Ramesh Chandra Agrawal and Others vs Bhushan Ram

S. B. Sinha, J.—This revision application arises out of a judgment dated 19.12.1987 passed by Shri B. K. Singh, Munsif, 1st Court, Gaya in Eviction Suit No. 8 of 1985 whereby and whereunder the said learned court decreed the suit for eviction filed on behalf of the plaintiff-opposite party OR the ground of personal necessity. The plaintiff-opposite party filed the aforementioned suit on the ground of his bonafide requirement as contemplated u/s 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 in respect of a double storied building bearing holding no. 16 (old) and 22 (new) at Mohalla Gosain Bagh in Ward No. 4/A P. S. Kotwali, District-Gaya.

According to the plaintiff, he has four sons, namely, Ram Jee Prasad Arya, Shyam Kumar, Mundrika Prasad and Ramesh Kumar. The plaintiff had stated in the plaint that so for as Mundrika Prasad his third son is concerned, he was sitting idle and as such he wanted to engage himself in some business and for that purpose he needs a shop premises in the ground floor of the suit holding.

The plaintiff further stated that some of his grand children have been studying in Gaya and the plaintiff has taken a premises on rent for the purpose of imparting education to his grand children. 4A The plaintiff, therefore, wanted the ground floor so as to fulfil the said need of his grand children.

the learned court (sic) gned judgment has found (sic) wanted the entire premises i. e. both, the ground and first floor for the purpose of carrying on business and residential purposes respectively.

The learned court below in his judgment has elaborately dealt with the need of the plaintiff so far as the same related to the first floor. It has also found that the plaintiff has taken a premises on rent in the town of Gaya and has been residing therein In such a situation there cannot be any doubt that the plaintiff required the first floor of his house fur his residential purpose.

As a matter of fact she petitioner has not been able to point out any infirmity in the judgment of the court below so far as the said need is required.

The learned counsel appearing for the petitioners has confined this case with the other part of the judgment and submitted that the judgment of the learned court below in so far as the same related to the ground floor is vitiated in law.

According to the learned counsel in para 13 of the plaint the petitioner has merely stated that he wants to engage his third son namely, Mundrika Prasad and he would open a shop in the ground floor in the ground in suit holding but the plaintiff has not stated in the plaint the nature of business which the said mundrika Prasad intended to carry on nor had he stated that he had the requisite fund therfor.the learned counsel, therefore, submitted that there was absolutely no basis for the claim of the plaintiff, so far as the ground floor of the said premises is concerned.

The platntiff during his examination in court categorically stated that he would not be able to start any business unless the suit house is vacated. He further admitted that he has not accumulated fund to invest in the business but sought to explain, in the same breath that he would apply for loan from the bank for that purpose. In Damadilal and Others Vs. Parashram and Others, a bench of three judges of the Supreme Court held as follows :--

Plaintiff''s case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business at Satna. The trial Court''s finding was based inter-alia on the evidence that the plaintiffs had not adequate funds to start a new wholesale, businees. The lower appellate court reversed the finding of the trial court on the ground that there was no evidence that the plaintiff had no money to start a new business; the lower appellate Court''s finding rests mainly on this consideration. The High Court pointed out that plaintiff Damadilal alias Damadilal (PW 2) stated in his evidence that their income from the business at Nadan was sufficient "only for meeting the expenses of livelihood"; plaintiff Tirath Prasad (PW 6) also admitted that" our present income is not sufficient even for our maintenance because there are many members in the family. It thus appears that the lower appellate Court overlooked a very material part of the evidence bearing on the question. It is well established that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. We therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate Court and restoring that of the trial Court on this point.

Further in Hasmat Rai and another v. Raghunath Prasad, reported in 1981 S.C. 1711 it has been observed that in order to obtain an order of eviction of tenant u/s 12(1) of the Accommodation Control Act, 1961, the landlord has to plead and establish (i) that he bonafide requires the accommodation let out to the tenart for non residential purpose for continuing or starting his business and (ii) that he has no other suitable non-residential accommodation of his own in the city or town concerned. In the said decision it has further observed "without elaborating we must notice a well established proposition that any amount of proof offered without pleading is generally of no relevance".

