Shree Bhagwan Singh vs Sri Ram Padarath Dwivedi and Another

S.B. Sinha, J.—This application is directed against the judgment and decree dated 29.1.1991 passed by Shri M. P. Shrivastava, Munsif, Jamshedpur in Eviction Suit No. 207/88, whereby and whereunder the said learned court decreed the plaintiffs'' opposite parties'' suit. The plaintiffs, who are two in numbers filed the aforementioned suit on 21.11.1988 for eviction of the defendant from the suit premises which consists of one room, two Verandahs and one kitchen only situated in Jugsalai in holding no. 62 appertaining to Ward No. 13, P.S. Jagsalia in the district of Singhbhum.

Separate requirements of the two plaintiffs were stated to be the reasons for filing the aforementioned suit for eviction. So far as plaintiff no. 1 is concerned, it was asserted that he was an employee of TISCO Ltd. He was in service till 1985 thereafter he was transferred to K. M. C. E. Ltd. Kumardubi and his assignment in that company came to an end on 27.7.1987.

According to the plaintiffs, plaintiff no. 1 has been living in a tenanted premises on payment of monthly rent of Rs. 800/-.

Plaintiff no. 2 is admittedly an employee of TISCO and allegedly although he was been allotted a flat at Dhatkidih by the Company but he has been paying exorbitant rent therefor.

In paras-6 and 8 of the plaint, it was stated as follows :--

That the plaintiff no. 1 was a senior Safety officer in TISCO and also at Kumardubi from where he retired on 27th June, 1987 and he all along lived in Bungalow with his family. He has got a son aged 22 years and two daughters and his wife in his family and they are all accustomed to live in a Bungalow quarter.

The plaintiff no. 2 is a Senior Metalorgist in Tisco and he is also all along living in a Bungalow quarter with his wife, two major sons and one daughter.

That the plaintiffs are two full brothers and they should have two separate spacious units with all facilities of water, electricity latrine etc. and it is not possible on their part to keep any tenants in their houses.

The defendant filed a written statement alleging inter alia therein that the plaintiffs have got several houses which are suitable for the purpose of residence of their family members.

According to the defendant, these facilities are not available in the suit premises and they in fact, do not want to live in suit holding.

It has been asserted that the place where the plaintiff no. 1 was residing is a more sophisticated area and better municipal services are available there. The defendant also asserted that the plaintiff no. 2 is hardly aged 45 years and he is to remain in the quarters of the Company for about 20 years more. The defendant further asserted that plaintiffs had also obtained a decree for eviction against one tenant, namely, Mr. B. Upadhyaya.

Upon the aforementioned pleadings of the parties, the learned court below framed the following issues :--

I. Is the suit maintainable in it''s present form ?

II. Does the plaintiffs require the suit premises for their bonafide necessity ?

III. Have the plaintiffs got any cause of action for the suit and they are entitled for the reliefs claimed in the plaint ?

The learned court below upon taking into consideration the evidences on record, decided all the issues in favour of the plaintiff.

The Learned Counsel for the petitioner has principally raised four contentions in support of this application.

The Learned Counsel firstly submitted that the plaintiffs sought to prove their case only be examining themselves and thus it cannot be said that they have been able to prove their bonafide requirement.

The Learned Counsel in support of this contention has relied upon M/s Bata Shoe Company Pvt. Ltd. Vs. Durga Prasad Gupta (1991 BBCJ, 192).

The Learned Counsel next contended that the learned court below approached the case from a wrong angle of view in so far as in paragraph 7 of the judgment came to the conclusion that the plaintiff no. 1''s requirement bonafide one and only after arriving at the said finding, he proceeded to consider the evidences adduced on behalf of the parties.

The Learned Counsel next contended that the learned court below further misdirected itself in so far as it failed to consider the Pleader Commissioner''s report (Ext.6); from a perusal whereof, it would appear that the plaintiff is in possession of a very big house consisting of 30 rooms and out of which 13 rooms apart from the kitchen etc. are vacant, but the learned court below did not consider that aspect of the matter only on the ground that the said premises were damaged ones.

