Hiralal Agarwal vs Most. Sumitra Devi

Narayan Roy, J.—This civil revision application u/s 14(8) of the Bihar Buildings (lease, Rent and Eviction) Control, Act 1982 (hereinafter to be referred to as the ''Act'') has been filed by the defendant-tenant against the judgment and decree dated 8.10.1991 passed in Eviction Suit No. 15 of 1990 by which the suit on the ground of personal necessity has been decreed.

It appears that the plaintiff brought the suit aforementioned on personal necessity for setting up business for his one of the grand-son, namely, Om Prakash Banshal, who was unemployed. The defendant, however, contested the suit by taking leave of the Court and the learned Court below on the basis of the pleadings of the parties and evidence on records decreed the suit holding that the plaintiff required the suit premises reasonably and bonaftdely for engaging his grand-son, namely, Om Prakash Banshal.

Mr. Kameshwar Prasad, learned Counsel appearing on behalf of the petitioner mainly assailed the judgment impugned on the ground that since the learned Trial Court has not recorded a finding on the question of partial eviction so far the need of the tenant is concerned, as per proviso to Section 11(1)(c) of the Act, the judgment impugned is not sustainable in law.

I have carefully examined the judgment impugned and I find that the learned Court below though has held that the entire suit premises is required for the use of the plaintiff, it has not recorded a finding as to whether need of the tenant shall be satisfied even by evicting him partially from the suit premises.

From the records of this case, it appears that the defendant has not expressed his willingness to occupy part of the suit premises either in the written statement or in his evidence. However, in course of argument in this Court an affidavit has been filed on behalf of the petitioner stating therein that he is willing to occupy even a portion of the suit premises and even if he is partially evicted from the suit premises, it will satisfy his need.

Mr. Eqbal, learned Counsel for the opposite party, however, has opposed this affidavit and stated that since the petitioner has not shown his willingness in his pleadings or in his evidence, he cannot be allowed to express his willingness in this Court as per proviso to Section 11(1)(c) of the Act.

It is well settled that the Court shall proceed to enquire into the question of partial eviction as per the proviso to Section 11(1)(c) of the Act provided the tenant expresses his willingness or readiness to occupy the portion of the suit premises.

In the peculiar facts and circumstances of this case and taking into consideration the fact that an affidavit has been filed in this Court by the defendant-petitioner showing his willingness to occupy even portion of the suit premises, this application must be allowed on the limited question for holding an enquiry as per the proviso to Clause (c) of Sub-section (1) of Section 11 of the Act.

In that view of the matter I allow this application, the judgment impugned is set aside to the extent indicated above and the matter is remitted to the trial Court. Now it shall proceed to examine the matter afresh in the light of the requirement of proviso to Clause (c) of Sub-section (1) of Section 11 of the Act treating the land-lord''s need to be proved. It is clarified that the enquiry to be made hereinafter by the learned Court below is limited to this extent, i.e. whether the premises can be decided and eviction of the tenant from a part of the premises can substantially justify the land-lord''s need.

It is further clarified that parties need not adduce evidence on other points and they will be entitled to adduce evidence in the Trial Court for this purpose and to this extent only. The trial Court shall dispose of the matter within a period of 3 months from the date of receipt/production of a copy of this order. Parties are directed to appear in the Court below with the certified copy of this order no sooner it is available. No order as to costs.

When I dictated this judgment Mr. Eqbal learned Counsel appearing on behalf of the opposite party stated that the petitioner is not depositing the rent in the Court below.

Mr. Kameshwar Prasad, learned Counsel appearing on behalf of the petitioner, however, states that he has no instruction in this regard.

If the petitioner is not depositing the rent for the suit premises in the Court below, he must deposit both the arrears of rent as well as the current rent in the Court below positively.

Let the records of this case, if any be sent down to the Court below forthwith.