The said decision has been followed recently by the Supreme Court in Duggi Veera Venkata Gopula Satyanarayana v. Sakala Veera Raghavaiah and another, reported in 1987 S.C. 406. In the said decision the Supreme Court held as follows :--

It is true that all the ingredients of sub-section (3) (a) (iii) of S. 10 have not been pleaded in the petition for eviction. The respondents have only pleaded their bonafide requirement of the disputed shop-room for the purpose of commencing a business therein. There is no pleading that the respondents are not occupying any nonresidential building in the city, town or village concerned either belonging to them or to the possession of which they are entitled under the Act. The respondents, however, did not suppress any fact at the trial and disclosed the non-residential buildings owned by the respondent No. 1, but not in their occupation. It has also been observed by the High Court that the respondents have come forward with a clean and clear case and with reasons as to why they chose the disputed shop-room for the proposed business to be commenced by the respondent No. 2. Even if we set aside the eviction order and send the case back on remand to the Rent Controller allowing the parties to amend the pleadings and to adduce further evidence, it will be a futile exercise inasmuch as all the materials are (sic) ady on record. It is not the case of the appellant that if he is.given an opportunity to adduce further evidence after amendment of pleadings, he would be able to furnish any new material showing that the respondents are occupying any non-residential buildings suitable for commencing the proposed business therein and, as such, they are not entitled to an order for eviction. It is also not in dispute that the other non-residential buildings belonging to the respondent no. 1 are in occupation of tenants. The principal contention of the appellant before the Courts below was that the respondents had no reasonable justification for choosing- the disputed shop-room for the purpose of commencing a business therein for the respondent no. 2. This contention has been overruled by the Courts below and also by the High Court inasmuch as the respondents had given sufficient reasons for selecting the disputed shop-room for the purpose of commencing a business in readymade garments. Indeed, it is the case of the respondents that the disputed shop-room is centrally located in the heart of Guntur city in a business locality, that there are a number of readymade garment shops in that locality, and that the disputed shop-room is the best place for commencing such a business.

From the facts aforementioned, in my opinion, there cannot be any doubt that the plaintiff has not set out the necessary pleadings for his bona fide and reasonable requirement in his plaint relating to the claim of ground floor at all. Further from the judgment of the learned court below itself it is evident that both the plaintiff and his son categorically stated that they were not aware as to what sort of business they intend to start. From the evidence of the plaintiff as has been Tound by the learned court below also it is apparent that he had no fund for starting a business.

It appears that the learned court below in support of his judgement has merely referred to a Division Bench decision of this Court in Mrs. Veena Rani and others v. Mrs. Ishrati Amanullah and another reported in 1985 PUR 390 without considering the facts involved therein. In the said decision also it has clearly been held that although section 12(1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 which is equivalent to section 11(1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 it is not necessary to show that the landlord is in dire need of the house but reasonable requirement postulates that there must be an element of need as opposed to a mere desire or wish.

From the facts of the case, as mentioned hereinbefore in ray opinion, there is absolutely no doubt that the plaintiff had merely a desire or wish to start a business although there was no need therefor. If the plaintiff was in need of the premises in question there was absolutely no reason as to why he or his son could not make up their mind with regard to the nature of the business they intend to start nor there is any reason as to how the plaintiff thought that without any fund they could start a business.

True it is that the plaintiff in his evidence has stated that he intends to apply for a loan from the Bank but it is well known that such loan may not be granted in respect of each and every business. Further the plaintiff has not even made any attempt for grant of such loan which goes to show that he was not sure with regard to the nature of the business he intends to start.

Mr. Rameshwar Prasad no. 2, learned counsel appearing on behalf of the opposite party however, submitted that it was not necessary for the plaintiff to state the nature of the business which he intends to start. In this connection learned counsel has referred to Mattulal Vs. Radhe Lal, .

In the said decision while considering the argument advanced on behalf of the respondent that the landlord had not made preparation for starting of his new business, such as making arrangements for capital investment, approaching Iron & Steel Controller for the required permits etc. the Supreme Court held (sic) that It could not he said that the respondent did not bonafide require the Lohia Bazar shop for such new business. It was further held therein that it is difficult to imagine how the respondent could be expected to make preparations for starting the new business unless there was a reasonable prospect of his being able to obtain possession of the Lohia Bazar shop in near future. It has further been observed that it is a common and unfortunate failing of our judicial system that a litigation takes an inordinately long time in reaching a final conclusion and then also it is uncertain as to how it will end and with what result and unless the respondent could be reasonably sure that he would within a short time be able to obtain possession of the shop and start a new business, it would be too much to except from him that he should make preparations for starting the new business. In the said decision it has further stated that indeed from a commercial and practical point of view, it would be foolish on his part to make arrangements for investment of capital, obtaining of permission and receipt of stocks of Iron and Steel materials when he would not know whether he would at all be able to get possession of the shop in question.

However in the said decision even the Supreme Court has clearly laid down that the word ''reasonable requirement'' postulates that there must be an element of need as opposed to a mere desire or wish and the landlord must show that he essentially requires the non-residential accommodation for the purpose of starting or continuing his own business.

