Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.98 of 2011 ====================================================== 1. Onkar Prasad. 2. Deena Nath Shankar .... .... Petitioners 1. Prakash Chand Jain 2. Amit Kumar Jain Versus .... .... opposite parties ====================================================== Appearance: For the Petitioners : Mr. Satyabir Bharti For the opposite parties: Mr. Devendra Prasad Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH CAV ORDER 11. 11-9-2013 This revision petition is directed against the judgment and decree dated 25.2.2011 passed by Sri K.P.Rana, Civil Judge (Junior Division) Nawadah in Title (Eviction) Suit No. 6 of 2006 whereby he has decreed the suit in favour of plaintiffs-opposite parties and directed for delivery of vacant and peaceful possession of the suit premises to the plaintiffs-opposite parties. Revision is maintainable for its consideration only when same is filed within a period of limitation. In this case revision is filed beyond the period of limitation but for the same a petition is filed vide I.A.No. 3974 of 2011 for condoning the delay. The revision petition is filed against the judgment and decree dated 25.2.2011. Certified copy was applied and same was made
Legal Reasoning
Patna High Court C.R. No.98 of 2011 2 available to petitioners on 15.3.2011 and 6.4.2011. It is said that petitioners were of the view that period of limitation is calculated from the delivery of certified copy of the decree. Any how after obtaining certified copy, petitioners made arrangement to collect entire records of the case and thereafter approached their counsel at Patna who also took some time to go through the case records and draft the instant revision. During such period, petitioners also suffered mild viral flu. Any how application could be ready for filing on 20.5.2011, only after its filing the same, the stamp reporter pointed out some defects to remove and return the revision application for the same. Accordingly, revision application was again filed after removal of the defects. Thus, I find the delay has sufficiently been explained. Accordingly, the same is condoned and revision application is admitted for hearing. It is made clear that this revision application is listed under the heading for admission but counsel for the parties argued on merit for which they requested also. Eviction is sought on two grounds. First, expiry of fixed term tenancy and second, personal necessity as premises in question was required for running cloth business by plaintiff no.2 son of plaintiff Patna High Court C.R. No.98 of 2011 3 no.1. Plaintiff no.1 is the landlord of the premises in question. Plaintiffs‟ case, in brief, is that plaintiffs were owner of the suit premises that is shop measuring 5` east to west and 15` north to south situated in main road (Hospital Road). Same fell in share of plaintiffs through amicable partition. Thereafter suit premises was let out in favour of defendant no.1 Onkar Prasad as fixed term tenancy commencing from 1st day of August, 1987 and ending on 31st July, 2005 at monthly rental of Rs. 250/- . It is further stated that Rs. 21,600/- was paid by defendants as advance with condition that a sum of Rs. 100/- per month would be adjusted towards rent and rest Rs. 150/- was to be paid in cash towards monthly rent. It is said that memorandum (Yaddasht) to the above effect was executed on 16.10.1997 by plaintiff no.1 and defendant no.1. It is further said that after expiry of the term of tenancy, on request also defendants did not vacate and hand over possession of the suit premises in favour of plaintiffs. Further case of the plaintiffs is that plaintiff no.2 Amit Kumar Jain youngest son of plaintiff no.1 grown up major and was in desire of separate business. Legal notice to the above effect was sent on expiry of the terms of lease but purposely same was not received by defendants. It is specified that further plaintiffs went to the shop on 18.12.2005 and on Patna High Court C.R. No.98 of 2011 4 2.1.2006 to repeat his request for vacating the suit premises but same was not heard and defendant no.1 did not vacate the shop (premises). Hence, the suit. After appearance on leave of the court, defendants filed their written statement. Their defence includes legal points also including suit is said barred by limitation as well provisions for Specific Relief Act, suit is said suffered with defect of mis-joinder of defendant no.2 as his not being tenant of plaintiff no.1. Suit `premises was let out for 18 years at monthly rental of Rs. 250/- is admitted to the defendants. Further advance of Rs. 21,600/- with an adjustment @ Rs. 100/- per month and payment of rest in cash also. Only deed is said a lease deed not memorandum (yaddasht). Further assertion that before expiry of the lease period of 18 years, negotiation was in between the plaintiff no.1 and defendant no.1 on 20.7.2005 in which it was agreed by plaintiff no.1 and defendant no.1 to extend the period of lease for further 15 years commencing from 1.8.2005 to 31.7.2020 and payment of Rs. One lac by defendant no.1 to plaintiff no.1 and remaining of monthly rent Rs. 250/-. It was further agreed by them that registered lease deed would be executed, so the tenancy renewed though registered lease deed was not executed later. It is specific case of the defendants that after August, 2005 Patna High Court C.R. No.98 of 2011 5 defendant no.1 went to plaintiff no.1 on 4.9.2005 and tendered monthly rent of Rs. 250/- but he refused to receive the same for some ulterior motive rather plaintiff no.1 demanded a sum of Rs. One lac more in addition to earlier payment of Rs. One lac. Some foul play was noticed by defendants, finding the only option defendant no.1 tendered monthly rent through money order for the month August, 2005 but was refused. It is further said