Madhurilata Devi and Others vs Sri. Gourapada Basak

T.S. Misra, C.J.—This revision petition arises out of a suit for eviction based on two grounds, namely, (1) the Defendant had defaulted in making payment of rent and (2) the shop in question adjacent to the shop of the Plaintiff is bonafide required for the purpose of expanding the business of the Plaintiff. The trial Court decreed the suit on the ground that the Defendant was a defaulter in payment of rent. That decree was however reversed by the learned Assistant District Judge No. 2 on at appeal filed by the tenant Defendant. The Plaintiff then preferred a revision petition in this Court being civil Revision No. 50 of 1978. This Court declined to interfere with the finding reached by the appellate Court on the issue as to whether the Defendant was a defaulter. The appellate Court had held that the Defendant was not a defaulter in making payment of rent. This Court however found that the finding relating to lack of bonafide requirement recorded by the Assistant District Judge was based on misconceptions of law and without discussing the materials on record. Hence it was set aside by this Court. The revision petition was allowed and the judgment and decree passed by the appellate Court below were set aside and the matter was remanded to the learned Assistant District Judge to give his finding on issue No. 8 after perusal of the evidence of both sides already on record. The matter was then taken up again by the appellate Court below. The learned Assistant District Judge No. 2 Cachar, Silohar held on appraisal of the evidence that there was noting to show that the Plaintiffs needed the suit room for their own use and occupation. The decided against the Plaintiff and the suit was dismissed. The Plaintiffs have once again come up to this Court in revision u/s 115 Code of Civil Procedure.

Before we proceed to examine the contentions raited by the parties before us it would be pertinent to point out that we are not sitting in appeal over the judgment of the appellate Court below. The Plaintiffs Petitioners have invoked the revisional jurisdiction of this Court u/s 115 Code of Civil Procedure. The jurisdiction u/s 115 CPC is limited in its scope. The High Court in exercise of its revisional High Court in exercise of its revisional jurisdiction u/s or 115 CPC may call CPC for the record of any case which has been decided by any Court subordinate to the High Court and in which no appeal lies and may pass such order in the case as it thinks fit if the Subordinate Court appears to have exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction not vested or to have acted in the exercise of the jurisdiction illegally or with material irregularity.

The scope of Section 115 or the CPC was examined in a member of casts by the Privy Council as also by the Supreme Court (See Rajah Amir Hussain Khan v. Sheo Baksh Singh (1884) 11 Ind App 237, Balakrishna Udayar v. Vasudeva Aiyer AIR 1917 PC 71 ; AIR 1949 156 (Privy Council) Manindra Land Building Corporation Ltd. v. Bhutnath Banerjee AIR 1954 SC 1336 ; Vora Abbasbhai Alimahomed Vs. Haji Gulamnabi Haji Safibhai, : D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, ; Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, ; Shri M.L. Sethi Vs. Shri R.P. Kapur, Referring to these decisions the Supreme Court once again in Sher Singh v. Joint Director of Consolidation and Ors. AIR 1978 SC 1341 laid down:

The position that emerges from these decisions is that Section 115 of the Code of Civil Procedure, empowers the High Court to satisfy itself on three matters: (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case in one in which the Court ought to have exercised jurisdiction; or (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied that there is no error in regard to any of these three matters, it has no power to interfere merely because it differs from the conclusions of the subordinate Court on questions of fact or law. A distinction must be drawn between the errors committed by subordinate Courts in deciding questions of law which have relation to, or are concerned with questions of jurisdiction of the Courts, and errors of law which have no such relation op connection. An erroneous decision on a question of fact or of law reached by the subordinate Court which has no relation to question of jurisdiction of that Court, cannot be corrected by the High Court u/s 115.

It is not the case of the Plaintiff Petitioners that the appellate Court below has exercised a jurisdiction not vested in it by law. It had in fact the jurisdiction to entertain and hear the appeal. The contention of the Plaintiffs Petitioners who are landlords of the premises in question however is that the appellate Court below has based its finding on extraneous considerations and has reached the conclusion which is not only perverse but which no reasonable man will arrive at. In examining this contention it has to be borne in mind that Section 115 CPC applies to question of jurisdiction above, the irregular exercise or non-exercise of it or the illegal assumption of it. It is out directed against conclusions of law or fact in which the question of jurisdiction is not involved. In other words, an erroneous decision on a question of law or fact reached by the subordinate Court which has no relation to question of jurisdiction of that Court cannot be connected u/s 115 Code of Civil Procedure. An erroneous finding of fact was therefore, be not amenable to challenge u/s 115 CPC on the ground that on reappraisal of the evidence a different conclusion may be reached. The error must relate to the question of jurisdiction and it must be shown that the Court below had acted illegally or with material irregularity in exercise of its jurisdiction.