The Learned Counsel also contended that from a perusal of the evidences of PW-1, it would appear that he had admitted that although two tenants vacated the tenanted premises but the same had not been occupied by the plaintiffs only on the ground that they Were in damaged conditions.

According to the Learned Counsel, as it has been brought on records that the plaintiff have other vacant premises which could have been taken possession of, the requirement of the plaintiffs cannot be said to be a bonafide one.

The Learned Counsel, in support of his contention has relied upon the decision in Amarjit Singh Vs. Smt. Khatoon Quamarain, .

It has further been pointed that the learned court below having held that the petitioner no. 2 has still ten years'' of service, took into consideration an irrelevant matter that he would require the suit premises after a few years. Learned Counsel further pointed that from a perusal of the impugned judgment, it would appear that the learned court below has not considered the statements made by the respondent''s witnesses at all.

Learned Counsel for the petitioner Mr. Prasad has further drawn my attention to a supplementary affidavit for the purpose of showing that the plaintiffs have already obtained a decree for eviction against another tenant.

Mr. Eqbal, the Learned Counsel appealing on behalf of the opposite party, on the other hand, submitted that the learned court below has taken into consideration all the materials brought on record by the parties to the suit. It has further been pointed out that the learned court below has passed the impugned judgment upon taking into consideration the Pleader Commissioner''s report for the purpose of arriving at a finding that the other premises which are vacant are not suitable for occupation by the plaintiffs.

Learned Counsel further submitted that it is for the plaintiffs to decide as to which of the premises would be suitable for their residence and the defendants do not have any say. in the matter. Learned Counsel in support of his contention has relied upon the decision reported in 1989 2 BLJ, 509 : 1988 PLJR 255 (Krishna Kant vs. Suniti Bala). Learned Counsel further submitted that only because certain premises are lying vacant, the same does not mean that the court would not pass a decree for eviction. In this connection, reliance has been placed by the Learned Counsel upon decision of the Supreme Court in Dr Saroj Kumar Das Vs. Arjun Prasad Jogani, .

Learned Counsel further submitted that scope of revisional power of this Court in terms of Sub-section (8) to Section 14 of the Act being limited, this Court should not interfere with the impuged judgement. Learned Counsel in this connection has relied upon a decision of the Supreme Court reported in Hiralal Kapur Vs. Prabhu Choudhury, .

The question which, therefore, arises for consideration is, as to whether the plaintiff''s plea of bonafide requirement of the suit premises for their own occupation has been proved.

Section 11(1)(C) of Bihar Building (Lease, Rent and Eviction) Control Act read as follows :

Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building of held by the landlord

From a bare perusal of the aforementioned provision it is evident that the requirement must be reasonable and in good faith.

In Jai Prakash Jalan Vs. M/s Rambilash Madan Gopal, reported in 1991(2) PLJR, 224, it has been held as follows :--

Bonafide means in good faith and genuinely. Bonafide need must be a genuine need for the landlord to occupy the premises. It is enough that he really means to occupy it. It must be genuine one. The expression ''reasonably required'' is also relevant and, thus the same has to he judged according to the dictates of reason and not on any capricious view or on sentiment. While judging the reasonable requirement of the plaintiff, his status, nature of work or vocation, status of his health and other similar factors should be relevant considerations.

In Sushila Devi and Others Vs. Avinash Chandra Jain and Others, , 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 as to the genuiness of requirement of the landlord u/s 14(1)(e). It has to keep in view that there is acute shortage of housing accommodation in the metropolitan city of Delhi and, therefore, unless there is compelling necessity, there can be no order for eviction under law. S. 14(1)(e) is meant to sub-serve a public interest and to strike a just balance between the competing needs of the landlord and the tenant. It is axiomatic that when a landlord applies for eviction a duty is 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.

