====================================================== Girish Ranjan Mishra @ Girish Chandra Mishra, S/o Late Raj Keshari Mishra, presently v. Laxmi Narayan Prasad, S/o Late
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.175 of 2012 ====================================================== Girish Ranjan Mishra @ Girish Chandra Mishra, S/o Late Raj Keshari Mishra, presently residing in Mohalla-Bank Colony Tilka Manjhi, P.S. Kotwali in the town and District-Bhagalpur .... .... Petitioner/s Versus Laxmi Narayan Prasad, S/o Late Shri Narayan Prasad, retired Assistant General Manager, State Bank of India, presently R/o Mohalla- Rajendra Nagar, A-8, State Bank Officers Complex, Patna .... .... Opposite Party/s ====================================================== Appearance: For the Petitioner/s : Mr. Shashi Shekhar Dwivedi, Sr. Adv. Mr. Ranjan Kumar Dubey, Adv. For the Respondent/s : Mr. J.S. Arora, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 08. 15-05-2013 This Civil Revision application under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the ‘Act’) is directed against the judgment and order dated 17.08.2012 passed by learned Munsif- III, Bhagalpur in Title Eviction Suit No. 19 of 1999, whereby learned trial court has been pleased to decree the suit in favour of the plaintiff with direction to the defendant to vacate the suit premises within a period of three months from the date of the judgment and order, failing which the same would be vacated through the process of the court. The defendant is the petitioner before this Court. With the consent of the parties this matter has been taken up for disposal at the stage of admission itself. Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 2 I shall be referring to the party position as it existed before
Legal Reasoning
the trial court for the sake of convenience. The suit relates to a residential house situated in the mohalla State Bank Colony, Tilka Manjhi, P.S. Kotwali in the town and district of Bhagalpur. The suit premises was constructed by the plaintiff after taking loan from the State Bank of India where he was serving as an officer and after construction thereof, the house was given on rent to the staff of the bank. The defendant was inducted as a tenant on the recommendation of a staff of the bank in the month of August, 1994 on a monthly rental of Rs. 1250/-. It is the case of the plaintiff that although the defendant at the time of his induction had agreed to vacate the house within two months of the retirement of the plaintiff but he failed to do so despite request being made. It is stated that the plaintiff retired on 31.7.1999 and had no house at Bhagalpur or elsewhere and thus after requesting the defendant to vacate the house and upon his failure to do so, led to the filing of the suit. The suit was filed on ground of bona fide requirement of the plaintiff for the house as he had retired from service. The defendant appeared in response to the summons and after seeking leave as mandated under the Act, filed his written statement contesting the claim of the petitioner on several grounds including Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 3 the ground that the plaintiff had other houses available at Bhagalpur and thus there was no personal necessity for the suit house nor the requirement was bona fide. On the basis of the rival pleadings and the evidence adduced by the parties the trial court after framing of the issues adjudicated thereupon and decreed the suit in favour of the plaintiff and hence this Civil Revision application.