The premises in question was originally owned by the Defendant No. 2. The Plaintiffs and the Defendant No. 1 were his tenants in that premises. However on 9th October, 1964 the Plaintiffs purchased the said premises from the Defendant No. 1 and became owners and landlords thereof. The Plaintiffs have been in possession of substantial portion of the said building on the ground floor thereof where they have been carrying on their business in the name and style Hindustan Medical Hall. It seems that besides the Plaintiff there were two other tenants in the suit premises one of them being Defendant No. 1. The other tenant was evicted by the Plaintiffs from the accommodation occupied by him and the Plaintiffs are in possession of that accommodation as well. Now the only tenant left on the ground floor if the Defendant No. 1. He has in his possession a shop measuring 16 (sic) cubits by 4 (sic) cubits which he had taken on rent some time in the year 1954 at a monthly rental of Rs. 13/-. The Plaintiffs have filed the suit which has given rise to this revision for eviction of the Defendant No. 1 from the said shop on the ground that they require that shop in order to expand their family business vide paragraph 3 of the plaint. The Defendant No. 1 has refuted this averment in his written statement. Both the parties adduced oral evidence on the point. The Plaintiff examined Sri Surendra Dev as P.W. 2 who deposed that he has a medical business in the name and style Hindustan Medical Hall and for his business the shop in question is required. He has further deposed that the Plaintiffs were distributors of six medical companies. His sons Sukhendra and Satyendra manage the pharmacy business and all works are done by them. He also deposed that the Plaintiffs have evicted Bharatia Subhash Acharjya from that premises which the Plaintiffs are now using for keeping their medicines but due to want of sufficient space medicines are being kept in disorderly manner and there is no space to move about and as the roof of the first floor is made of wood the medicines cannot be kept there. The Defendant Gourapade Basak examined himself as D.W. 2 in the case. He admitted in his deposition that the Plaintiffs have their pharmacy in the three rooms on the ground floor of the premises in question and chat the Plaintiffs have evicted Shri Subhash Bhattacharya from the adjacent room. On these facts the question which arose for determination in the case was whether the Plaintiffs "bonafide required" the shop in dispute for their use and occupation. Examining the evidence on record the appellate Court below has held that there was nothing to show that the Plaintiffs really needed the suit room for their own use. The Counsel for the Plaintiffs Petitioner submitted that the finding reached by the appellate Court below is totally perverse and should therefore be interfered with. On the other hand the Counsel for the Defendant/Respondent submitted that the finding being a finding of fact is not liable to be interfered with in revision.

In order to appreciate the rival contentions of the parties it would be appropriate to set out herein below the material provisions of Section 5 of the Assam Urban Area Rent Control Act, 1972 (for short the Act):

Section 5(1): No order or decree for the recovery of possession of any house shall be made or executes by any Court so long as the tenant pays rent to the full extent allowable under this Act and perform the conditions of the tenancy:

Provided that nothing in this Sub-section shall apply in a suit or proceedings for eviction of the tenant from the house:

(a) * * *

(b) * * *

(c) Where the house is bonafide required by the landlord either for purposes of repairs or rebuilding or for his own occupation or for the occupation of an person for whose benefit the house is held or where the landlord can show any other cause which may be deemed satisfactory by the Court or.

The Act thus puts fetters on the right of a landlord to evict his tenant from the premises occupied by him. It is intended to protect the interest of the tenants when it says that no order or decree for the recovery of possession of any house stall be made or executed by the Court so long as the tenant pays rent. A tenant cannot herein be evicted from the premises merely on the whim of the landlord provided he continues to pay rent. A landlord may however seek eviction of the tenant if any of the conditions mentioned in Clause (a) to (g) of the first proviso to Sub-section (1) of Section 5 of the Act is made out and substantiated. Under Clause (c) eviction of a tenant may be asked for if the accommodation is bonafide required by the landlord either for the purpose of repairs or reconstruction or for his own occupation or for the occupation of any person for whose benefit the house is held. So one of the grounds on which eviction of a tenant may be decreed is the bonafide requirement of the landlord for his own occupation. The crucial words in Clause (c) are "bonafide required". The word "bonafide" connotes "honestly or in good faith". The concise Oxford Dictionary (New Edition) gives its meaning as "genuine, honest intention". According to Stroud''s Judicial Dictionary 4th Edn. "bonafide" is equivalent to the phrase "honestly". Item 22 of Section 2 of the General Clauses Act points out that a thing shall be deemed to be done in good faith when it is done honestly. "Bonafide" therefore clearly refers to honest intention. The word "require" contains within its ambit something more than a mere desire. It has an element of need in it. If a person really and genuinely needs something be will be said "to require" that thing. The words "bonafide requires" therefore, connote that the landlord genuinely, pressingly and honestly needs the premises in question for his use. There is ample authority in support of this view. In the case of Phiroze Bamanji Desai Vs. Chandrakant N. Patel and Others, it was pointed out that the word "requires" indicates that there must be an element of need and not mere desire before a landlord can be said to require the premises for his own use and occupation. Again, in the case of Mattulal Vs. Radhe Lal, while construing the word "require" the Supreme Court observed:" the word required signifies that mere desire on the part of the landlord is not enough but there should be element of used and the landlord must show, the burden being upon him, that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business. So, where the eviction of the tenant is sought for on the ground that the house is bonafide required by the landlord for his occupation the Court has to see whether the Plaintiff genuinely and honestly needs the said accommodation for his own use. A mere desire to have the accommodation would not be sufficient. There must be an element of need and the landlord must show that he honestly requires the accommodation for the purpose in question.