From a perusal of the said decision it is evident that the plaintiff landlord therein wanted to start his business of iron and steel material in the said shop. In the case before the Supreme Court the landlord had explained what sort of business he would catty and he had also the necessary fund therefor. In the peculiar facts and circumstances of the aforementioned ease, however, it was held therein that although the landlord did not make any preparation for starting his business it cannot be said that he had no requirement in raspect thereon. Clearly in the case before the Supreme Court the landlord has pleaded and established his bona fide need for the tenant premises.

However in the instant case the plaintiff is not sure with regard to the nature of the business which he intends to start nor has he requisite fund therefor.

In M/s Bihar Alloy Steels Ltd v. Hari Shanker WorahJ Ltd & anr. reported in 1987 PLJR 868, a Division Bench of this Court has held as follows :--

that the building is reasonably and in good faith required can be determined only by taking notice of the facts pleaded by the parties and even after it Is found by the court that the building is reasonably and in good faith required by the landlord, it has a duty to determine whether the reasonable requirement of such occupation will be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest or not. The legislature has chosen to qualify the word, ''satisfied'' by the expression substantially, with a view to keep the interest of the tenant protected by providing occupation to him of the building in part, and granting to the landlord occupation to meet his requirements.

Similarly in Smt. Sushila Devi & ors v Avinash Chandra & anr, reported in 1987 S.C.1150, the Supreme Court held as follows :--

While the landlord is entitled to the beneficial enjoyment of his property, the law still insists as a measure of social necessity that the Court should be satisfied a to the genuineness of requirement of the landlord u/s 14(1) (e) . It has (sic) keep in view that there is acute shortage of housing accommodation in the metropmlitan city of Delhi and therefore unless there is compelling necessity, there can be no order for eviction under S. 14(1) (e) is meant to subserve a public interest and to strike a just balance between the competing needs of the landlord the tenant. It is axiomatic that when a landlord applies for eviction of a tenant under S. 14(1) (e) of the Act, there is a duty cast on the Court to consider the question on merits on the basis of the evidence adduced by the parties. Again, there has to be in such cases an objective determination of the claim of the landlord. It is necessary to emphasize that unlike S. 115 of the Civil P.C., 1908 where the High Court''s power of interference in revision touches jurisdiction, the power of the High Court to interfere in revision under sub-sec (8) of S. 28 of the Act is much wider in scope and enables the High Court to satisfy itself as to whether the decision rendered by the Rent Controller on the facts in issue is in accordance with law, that is to say, in accordance with the well-settled principles.

Mr. Rameshwar Pd. no. 2 on other hand has placed strong reliance upon a decision of the Supreme Court in M/s Sri Raja Lakshmi Dyeing Works & ors v. Rangaswamy Chettiar reported in 1980 S. C. 1253. In the said decision the Supreme Court has held that the scope of the revisional jurisdiction of this court in terms of the Building Control Act is although wide, but while exercising the said power, the High Court should not interfere with the findings of fact merely because it does not agree with the same. In the said decision it has been held that a concurrent finding based on evidence to the effect that the landlord did not bonafide require the premises for his own use and occupation is not such a finding which can be touched by the High Court exercising jurisdiction u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

There is no dispute with regard to the aforesaid proposition of law. However the Supreme Court in the aforementioned decision did not enter into controversial question as to whether the bonafide requirement of the landlord is a mixed question of fact and law.In the said decision it was held that while exercising the revisional power it must be shown before the revisional court that there was taint of such unreasonableness resulting in miscarriage of justice.

It may be observed here that the Supreme Court in that case was considering the scope of revision application in terms of section 25 of the Tamil Nadu Buildings (Lease & Rent. Control) Act, 1960 where a revision applellate is filed after the same is decided by an appellate court. This decision, therefore, in my opinion has no application in the facts and circumstances of the present case.

Mr. Rameshwar Prasad no has FURther placed reliance upon a recent decision of the Supreme Court in Smt. Jahejo Devi and Others Vs. Moharam Ali, wherein in the facts and cireumstaces that case it was held that the High Court was unjustified in interfering with the concurrent finding of the fact since the lower court had not committed irregularity (underlining mine).

Such is not the position here In terms of section 14(8) of the Bihar Buildings (Lease, Rent and Control) Act a High Court is entitled to call for the records of the case for purpose of satisfying itself that an order u/s 14 thereof is according to the law and pass such order in respect thereof it may therein think fit and proper.

The jurisdiction of the High Court therefore is evidently wider than the revisional power of this court as conferred upon it u/s 115 of the Code of Civil Procedure.