Legal Reasoning
Mr. Shashi Shekhar Dwivedi, learned Senior Counsel has appeared for the defendant who is the petitioner before this Court while the plaintiff has been represented by Mr. Jashwir Singh Arora, Advocate. The sum and substance of the argument advanced by Mr. Dwivedi contesting the judgment and order in question is that the statement of the plaintiff as found in paragraph- 3 and 6 of the plaint regarding no other house at Bhagalpur is a misrepresentation inasmuch as the plaintiff has an ancestral house at Jogsar in the town of Bhagalpur itself and which is duly mutated in his name. He submitted that since the plea of personal necessity and bona fide requirement for the house was founded on a false statement and a misrepresentation of fact, the suit itself should have been dismissed on grounds of having approached the court with unclean hands. It was further submitted by Mr. Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 4 Dwivedi that not only the plaintiff made a false statement before the court rather even for securing the loan for the construction of the house in question, a similar incorrect statement had been made. It was thus submitted that a claim based upon a misrepresentation and suppression of material fact cannot be sustained. In support of his submission, Mr. Dwivedi relied upon the following judgments of the Supreme Court: (i) (ii) 1999(1) PLJR SC 39, paragraph 6 2007(8) SCC 49, paragraph 33 and 35 It was submitted by Mr. Dwivedi that the consistent view of the court has been that a litigant should approach the court with clean hands and should not endeavour to obtain a decree by deception as having been done in the present case. It was contended by Mr. Dwivedi that there is an ancestral house of the plaintiff existing in Bhagalpur and thus the claim of personal necessity and bona fide requirement was not correct nor the same was in good faith. Mr. Dwivedi referred to the evidence of the Plaintiff Witness-1 at paragraph-7 of his deposition to submit that the children of the plaintiff were residing outside. Referring to the deposition of P.W. 3 it was submitted that the witness has admitted to the ancestral house of the plaintiff at Jogsar and that the plaintiff is staying at Patna. With reference to the deposition Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 5 of the plaintiff himself who has deposed as P.W. 5 , it was submitted that the plaintiff has accepted to the existence of the ancestral house but has tried to wriggle out of the situation by submitting that he has surrendered his share in favour of his other brothers though there is no evidence in support of such deposition. It was submitted that as the name of the plaintiff appears in the mutation record of the ancestral house, he cannot resile from this fact situation and which also falsifies his statement regarding no other house existing in Bhagalpur. Mr. Dwivedi has also referred to the deposition of D.W. 2 and D.W. 3 to submit that the ancestral house was big enough to fulfil the requirement of the plaintiff. With reference to a judgment of the Supreme Court reported in (2001)5 SCC 705 (Deena Nath vs. Pooram Lal), paragraph 15 to 18 it was submitted that a plea of bona fide requirement has to be adjudged on the basis of the materials and the circumstances governing the case and should not be at the whims and fancy of the plaintiff. It was submitted that the court has held that the requirement should be reasonable and unless there is no accommodation available, such plea would not be accepted. Mr. Dwivedi also questioned the finding on partial eviction to submit that the finding is vague and contrary to evidence. Mr. Dwivedi submitted that the judgment and order Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 6 impugned is not sustainable and is contrary to the evidence on record and thus fit to be set aside. The argument of Mr. Dwivedi was contested by Mr. J.S. Arora, appearing for the plaintiff and who began his argument with reference to the statement made by the defendant in paragraphs 12 and 13 of the written statement and paragraph 12 of his deposition in which the defendant had categorically stated that there was an oral understanding between the parties that the plaintiff would not disturb the defendant for 12 years after the retirement. Relying upon the statement of the defendant himself, it was submitted that as per the admission of the defendant, the period of 12 years has expired in 2011 and in which view the defendant has no right to contest the judgment and order impugned. Mr. Arora submitted that it is by now well settled that a court is not precluded from looking into the subsequent developments which takes place during the pendency of a case for the ends of justice or shortening the litigation. In support of his submission he relied upon the following judgments: (i) AIR 1974 M.P. 75, (Shikharchand v. Bari Bai) paragraph 14 (ii) AIR 1970 Patna 338, (Tata Iron & Steel Co. v. Abdul Ahad) paragraph 12 and 20 Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 7 (iii) AIR 1978 Patna 91(R. Shahi v. Bala Prasad Motani), paragraph 18-A Responding to the plea of the defendant regarding other option available to the plaintiff, learned counsel with reference to the statement made in paragraph 3 of the plaint submitted that since he had categorically mentioned in the plaint that he had