In 1981 S. C. 1113 (M. M. Quasim Vs. Mahohar Lal), the Supreme Court has observed as follows :

The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and feller the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison d''ctre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not he sufficient to negative the landlord''s claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord''s greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb his very tendency the Rent Act

was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules as one of necessities of life --shelter -- and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe. In the Sociology of Law, edited by Pal Carlen, the author examines the rent and rent legislation in England and Wales and observes as under:

The prevailing paradigms of neo-classical economics and empiricist political theory have determined the conceptual insularity of law and legal institutions, with the result that they and other social events appear as random existences independent of there historical formation. The force of any theory of law must of course lie in its explanatory power, and this in turn depends on the wider image of social relations which produces it.

In 1970 Rent Control Journal (Smt. Kamla Sonie Vs. Ruplal Mehra) page 34, it was held that in determining whether the claim of the landlord is bonafide, the Court is entitled and indeed bound to consider whether it is reasonable.

In Amarjit Singh Vs. Smt. Khatoon Quamarain, the Supreme Court observed :

If the landlady or the landlord could have reasonable accommodation after his or her need arose and she by her own conduct disentitled herself to that property by letting it out for higher income, she would be disentitled to evict her tenant on ground of her need. The philosophy and principle of rent restriction law have nothing to do with the private exploitation of properly by the owners of the property in derogation of the tenant''s need of protection from eviction in a society of shortage of accommodation.

In Bata Shoe Co. Vs. Durga Pd. Gupta reported in 1991 BBCJ 192 a learned Single Judge of this Court upon taking into consideration various decisions of the Supreme Court held as follows :--

It has to be kept in mind that in terms of the provisions contained in Clause (c) what is necessary to find is not only that the building is reasonably required by the landlord for is own occupation but also that the requirement is in good faith. Therefore, the mere assertion of the plaintiff cannot be said to be conclusive. The distinction between ''desire'' and ''need'' of the plaintiff to himself occupy the premises has to be kept in mind and that can be done only when sufficient evidence is led on behalf of the parties showing, inter alia, that he was in a position on the basis of availability of fund and other facilities and expertise, to start a particular business.

On the other hand in the decision of the Supreme Court reported in Dr Saroj Kumar Das Vs. Arjun Prasad Jogani, upon which strong reliance has been placed by Mr. Eqbal, the Supreme Court set aside the judgment of the Calcutta High Court in a second appeal rendered by a learned single Judge on the ground that the availability of the alternative accommodation required by the appellant was reasonably suitable or not, was not decided.

In 1989 Vol 2 BLJ, 509: 1988 PLJR 255 (Krishna Kant Pandey Vs. Suniti Bala Sarkar) a learned Single Judge was considering the matter whether the decree for eviction of tenants sought for on the ground that portions of the building occupied by the tenants were required for personal use by the partnership firm i.e. the son and son-in-law of the landlord was bonafide or not. In that case, according to the landlord the entire first floor including a portion occupied by the tenants in+ former civil revision was required and the learned Judge upon taking into consideration the word ''reasonably'' and ''in good faith'' held that reasonable requirement of the landlord in good faith can be sub-divided in two head, ''purely personal'' and ''commercial'', in that case, it was further held that if the landlord required it for the economic benefit within the situation spelt the in that case, for within of his family, no tenant should be allowed to obstruct the right by the abuse of the process of the court and prolonged litigation.

In this case the subject matter of the suit was one room with veandaha on both sides thereof. It is not the case of the plaintiffs that there was any kitchen or any toilet attached to it. The plaintiffs have also not spilt out their total requirements in the plaint nor have they been able to show that the premise which are occupied by the tenants and against whom they have already filed a suit for eviction and/or having obtained decree and the same would constitute a complete unit. which would be suitable for their residential purpose.