that since then defendant no.1 is regularly sending monthly rent to plaintiff no.1 through money order which are being refused by plaintiffs. On the point of personal necessity, it is said that they (plaintiffs) have no personal necessity at all. For plaintiff no.1 it is said that he is aged about 70 years, unable to carry on his cloth business known as „M/s Shreeman Shreemati‟ and in the said business both sons of plaintiff no.1 including Amit Kumar Jain are engaged that is further specified that one of the sons manages outside affairs of business and the other son manages the day to day sale of above cloth business. It is further specified that plaintiffs‟ business is very big and besides the two sons of plaintiff no.1, four servants are engaged for assisting two sons of plaintiff in the said business. So, it is said that plaintiff no.2 is not sitting idle rather he is heavily engaged in the cloth shop of „Shreeman Shreemati‟. Further it is said that suit premises being 5` x 15` is not Patna High Court C.R. No.98 of 2011 6 suitable for cloth business. Defendants have denied plaintiffs‟ repeated request to vacate the suit premises. On the point of notice, it is said that postal peon never met defendant no.1. So, no question was arising about refusal of receiving the same. After concluding the trial, the same is ended in decreeing the suit in favour of plaintiffs, legality, correctness and proprietary of which has been questioned through filing this revision. Following points (legal) are raised here: i) ii) that tenancy was not fixed term tenancy bonafide requirement of the shop including partial eviction The trial court on these points have framed separate issues namely nos. 5 and 6. They run as follows: 5) Is the defendants bound to vacate the suit premises after expiration of the period of lease on 13.7.2005 or not? 6) Have the plaintiffs got personal necessity of the suit premises or not? Section 11 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 provides the ground on which eviction can be ordered. Sub-section 1 clause (c) of Section 11 of the Act provides for Patna High Court C.R. No.98 of 2011 7 eviction on the ground of personal necessity and (1) (e) of the Act provides for eviction on expiry of the period of tenancy. Once Court comes to the conclusion that building in question is reasonable and in good faith requirement by the landlord, something more is cast upon the Court to consider that is substantial satisfaction by evicting part of the building. Section 11(1) (e) of the said Act is clear that tenancy if is fixed term tenancy then the eviction can be ordered on expiry of the period of tenancy. One thing on this point is raised in this Court that there was no registered deed for creation of fixed term tenancy which is mandatory. Section 107 of the Transfer of Property Act is there to state that a lease of immovable property from year to year or for any term exceeding one year can be made by registered instrument only but contrary to it averment in plaint on this point is admitted to defendant also. Averment of creation of fixed term tenancy starting from 1st August, 1987 to be expired on 31st July, 2005 is there in paragraphs 2 and 3 of the plaint. This paragraph is replied in paragraph 7 of the written statement that the allegations made in paragraphs 1 to 3 of the plaint are not denied means admitted. Tenancy was fixed term tenancy or not can be discussed later if Patna High Court C.R. No.98 of 2011 8 needed that is so observed as if eviction is possible on any of the grounds taken by the plaintiffs there is no need to go through the all. Personal necessity is averred in paragraph 5 and elsewhere also in the plaint that after growing major of plaintiff no.2 son of plaintiff no.1 there is requirement of the shop in question for running a cloth shop for him exclusively. Whenever personal requirement is decided by the Court, duty is cast on it to see if that is fulfilled by partial eviction but in this case that does not arise because of the reason that admitted length and width of the shop in question is shown 15` x 5`. In paragraph 18 of the written statement, defendants state that said requirement of plaintiffs to run cloth business by plaintiff no.2 may not be fulfilled by the shop (premises) in question as its area is very small being only 5` x 15` not suitable for running any type of cloth business. This much goes to show that more area is required. So no question arises about partial eviction, rightly has been ignored by the trial court though appreciated if some observation was made on this point. Requirement to run business of cloth by plaintiff no.2 is doubted on the ground that plaintiff no.1 runs business of cloth, more specifically it is averred in paragraph 15 of the w.s. that now plaintiff no.1 has turned old of 70 years, a big business is there known as “M/s Shreeman and Shreemati” and both sons are engaged in the business, Patna High Court C.R. No.98 of 2011 9 apart from them, four servants also are there for their assistance. Admittedly business was started by plaintiff no.1 and then only any of the sons came to assist. Both of the sons will be engaged in the same business never can be justified. To have a joint or separate business is the choice of family members. They may not be asked to remain joint in business. This aspect has been considered by their Lordships in A.I.R 2003 Supreme Court 532. As observed above, there is no further need to discuss if the tenancy was month to month or fixed term tenancy. Trial Court is elaborate on the discussed point without committing any mistake in its judgment and decree dated 25.2.2011 passed in Title (Eviction) Suit No. 6 of 2006, so the conclusion reached by the trial court needs no interference. This quashing application is accordingly, dismissed. A.I./N.A.F.R. (Mandhata Singh, J.)