====================================================== 1. Binod Kumar Varnwal S/O Late Kashi Nath Sah Resident Of Village- Barauli v. 1
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.405 of 2012 ====================================================== 1. Binod Kumar Varnwal S/O Late Kashi Nath Sah Resident Of Village- Barauli, P.S- Barauli, District- Gopalganj. Versus 1. Smt. Daraupati Verma W/O Late Nirmal Kumar Verma At Vindyachal Bhawan, Babunia More Siwan, P.O- Siwan, P.S- Siwan Town, District- Siwan. .... .... Appellant/s .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Udit Narayan Singh, Adv. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V NATH ORAL ORDER 6 21-03-2013 Heard Mr. Udit Narayan Singh, the learned counsel appearing on behalf of the appellant. The learned counsel for the respondent is also present.
Legal Reasoning
2. The defendant-tenant is the appellant in this second appeal against the judgment and decree of affirmance by the appellate court below upholding the decree for eviction against the defendant. 3. The plaintiff filed the suit for eviction of the tenant- defendant on the grounds of default in payment of rent and personal necessity. With regard to the ground of default, the plaintiff came out with specific case that the defendant failed to pay the rent from the month of January, 2007 onwards. With regard to the personal necessity, it was the case of the plaintiff that 2 Patna High Court SA No.405 of 2012 (6) dt.21-03-2013 2 / 5 the suit premises was required for establishing the son of the plaintiff in business. The defendant appeared and contested the claim of the plaintiff with specific assertion that he had not made any default in payment of rent and the plaintiff had not got bonafide personal necessity for the suit premises. 4. The trial court after considering the pleadings and evidence of the parties returned the finding that the defendant had been defaulter from January, 2007. The issue of personal necessity was also decided in favour of the plaintiff and the suit had been decreed. The appellate court, on reappraisal of the evidence of the parties, concurred with the findings of the trial court and dismissed the appeal.
Legal Reasoning
5. Mr. Singh, the learned counsel appearing for the appellant, has firstly submitted that the defendant has come out with specific pleading that he had paid the rent on 06.02.07 and 14.03.2007 but both the courts below have taken into consideration only the payment made on 06.02.07 and have omitted to give a finding with regard to the payment made on 14.03.07. It has been urged by the learned counsel that both the courts below have also failed to take into notice the case with regard to payment of rent as claimed in the written statement. It has been submitted by the learned counsel that the defendant has 3 Patna High Court SA No.405 of 2012 (6) dt.21-03-2013 3 / 5 just missed to state about the month for which the rent was paid on 14.03.07. It has been next argued that in the plaint the date of cause of action arising for the suit has been mentioned as 10.02.06 and later on the prayer for amendment of the plaint by correcting the said date as 10.02.07 had been rejected and in this view of the matter, the suit must have been dismissed as there was no cause of action arising on 10.02.06. On the basis of these submissions, the learned counsel has stated that the substantial questions of law arise for consideration in this appeal. 6. After perusal of the impugned judgments of the courts below and consideration of the submissions of the learned counsel for the appellant, it is pellucid that the relationship of landlord and tenant between the parties has been admitted. The plaintiff has claimed the defendant to be defaulter in payment of rent from January 2007 onwards. The defendant denied the said assertion and has come out with the case that the rent was paid on 06.02.07 and 14.03.2007. In support of the payment of rent, the defendant produced rent receipts which were marked Ext.A series in the suit. However, after the perusal of the rent receipts, both the courts below have come to the concurrent finding that these receipts do not corroborate the case of payment of rent after the month of December, 2006. With regard to the receipt( Ext.A) dated 4 Patna High Court SA No.405 of 2012 (6) dt.21-03-2013 4 / 5 06.02.07, it has been found by the courts below that the said payment related to the rent for the month of December, 2006. The defendant, in his testimony as witness in the suit, has also accepted that he did not remember the month for which the rent was paid on 14.03.07. This testimony of the defendant himself coupled with the absence of any receipt showing payment of rent after December, 2006 leads to the irresistible conclusion that the rent was not paid by the defendant after December, 2006. Both the courts below have scrutinized the evidence on record meticulously and no perversity in the same could be established on behalf of the appellant. 7. The maladroit effort on behalf of the appellant, to take benefit of the date mentioned in the plaint as 10.02.06 as the date when the cause of action arose, is more than apparent. It has not been disputed that the plaintiff filed a petition for amendment of the said date as 10.02.07 on the ground that it was a typing mistake. However the said prayer of amendment had been rejected on the ground of delay. The learned counsel for the appellant has failed to point out that in the appellate court below this point was specifically raised on behalf of the appellant. Even otherwise also the cause of action is a bundle of facts which are required to be established by the plaintiff if controverted. Mere mention of a 5 Patna High Court SA No.405 of 2012 (6) dt.21-03-2013 5 / 5 wrong date in concluding paragraph of the plaint, which is apparently a typing mistake when considered alongwith averments in the earlier paragraphs, could not have effaced the entire evidence and pleadings in the suit particularly when the parties to the suit have gone to trial knowing fully well the issues arising in the suit. 8. In view of the aforesaid discussions, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V Nath, J)