In Vinod Kumar Arora v. Surjit Kaur reported in 1987 Vol. 3. S.C.C. 711 it was held as follows :--

Learned counsel for the appellant repeatedly contended that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court was not entitled to disregard those findings and come to a different conclusion of its own and cited in this behalf the decision of this Court in Hiralal Vallabhram v. Sheth Kasturbhai Lalbhai. The proposition of law put forward by the counsel is undoubtedly a well settled one but then it must be remembered that the rule would apply only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions. In this case when the government quarters occupied by the respondent consists of a single bedroom alone, it has been construed as comprising of three bedrooms; when the respondent wanted the entire house to be vacated by the two tenants so that she and her family members could occupy the whole house, the authorities have proceeded on the basis that the respondent was seeking recovery of possession of one hall alone for her residential needs; when the respondent had not demanded increase of rent, even as per the admission of the appellant, the authorities have proceeded on the basis that the respondent was not likely to forego the income derived by way of rent for the hall etc. In such circumstances it is futile to say that the Rent Controller and the Appellate Authority have rendered their findings on the basis of hard and irrefutable facts. On the contrary the findings have been rendered on either nonexistent or fictitious material. They cannot therefore be construed as findings of fact and once they cease to be findings of fact, they stand denuded of the binding force on the appellate or revisional court.

As would appear from my finding aforementioned that in this case there is no question of interfering with the finding of fact arrived at by the court below on the basis of evidence adduced on behalf of the plaintiff. In this case the question which arises for consideration is as to whether the trial court while arriving at the finding of fact has acted in accordance with law or not or in other words whether in view of the pleadings of the parties and evidences adduced the court below could have come to the conclusion that there was a reasonable or bonafide requirement on the part of the plaintiff with regard to his case that he wanted to start a new business for his son. It is well settled principle of law that no evidence is admissible which has not been pleaded. In this case the bonafide requirement of the plaintiff has to be judged on the touch stone of his pleadings and evidence adduced by him. Accepting the pleading of the plaintiff in his plaint and evidence adduced by him in toto, in my opinion, it cannot be said that he has reasonable requirement in respect of the ground floor of the premises in question.

It is now well known that even for the purpose of exercising the power u/s 100 .C. P. C. this Court although may not have the power to interfere with the findings of the fact but has always the power to see whether the inference from Such finding is in accordance with law or not.

In view of the fact that the plaintiff clearly stated that he or his son was not sure with regard to the nature of the business which they intended to start nor did they have any fund therefor, in my opinion, the finding of fact arrived at by the learned court below on the basis of this pleading and evidence must be held to be perverse and does not satisfy the requirement of section 11 (1) (c) of the Act. The plaintiff cannot be said to have proved his reasonable requirement because he had merely stated that he would decide the nature of the business after obtaining loan from the Bank. Such type of evidence in my opinion clearly gives rise to the irresistible conclusion that the plaintiff did not have genuine or bonafide requirement. He merely had a wish to do so in contradiction of his genuine need.

In this view of the matter the impugned order cannot be sustained so far as the same relates to the purported bonafide requirement of the plaintiff in relation to the ground floor of the suit holding is concerned.

Mr. Rameshwar Prasad no. 2, however, has drawn my attention to para 10 of his counter affidavit wherein it has been stated that the deponent has to start a business of miscellaneous articles of daily use in retail. This fact cannot be taken into consideration. The said counter affidavit has been filed without an application for amendment of the plaint and without an application for adducing additional evidence.

In view of the fact that this court in exercise of its power u/s 14(8) of the Act, as referred to hereinbefore is merely to tee that as to whether the learned court below has passed an order in accordance with law or not, cannot for the first time examine a disputed question of fact which has been alleged only in the counter affidavit for the first time.

If the plaintiff intended to bring any subsequent event to the notice of the revisional court, the same ought to have been done by filing an application for amendment of plaint and for adducing additional evidence in this regard which could have been considered on its own merit. If this court takes into consideration such an averment in the counter affidavit which has obviously been made by way of an after thought and dismiss the revision application on the basis thereof, great injustice will be done to the tenant-petitioner. This, in my opinion, is not permissible in law.

In fine it is held that the plaintiff has only been able to prove his requirement only in respect of a part of the suit premises and as such the said need would be fulfilled if the defendant petitioner in evicted only from the first floor of the building in question.

Taking into consideration the case from all its ramifications I am of the view that the impugned order must be set aside so far as the same relates to the decree for eviction of the tenant-petitioner from the ground floor of the building in question is concerned. The other part of the judgment of the learned court below, however, is affirmed. In the result this civil revision petition is allowed in part and the learned court below is directed to proceed and pass a decree in terms of proviso to section 11 (1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982.