relinquished his share in the ancestral property in favour of his brothers, hence there was no false statement nor any false declaration on this account. In support of his submission learned counsel also referred to the deposition of the plaintiff at paragraph 15. It was stated that even if there was no document to such effect, a statement made on oath before the court in the plaint as well as during the course of evidence is sufficient proof of the same and even regarding the relinquishment of interest by the plaintiff in the ancestral property. Mr. Arora concluding his argument has submitted that the entire plea of Mr. Dwivedi regarding the other option available falls flat in view of the deposition of the plaintiff at paragraph 39 and 40 of his deposition in which he has stated that the ancestral house had been sold of by his brothers. Concluding the argument Mr. Arora submitted, with reference to the judgment of the Supreme Court reported in 2003(1) PLJR SC 171 (Savitri Sahay v. Sachidanand Prasad), that Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 8 a choice for a premise vests in the landlord and a defendant cannot question the same. Responding to the arguments of Mr. Arora insofar as the admission of the defendant has been referred to, Mr. Dwivedi submits that there is no such admission by the defendant of vacating the house and even the judgments relied upon by Mr. Arora are relatable to fixed tenancy and not applicable to the case in hand. I have heard learned counsel for the parties and have perused the materials on record. The arguments of Mr. Dwivedi can be summarized as follows: (a) The plaintiff had made a false statement for raising a plea of personal necessity and regarding no other house available in Bhagalpur even when there was an ancestral house situated in mohalla Jogsar and since the plea itself was based upon deception, hence the suit was fit to be dismissed. (b) There being an option available to the plaintiff at Jogsar, the plea for personal necessity and bona fide requirement was not correct. (c ) The finding on partial eviction is vague. (d) The statement of the defendant made in paragraph 12 and 13 of the written statement and paragraph 12 of the deposition cannot be taken to be an admission. Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 9 I shall be dealing with each point one by one. Insofar as the plea of bonafide requirement and personal necessity is questioned relying upon the other house at Bhagalpur and the judgment of the Supreme Court rendered in the case of Dina Nath (supra) is concerned, it is noted that the Supreme Court has categorically held that such plea can be taken if the landlord concerned has no other reasonable and suitable residential accommodation of his own. The lower court records had been summoned under the orders of this Court and Exhibit-B which was being relied upon by Mr. Dwivedi to submit that the ancestral house is in the name of the plaintiff, manifests that the contention advanced is not the correct position rather the khatiyan placed at Annexure-B records the house in the name of the father of the plaintiff, namely, Shiv Narayan passed. Thus the ancestral house being recorded in the name of the father of the plaintiff it was a joint family property and not exclusive property of the plaintiff petitioner so as to call his own. That being the legal position there is absolutely no falsity in the statement of the plaintiff regarding no other house at Bhagalpur. My conclusion on this issue would also answer the issue posed at Item-B. Insofar as the finding on the issue of partial eviction is concerned, records manifests that the residential house consists of Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 10 three rooms. A house comprising of three rooms definitely cannot accommodate two families as each family requires a privacy. Thus the issue on partial eviction also stands answered. Coming to the last item that is the statement of the defendant in the written statement and in his deposition, what I find is that the defendant has specifically mentioned in paragraph-12 of his written statement that prior to induction in the suit premise a formal term and condition was arrived at between the parties and according whereto the plaintiff promised and assured not to disturb the defendant for a period of 12 years after his retirement and further agreed not to take any legal steps. The said statement of the defendant in his written statement again finds reiteration in his deposition at paragraph-12 and 13. The said position clearly manifests that the defendant had tried to contest the suit on grounds that by oral understanding, the suit was premature. Thus even according to the statement made by the defendant himself, the said period having lapsed in the year 2011, the understanding between the parties has come to an end in the year 2011. Even otherwise in view of the uncontroverted position emanating from the documentary evidence, that the plaintiff does not own any other residential house at Bhagalpur, no legal infirmity or jurisdictional error or perversity can be found in the judgment and Patna High Court C.R. No.175 of 2012 (8) dt.15-05-2013 11 order impugned.
Decision
For the reasons aforesaid, this application is dismissed. Let the Lower Court records be returned to the court concerned forthwith. S.Sb/- (Jyoti Saran, J)