Goyal Trading Company and Others vs Reshmi Devi and Others

Poonam Srivastav, J.—The instant civil revision application is preferred challenging the judgment and decree dated 21th May, 2010 (decree signed on 31st May, 2010) passed by the Sub judge V, Jamshedpur in Eviction suit No. 74 of 1993 by which the revisionists-tenants were directed to handover vacant possession of the suit premises within sixty days.

The eviction suit was instituted u/s 11(1)(c) read with Section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "the Act") on the ground of personal need. According to the case set up in the original plaint, need of the shop was shown for Plaintiff No. 2-Satyanarayan Agarwala. They were three brothers, namely, Maliram Agarwala, Bishwanath Agarwala and Satyanarayan Agarwala. The eviction suit was instituted in the year 1993 ''stating therein that Satyanarayan Agarwala has now started business of his own and he was carrying on his business under the stair case of the building where the disputed shop is situated pertaining to Holding No. 9 S.B. Shop Area, Diagnal Road, Bistupur, Jamshedpur, District Singhbhum East. The building where the shop was situated is commonly known as "Naredi Bhawan". The Plaintiffs relied on the memorandum of partition deed which was an agreement dated 27th February, 1954. There were three shops situated on the ground floor ; one was occupied by Maliram Agarwala, another was leased to one Ramnivas Agarwala which was later on vacated and at present in occupation of his third brother, namely, Bishwanath Agarwala and the shop where the revisionists running their business in the name and style of M/s. Goyal Trading Company on a monthly rent of Rs. 400/- besides electricity charges has come in the share of Satyanarayan Agarwala,

The Plaintiff Satyanarayan Agarwala was involved in the scrap business and at present he is conducting his business under stair case and, therefore, the contention on behalf of the Plaintiffs is that the shop premises was required for his exclusive business.

During pendency of the proceeding, Pleader Commissioner was appointed who made the local inspection in presence of both the parties and submitted his report stating therein that the Plaintiff was carrying on his scrap business under stair case. The said report stands confirmed.

After exchange of the pleadings, the court below proceeded to decide the eviction framing a number of issues. Issue Nos. III and III (A) relates to Section 11(c) of the Act. The question raised was whether a suit for eviction could be decreed on the ground of bona fide requirement of the landlord. Issues No. III and III (A) are enumerated hereinbelow;-

III. Does the Plaintiffs require the suit premises reasonably and in good faith for own use and occupation?

III(A). Whether the requirement of the Plaintiffs can be satisfied by partial eviction?

The Plaintiff examined himself as P.W. 1 and other witnesses who entered in the witness box and gave oral testimony on behalf of the Plaintiffs as P. Ws. 2 to 6. Certified copy of the memorandum of agreement dated 27th February, 1954 between Rameshwar Lai and Bura Lal, father and uncle of the Plaintiffs, regarding partition of the joint family property, was also adduced in evidence. Several other documents to substantiate the running of business of Maliram Agarwala in the name and style of " Ganga Store" duly signed in the capacity of owner and stamped by the officer of the Labour Department, Jamshedpur was also adduced in evidence. The income tax return pertaining to Ganga Store was brought on record as Exts. 6, 6/A, 6/B and 7 and certain photographs along with negative marked as Ext. 8. A certified copy of deposition of Taki Ahmad Khan given in Eviction Suit No. 151 of 1993 was marked as Ext. 9. Carbon copy of the application written by Satyanarayan Agarwala to the Vice Chairman, JNAV dated 13.2.1996 and 12.3.1996 have been marked as Exts 10, 10/A and 10/B respectively. A numbers of postal receipts in support of the case of the Plaintiffs as enumerated in paragraph 5 of the judgment were also brought on record.

Similarly the Defendants were also examined B.L. Agarwal who gave his oral testimony as D.W. 1. Anil Choudhary, Balmiki Singh, Wall Tax Daroga, Mahesh Kumar Jhabar, Hem Sunder Mishra, Virendra Kumar were examined as D. Ws. 2 to 7. So far the documentary evidences are concerned, there were number of documents but emphasis have been laid by the Defendants on the income tax return of the Plaintiff Satyanarayan Agarwala as Exts. E and E/1.

