2 has since been evicted from the premises under the direction and order of the executing court on 2.1.2011. Mr. Singh, learned counsel appearing for the defendant no.2 while being critical of the judgment and order under challenge, has Patna High Court C.R. No.1901 of 2009 (11) dt.18-04-2013 4 raised the following issues: (a) He submits that the need and requirement as raised by the plaintiffs is not bona-fide and which fact is manifest from the circumstance that a shop near the suit shop is lying vacant since quite some time and even today. (b) He further submits that since after the defendant no.2 has vacated the suit premise on 2.1.2011 and a period of almost two and half years has lapsed, the suit shop is still lying vacant and the purpose for which the suit was instituted by the plaintiffs has not been fulfilled. He thus submits that this relevant circumstance is enough to prove that the plea was not bona-fide and that there was no personal necessity of the plaintiffs rather the suit was a pretext for eviction. He further submits that despite evidence being led by the defendant, the learned trial court has not considered any of the evidence. In support of his submission Mr. Singh relied upon a judgment of this Court reported in 1992(1) PLJR 336 (M/s Zenith Drop Forging Ltd. Vs. Mrs. Sudesh Lal), more particularly paragraph 47 and 54 for the proposition that the evidence has to be considered properly by the trial court. In support of his submission that the plea of bona-fide requirement is pretext of eviction as the shop has not yet been occupied by the plaintiffs, Mr. Singh has relied upon Patna High Court C.R. No.1901 of 2009 (11) dt.18-04-2013 5 another judgment of this Court reported in 1998(2) PLJR 357 (Ratanlal Baid vs. Sohanlal Saha), paragraph 13 to submit that such circumstance has been held by this Court of not satisfying a plea of bona-fide requirement. On the strength of the judicial pronouncements and the submissions aforementioned, Mr. Singh has submitted that the judgment and order under challenge is not legally sustainable and that the learned trial court has committed material irregularity while passing the judgment and decree. Mr. Singh has further questioned the Sebaitship of the plaintiff no.1 to maintain the suit as according to him, the plaintiff no.1 Dineshanand Baba @ Dinesh Mishra was never appointed as Sebait by the Bihar Board of Religious Trust. A plea was taken that the rent was being paid to Kashi Nath Baba until 2001. The arguments of the defendant-petitioner has been contested by Mr. Prasad, learned senior counsel appearing for the plaintiffs who has contested the argument of Mr. Singh that the suit shop is yet lying vacant. He submits that an enquiry can be made and which would demonstrate that the plaintiffs are running a shop of puja articles from the suit shop and which is not lying vacant. Mr. Prasad has gone on to submit that there is no shop vacant in the temple as argued by learned counsel for the defendant-petitioner. He further submits that although a plea Patna High Court C.R. No.1901 of 2009 (11) dt.18-04-2013 6 has been taken by the defendant that his evidence has not been considered but the fact is that the defendant never led any documentary evidence to support his contention and except oral evidence of witnesses in support of the fact that there are other shops lying vacant in the temple there is no other evidence on record. He submits that in fact the defendant himself has not chosen to depose that any shop was lying vacant in the temple and which is sufficient for the learned trial court to arrive at a finding as concluded in the judgment and decree. Mr. Prasad submitted that the defendant has contested the Sebaitship of plaintiff no.1 on the plea that he was paying rent to the sebait Kashi Nath Baba but no evidence to support this plea was advanced by the defendant during the course of trial. It was submitted that the moment the defendant had admitted that he was inducted into the tenancy by the father of the plaintiff no.1, namely, Shanti Baba, the plaintiff no.1 succeeding his father sebaitship by operation of law adorns the status of a landlord and the defendant cannot wriggle out this situation. Mr. Prasad in support of the judgment impugned submits that the learned trial court on appreciation of the documentary and oral evidence led by the parties has passed the judgment and decree in question and which neither suffers from any legal or judicial infirmity to warrant any interference. Mr. Patna High Court C.R. No.1901 of 2009 (11) dt.18-04-2013 7 Prasad has further argued that even the defendant-petitioner is settled in a shop adjacent to the temple and running his Kirana shop. I have heard learned counsel for the parties and have perused the materials on record. The suit was instituted with the plea of bonafide requirement and personal necessity of the plaintiffs for the shop for the purpose of sale of puja articles to the benefit of the worshipers visiting the temple. Even in absence of evidence the plea could not be more bonafide. Whether or not the plaintiffs have been utilizing the shop in question for the purpose for which the eviction had been sought would not fall for consideration before this Court in the revisional jurisdiction as there being a dispute on facts, the parties can take recourse to the remedy as provided under law by approaching the appropriate forum. Even otherwise this Court would not venture into disputed question of facts. This Court while exercising revisional jurisdiction is only to ensure whether the plea of bonafide requirement and in good faith, is as bonafide and whether the finding is based on the evidence available or suffers from perversity. As I have already held that the plea on the face of it was bonafide and it did not require the plaintiffs to prove the same. The issue whether or not there was any other shop available in which the defendant could have been Patna High Court C.R. No.1901 of 2009 (11) dt.18-04-2013 8 accommodated, has not been established by the defendant. It is not in dispute that neither any documentary evidence was led by the defendant in support of his contention that another shop lying vacant in the temple nor any such evidence was given by the defendant himself in the deposition. That the defendant no.1 did not choose to appear is another factor which draws in favour of the plaintiffs. The defendants cannot rely upon the oral evidence of other witnesses when he himself never deposed regarding any vacant shop available in the temple. The finding of the learned trial court that the area of shop is such that the partial eviction would not serve the purpose of either the tenant or the plaintiffs also calls for no interference. In view of the conclusion drawn by me, there is no reason for interference in the judgment and order impugned. This civil revision application is accordingly dismissed. Let the lower court records in Eviction Suit No.11 of 2001 be returned to the court concerned in a sealed cover. SKPathak/- (Jyoti Saran, J)