Let us now apply the test to its facts of the instant case.

The Plaintiffs had pleaded in their plaint that in the shops lying to the north of the Defendant''s shop they are carrying on a family medicine business known as Hindusthan Medical Hall and that it has become absolutely necessary to expand their business and for this reason it has become necessary to have the entire ground floor of the building including the shop in dispute. The ground on which the Plaintiffs sought eviction of the Defendant was, therefore, a personal requirement of the Plaintiffs namely "expansion of their business". This is in our view a vague assertion. The Plaintiffs did not specify as to in which manner and what extent the expansion of their business was intended. No documentary evidence was adduced on the point to establish that they genuinely and honestly needed the shop in question for expansion of their business and that unless the said shop was made available to them their business can not be expanded. The oral testimony of Sri Surendra Ch. Dev P.W. 2 fell short of proving it. He had deposed before the Court that be is running the medical business in the name and style as Hindusthan Medical Hall, that the premises is required for that business that the Plaintiffs were distributors of six medical companies and that his sons Sukhendra and Satyendra manage the pharmacy business and that he has evicted Subhas Acharjya and Bharatia and in those shops medicines were being kept but they were kept in disorderly manner for want of space. The appellate Court below examined this evidence and found no substance therein. It observed that if the business was sought to be extended or intended to be extended there should be some concrete evidence. It goes on to observe that if they had taken other some more Pharmacy business or some other business besides Pharmacy business or if they have started a wholesale business there must be documentary evidence to this effect. The Counsel for the Plaintiffs submitted that this approach of the appellate Court below was erroneous. I am unable to accept the contention. The case of the Plaintiffs as set out in the plaint was that they wanted the accommodation in question to expand their existing business. In order to appreciate as to whether they really needed the said shop for the purpose of expansion of their business the Court below wanted some evidence on the point otherwise how could it be said that the accommodation which was already in possessive of the Plaintiffs was insufficient to meet their requirement. The appellate Court below found that there was nothing to show that the Plaintiffs really needed the suit room for their own use and decided the issue against the Plaintiffs. It is a finding of fact which cannot be interfered with in revision u/s 115 Code of Civil Procedure. The bare statement of the Plaintiffs without more that they require the suit premises for the purpose of expanding their existing business is not sufficient. They had to establish by cogent and convincing evidence that they genuinely, honestly and pressingly needed the accommodation in suit for the purpose of expanding their business. In my view the appellate Court below did not misdirect itself in regard to this matter. It did not misconstrue the words "bonafide requires" nor did it erroneous place the burden of proof on the Plaintiffs. In fact, (sic) the applies by the Court below was perfectly in accordance with law and the burden was rightly placed on the Plaintiff to establish that they honestly needed the accommodation for expanding their existing business. The inference of fact raised by the appellate Court below was preeminently reasonable and cannot be characterised as perverse. There is, therefore, no valid reason to interfere with the finding of fact reached by the appellate Court below on the issue as to whether the Plaintiffs bonafide require the premises in dispute for their own use.

The Plaintiffs have failed to make out that the Court below has acted illegally or with material irregularity in exercise of its jurisdiction. The impugned judgment and decree passed by the Court below is neither vitiated on the ground of lack of jurisdiction or wrong assumption of jurisdiction nor on the ground that the jurisdiction was exercised illegally and with material irregularity. There is, therefore no justifiable ground for interference u/s 115 Code of Civil Procedure.

In the result, the revision petition lacking merits fails and is dismissed with costs which we assess at Rs. 300/-.