The court below after examining all the oral and documentary evidences was of the opinion that the Plaintiff landlord has successfully established that he requires the disputed shop for his own use and, therefore, the shop is liable to be released. Accordingly, the suit was decreed and the release order was passed.

Mr. Manjul Prasad, learned senior counsel assisted by Mr. Ananda Sen and Arvind Kumar Sinha, Advocate appearing on behalf of the revisionists assailed the judgment and the findings on the two issues arrived at by the court below and it was emphatically argued that the court below has failed to decide the question of bona fide need and wrongly held in favour of the Plaintiff that accommodation in question was required in "good faith". The element of good faith require more than desire which will be evident from the evidence of the Plaintiff and therefore the findings recorded by the court below was thoroughly scrutinised for the aforesaid reasons. The emphatic assertion on behalf of the revisionist is that the owner Satyanarayan Agarwala himself has been examined and has given contradictory evidence which is not reliable. It is also emphasised that he has submitted his income tax returns which is evident on bare perusal of Exts. E and E/1. It is also evident that the income of the Plaintiff is increasing day by day and obviously the requirement as pleaded by the Plaintiff is rendered redundant. Therefore, the findings arrived at by the learned court below are liable to be set at naught.

Mr. P.K. Prasad, learned senior counsel assisted by Mr. P.A.S. Pati appearing on behalf of the landlord, disputed each and every argument advanced on behalf of the opposite parties and the fact that the Pleader Commissioner has clearly substantiated and established that the Plaintiff is carrying on his business under the stair case is an ample proof of the fact that he has no other accommodation but to go and continue his work from a small place in the stair case. It is specifically stated that the tenant had certain business premises where six shops were situated in Goyal Bhawan. There was also a basement having an area of 200 sq.ft. and immediately before 1993, they got the said building in Jugsalai Station Road, disposed of in the year 1993 itself. Learned Counsel reminded and pointed out that the suit was instituted in the year 1993 and, therefore, if there was any intention to carry on business from his own building, this should not have been done. The said building which was disposed of by the Defendants in the year 1993 owned by them was also in the market area. Though this fact was denied by the tenants but during cross-examination, the witness admitted that the house situated in Bistupur is Known as "Goyal Bhawan" and it belongs to Defendant No. 2. Besides, the counsel appearing on behalf of the landlord submitted that the fact that income of the landlord are increasing is also a pointer that they need larger accommodation to conduct business and, therefore, even assuming that they are carrying the business under the stair case and paying income tax, this cannot deny them to expand their business. Several decisions were also relied on by both the parties which I shall discuss later.

I have given careful consideration to the respective arguments advanced by the learned Counsel. I am conscious that eviction suit on the ground of personal need is only when the landlord is able to substantiate and satisfy the court that the building in question in occupation of the tenant is bonafidely required for his own use and the eviction suit has been instituted in good faith. The landlord can succeed to oust the tenant from the business premises only when he is able to establish his need by means of convincing evidence. The landlord though has an uphill task but the tenant also cannot be allowed to deprive the landlord of his rightful claim.

Learned Counsel appearing on behalf of the revisionists also brought to my notice that during the course of proceeding, an amendment application was moved whereby the landlords were trying to substantiate that there was an additional need for one of the sons of Maliram Agarwala, namely, Naresh Agarwala. However, the said amendment was dismissed and the court below has not taken into consideration while allowing the release application and therefore, I decline to notice this fact.

The suit for eviction was instituted in the year 1993, a very long time has lapsed and the landlord is still conducting his business under the stair case conducting scrap business inspite of the fact that there was a bigger shop measuring an area of 11 1/2 ft. x 30ft. of which he is the owner, which is being used by M/s. Goyal Trading Company, the revisionist. Merely because the landlord made an attempt to move an amendment for establishing the additional need on behalf of the son of Maliram Agarwala will not ipso facto render the case of the Plaintiff as being malafide and not a bona fide need. The tenants have not been able to show that there was any other shop which the landlord has let out or sold during the course of proceedings which could suffice his need and, therefore, 1 am in agreement with the findings arrived at by the court below.