From a perusal of the pleader commissioner''s report a copy whereof has been annexed with the civil revision application, it is evident that various premises are lying vacant for a long time. It is true that most of the premises are in damaged condition but upon a perusal of the said report it does not appear that the premises are in such a damaged condition which can be repaired only upon incurring a huge expenditure.

In respect of premises no. 7 as mentioned in the report which contains a pucca room and one kitchen and verandah and courtyard which were in occupation of tenant Vidya Sagar Sharma, a decree has been obtained by the plaintiffs. It also appears from the report of the pleader commissioner that premises no. 12 consists of one pucca room of 11 ft. X 10 ft. front verandah, 11 ft. X 6.6 ft inside courtyard and one store room 10 ft X 7 ft. It also appears that premises no. 14 contains a latrine. The other premises, which are vacant may become habitable upon making minor repairs therein.

From the judgment of the, learned court below, it appears that both the plaintiffs have admitted that there are two vacant portions in the first floor of the building, one in southern side and other in the eastern portion thereof wherein their father used to live a few years back. The learned court below in its judgement held as follows :--

considering the evidences of all the witnesses, report of the pleader commissioner as well as sketch map given in the report it appears that there are some rooms vacant in the suit premises but most of them are badly damaged and further they are scattered here and there. In other words if one room is vacant then its adjacent room is occupied by any tenant. In this circumstances, it is difficult for any one to have a vacant portion consisting of few vacant adjoining rooms. In this circumstances, if landlord wants a separate unit consist of several rooms then some of the tenants have to vacate their room.

If this be the contention of the plaintiffs, they were further required to show that upon eviction of the tenanted premises a separate, unit can be carved out where they can reside along with their family members.

It may be true that the plaintiffs have a choice as to where they should have their residence but as noticed hereinbefore the Supreme Court has categorically held that the choice of the plaintiff is not an unfettered one. The plaintiff''s choice to live at a particular place must also be reasonable and bonafide.

Further, as noticed hereinbefore, the learned court below has considered the requirement of both the plaintiffs for the purposes of passing the impugned decree for eviction although he has himself held that so far as the requirement of the plaintiff no. 2 is concerned, the same shall arise after a few years.

The requirement of a landlord for the purpose of passing a decree for eviction in terms of section 11(1)(c) of the Act must be a present need or a need which may arise in near future. A need which may arise years after filing of the suit cannot be said to be a need in respect whereof a decree for eviction on the ground of personal necessity can be passed.

From the discussions made hereinbefore, it is clear that the learned court below while passing the impugned judgment and decree for eviction failed to take into consideration various relevant facts and passed his judgment on some irrelevant consideration.

Mr. M.Y. Eqbal, however, submitted that this Court should not interfere with the finding of fact in exercise of its jurisdiction u/s 14(8) of the said Act. There cannot be any doubt that a pure finding of fact can not be inteferred with by this Court in exercise of its jurisdiction u/s 14(8) of the said Act.

However, it has been pointed by a Division Bench of this Court (of which I was a member) in Jai Prakash Jalan Vs. M/s Rambilas Madangopal reported in 1992 2 PLJR, 224 that the scope of Section 14(8) of the said Act is wider than the scope of revision u/s 115 of the Code of Civil Procedure. In that decision, the circumstances where this Court can exercise its revisional jurisdiction have been spelt out. The decision of this Court in the Jai Prakash Jalan''s case has recently been followed by another Division Bench of this Court in Bharati Pustak Kendra and Others Vs. Chhedi Lal Daruka .

In this view of matter the impugned judgment can not be sustained. This Civil revision Application is, therefore, allowed and the judgment and decree passed by the court below are set aside and the matter is remitted to it for a fresh consideration in accordance with law.

Before the court below, in view of the observations made hereinbefore, it would be open to the parties to lead further evidence. The court may also take into consideration the subsequent event, if any, and pass a judgment in accordance with law. It is expected that the learned court below will consider the desirability of disposal of the matter at an early date. In the facts and circumstances of the case, there shall be no order as to ousts.