IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No. 33 of 2008
Ram Niwas Agarwal ... Petitioner
Versus
Reshmi Devi and others ... Opposite Parties
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For the Petitioner : M/s. Manjul Prasad &
Ananda Sen, Advocates
For the Opposite Parties : M/s. V. Shivnath & P.A.S. Pati
Advocates
CORAM : HON'BLE MR. JUSTICE R. K. MERATHIA
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C.A.V. on 3.11.2009 Pronounced on 27.11.2009
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13. 27.11.2009
: This civil revision application has been filed under Section
14(8) of the Bihar Building (Lease, Rent & Eviction) Control Act,
1982 (the Act for short) against the judgment and decree dated
8.9.2008 passed in Eviction Suit No. 151 of 1993 by learned Sub
Judge- V, Jamshedpur.
2. I.A. No. 1226 of 2009 has been for condoning the delay of 3
days in filing this revision application.
On being satisfied with the ground, the delay was
condoned and the matter was heard at length for final disposal.
3. The plaintiffs-opposite parties (hereinafter to be referred as
the landlord) filed this suit for eviction on the ground of personal
necessity of the entire suit premises. The landlord pleaded that
plaintiffs No. 2 and 3 were unemployed and sons of plaintiff No. 1
were also unemployed due to lack of accommodation.
4. The main defence of the defendant-petitioner (hereinafter
to be referred as the tenant) was that the alleged requirement was
not reasonable and bona fide as the landlords were heavily
engaged in their respective businesses; that the suit was filed
claiming need of all plaintiffs, but the evidence led on behalf of
the landlord is confined to the personal necessity of plaintiff No. 3
only; that plaintiff No. 3 and his wife are income tax assessees, but
returns were not produced before the court to show that their
income was very low; that in the “Form of Heading of
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Deposition”, it is mentioned “where I am – Business (Temp
Transport)”; and that the question of partial eviction has not been
property considered by the trial court as the suit premises are in
two schedule i.e. Schedule A and Schedule B.
5. The parties led oral and documentary evidence. The trial
court framed IX issues. There is no dispute with regard to Issue
No. V, regarding the relationship of landlord and tenant between
the parties. Regarding Issue No. VI- whether the landlord requires
the suit premises reasonably and in good faith, the trial court held
that the landlord proved the bona fide and reasonable
requirement of the suit premises. Regarding Issue No. VII-
whether partial eviction will satisfy the need of landlord, the trial
court held that the decree of partial eviction will not fulfill the
need of the landlord as the entire suit premises is required for
their own use. Accordingly, the suit was decreed against which
this civil revision application has been filed.
6. The landlord pleaded in Paragraph-10 of the plaint that
plaintiffs No. 2 and 3 and the sons of plaintiff No. 1 were
unemployed due to lack of accommodation, but in Paragraph-12
it was specifically pleaded that plaintiff No. 3 could not start any
business due to lack of accommodation; and the suit premises is
suitable for starting business. The evidence adduced on behalf of
the landlord support their case. The landlord also proved that suit
premises was suitable for the requirement. D.W. 2 (the tenant) has
admitted that he was present when Pleader Commissioner
inspected the suit premises. He further said that he does not have
any proof to show that the landlords have let out other portion of
the premises to the tenants. He admitted that he has several
premises in his possession. He further admitted that he cannot
prove that plaintiff No. 2 and 3 are engaged in iron scrap
business.
7. It is settled position that for proving the personal necessity,
the landlord is not required to sit idle during the period of
litigation (See (2005) 8 SCC 252 and 2009 (3) JCR 465 (Jhr.) In the
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case reported in AIR 2003 SC 532 Akhileshwar Kr. & Ors. v.
Mustaqim & Ors., it is, inter alia, observed that even if the
person, who requires the premises, is engaged in some business, it
does not mean that he should not start his own independent
business. Moreover, the tenant could not prove that plaintiff No. 3
is settled in any business activity. Further, the case of the
landlords of personal necessity cannot be rejected on the ground
that plaintiff No. 3 and his wife are income tax assessees. In the
absence of order of court, directing Plaintiff No. 3 to produce his
income tax return, the tenant cannot complain that he did not
produce the Income Tax Returns.
8. Now the question of partial eviction. It was said in
Paragraph-12 of the plaint that the entire shop and godown were
required, but it was not denied and nothing was said in the
written statement on this aspect. The landlord proved that the
entire premises was required. The trial court appointed Pleader
Commissioner to examine this aspect. The court considered the
Pleader Commissioner’s report (Ext. 4). It appears that the
frontage of the shop (Schedule A) is about 11.5 ft. and the depth is
about 28.5 ft. through which only the godown (Schedule B) can be
accessed which is 12ft. X 18 ft. The Pleader Commissioner has
clearly stated that except the shop, there is no other way to enter
inside the building.
9. Furthermore, it has been held in Paragraph-12 of the
Division Bench Judgment reported in 1985 PLJR 390 Mrs. Veena
Rani v. Mrs. Ishrati Amanullah that the power of partial eviction
cannot be exercised in a manner as if the court is to partition the
building in question between two co-sharers. It may also be noted
that nothing has been said by the tenant in the written statement
on the aspect of partial eviction nor any evidence has been led by
him on this aspect. In this connection Paragraph-11 of 2001 (1)
PLJR 580-Tarun Kumar Gupta v. Parwati Devi may be seen.
Further, it was held in the case reported in 1993(1) PLJR Page 87 –
M/s. Bata India Ltd. v. Dr. Md. Qamruzzama that the landlord
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cannot be saddled with the onus of proof regarding partial
eviction. In Para-6 it has been held as follows:-
“Para-6. ………………. In our opinion, the
landlord cannot be saddled with the onus of proved in
this regard. He having proved that he requires ‘the
building’ which means the whole suit premises, he
cannot be expected or asked to prove by evidence that
his need can be satisfied by part eviction. That will
amount to asking him to prove the negative. In our
opinion, once the landlord has proved the need of the
premises, onus shifts on the tenant. The expression ”
and the tenant agrees to such occupation” strengthens
the view that while holding enquiry on the question of
partial eviction it is the tenant who has to express his
readiness and willingness for part occupation of the
premises and to show that the plaintiff’s need can be
substantially satisfied by evicting him from only part
of the premises and allowing him to continue in
occupation of the rest of it. No part of the defendant’s
evidence on the point of partial eviction was brought
to our notice we thus fail to understand as to how the
petitioner can assail the finding on the question of
partial eviction on the ground that there is no specific
evidence on the point.”
The Judgment of Bata India Limited (supra) was followed
in the case of Food Corporation of India v. Vishun Properties
and Enterprises & Ors. reported in 1995 BBCJ 711 and the S.L.P.
against the said decision was dismissed by the Supreme Court.
10. After hearing the parties and going through the records, I
am satisfied that the trial court has considered the respective
cases and evidence brought on record by the parties in right
perspective with regard to the issues of necessity and partial
eviction.
In the result, I do not find any merit in this civil revision
application, which is, accordingly, dismissed. The impugned
judgment and decree is affirmed. The tenant is directed to
handover the vacant possession of the suit premises to the
landlord within sixty days failing which they will be at liberty to
get it vacated through the process of the Court at the cost of
petitioner.
MK/AFR (R. K. Merathia, J)