The revisionists have relied on the judgment of the Supreme Court in Kishan Chand v. Jagdish Pershad and Ors. [(2003) 9 SCC 1511 paragraphs 6 and 7. This judgment relates to a case where the landlord indulged in concealment of material facts and, therefore, the Court was of the view that the landlord was in possession of 35 rooms and thus the needs shown by the landlord was held to be not in good faith, The next judgment relied upon is of the Patna High Court, Ranchi Bench in Madan Lal Agarwal v. Binode Kumar Tantia and Ors. [1996 (2) PJLR 737] para-14 and also Bata Shoe Co. Pvt. Ltd. v. Durga Prasad Gupta [1991 BBC 192]. All these decisions relied upon by the revisionist is on the question of good faith which do not apply to the facts of the present case. The very fact that the need shown by Satyanarayan Agarwala was sufficiently substantiated by the oral evidence as well as by documentary evidence and also the report of the Pleader Commissioner. So far the income tax return submitted by Satyanarayan Agarwala is concerned that was taken into consideration. In my opinion, the said returns only substantiate that Satyanarayan Agarwala, the landlord has sufficient business and he is conducting from a place where the Pleader Commissioner found him to do so and obviously it is absolutely inadequate. He is submitting his tax return but this cannot rule out the fact that his business has expanded day by day which is evident from the tax returns. Thus he is being deprived from his own shop which he is very much entitled to (sic) but on account of proceedings which has lingered for approximately 17-18 years, he is still carrying on business under the stair case. The tax return is not going to help the revisionist in any way.

However, the opposite parties have also cited decisions of the Apex Court in the case of Ramkubai (Smt) Deceased by Lrs. and Others Vs. Hajarimal Dhokalchand Chandak and Others, ; Gaya Prasad Vs. Sh. Pradeep Srivastava, and Chandrika Prasad (D) Thr. Lrs. and Another Vs. Umesh Kumar Verma and Others, . The case of Chandrika Prasad (Supra) relates to the scope of the revisional power under the Rent Control Act, the Court has to examine and scrutinise evidence while arriving at a conclusion that the release application was moved in "good faith". I am conscious of the fact that the scope of Section 14(8) of the Act cannot be equated with Section 115 of the Code of Civil Procedure, and thus while examining this question, the Apex Court has given a caution in the case of Chandrika Prasad (Supra) that the powers under revision in the Rent Control Act cannot be equated with that of full-fledged appeal. The touchstone of the Rent Controller should be only "whether it is according to law or not". The Court in exercise of the revisional jurisdiction, cannot start reappraising the entire evidence and substituting its own findings of fact in tine event the court below has recorded its finding on the basis of the evidence and on recording appraisal of the same and this is not likely to be interfered whatsoever.

in the facts and circumstances of the case, the impugned judgment calls for any interference which is emphasized on behalf of the tenant specially on the basis of tax returns Exts. E and E/1.

At the end of the argument, learned Counsel -stressed on the question of partial release of the building measuring an area of 11 1/2ft. x 30ft. and, therefore, it was emphasised that in the event part of the accommodation or half of the accommodation could be released, the tenant will some how try to accommodate their business within half of their accommodation. No doubt the tenant suffers whenever he is asked to vacate the shop but that cannot deprive the landlord of his rightful claim of his own building. The fact that the proceeding of eviction commenced in the year 1993 but till date, the tenants have not made any bonafide attempt or look for any alternative accommodation which shows that the tenants have no intention whatsoever to vacate the shop but carry on their business for all times to come.

In view of what has been stated above, I am of the considered view that the Plaintiffs-landlords have been able to substantiate their bona fide need and the instant release application was filed in "good faith", also there was a dire necessity for the third brother i.e. Satyanarayan Agarwala to shift/expand his business from the disputed accommodation after getting it vacated from the tenanted premises.

In the facts and circumstances and for the reasons detailed above, this civil revision petition lacks merit and it is, accordingly, dismissed. However, I shall make no order as to costs.