JUDGMENT
S.B. Sinha, J.
1. This Civil revision application under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 is directed against the judgment dated 12th April, 1990 passed by Sri P.N. Lal Subordinate Judge in Title (Eviction) Suit No. 8/86 whereby and where under the said learned court decreed the plaintiff-opposite party’s suit for eviction on the ground of their personal necessity.
2. The plaintiff filed the aforementioned suit claiming inter alia the following reliefs:
(a) For a decree for eviction from the premises described in schedule of the Plaint be passed in favour of the plaintiff as against the defendant.
(b) For a decree for damage @ Rs. 100/- per day for the period from 1.4.1986 to the date of decree eviction.
(c) For the cost of the suit.
(d) For any other or further reliefs.
3. In the plaint it was contended that the property in suit which has been described in Schedule-A of the plaint has been purchased by the plaintiff from one Rajesh Kumar by registered sale deed dated 24.2.1986. According to the plaintiff the firm consisting of six partners and the aforementioned ‘Pathak Mansion’ had been purchased for the purpose of using the ground floor as the office of the firm with separate chamber of the partners and the first and second floor having six flats for the residences of the partners. The partners of the plaintiff-firm have no other building except the said ‘Pathak Mansion’. It has been further contended that the defendant has a very big palacial double storied building adjacent to the suit premises and it has rested out 8 to 10 shops in the ground floor.
4. Admittedly, the petitioner is in occupation of a portion of the aforementioned Pathak Mansion on a monthly rent of Rs. 800/-.
5. It appears that upon receipt of the summons on 7.10.1986, the defendant filed an application seeking leave to contest the suit. In the said application, it was specifically mentioned that although the suit was a composite one claiming a decree for eviction as also damages, but the said petition has been filed in order to avoid any future complication.
6. Unfortunately, despite the said assertion, the learned court below did not specifically determine as to whether in view of the nature of the suit, the procedure under Section 14(4) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (to be referred to and called for the sake of brevity as the said Act) would be followed or the procedure of an ordinary suit would be followed.
7. From the order sheet dated 4.2.1988, however, it appears that the plaintiff did not object to the petitioner’s prayer for seeking leave to contest the same and as such the petitioner was granted leave to contest the suit and the petitioner was directed to file written statement. It appears that the petitioner filed a written statement on 19.2.1988 which was the date fixed in terms of the court’s order dated 4.2.1988. The said written statement is an elaborate one and therein the petitioner has traversed all the allegations name in the plaint.
8. In view of the rival contentions raised by the parties in their respective pleadings, five issues were framed on 5.8.1988 which appears to have been recast at the time of the judgment in the following terms:
1. What the suit is maintainable as framed ?
2. Whether the plaintiff has any cause of action for the suit?
3. Whether the suit is hit under Section 69 of the Indian Partnership Act?
4. Whether the plaintiff requires the suit premises in good faith for its personal use and occupation?
5. Whether the partial eviction of the defendant from the tenanted premises will meet the requirement of the plaintiff?
6. Whether the plaintiff is entitled to a decree as prayed for?
7. To what relief, or reliefs, if any is the plaintiff entitled?
9. Before the learned court below, it appears that both the parties have adduced their evidences and also produced necessary documents.
10. By reasons of the impugned judgment, the learned court below granted a decree for eviction and observed that the plaintiff is also entitled to a decree for damages for use and occupation of the suit premises from the date of filing of the suit till the actual vacation @ Rs. 800/- per month which was agreed rent to be determined by a separate proceeding after filing of proper court fees. The decree passed by the court below, therefore, was confined only to the passing of a decree for eviction.
11. Mr. R.K. Marathia, learned Counsel for the petitioner submitted that the requirement of the plaintiff appears to be not bonafide inasmuch as the partnership firm will not require separate chambers and separate flats for each of its partners.
Mr. Marathia has further drawn my attention to the fact that at least one of the partners has a residential house at Giridih and has also a flat at Bombay. Learned Counsel, therefore contended that the learned court below was not correct in passing a decree for eviction on the ground that the plaintiff requires the suit premises bonafide and for its occupation. It has further been stated that the partnership deed has also not been filed.
12. Admittedly, the defendant is in occupation of only a portion of the entire Pathak Mansion. The plaintiff has categorically stated in the plaint that it has taken steps to file suit against all the tenants residing in the said building so that the entire building may be brought to use by the plaintiff-firm.
13. P.W. 1 Biswanath Prasad who is the Managing Partner of the plaintiff-fire in his evidence, however, categorically stated that the suits have been filed against all the tenants who are occupying different portions of the suit building, but admitted that one flat in the first floor and three shop rooms are vacant.
P.W. 2 has stated that the partners have total 22 members in their family.
14. The defendant examined one witness Lakhmir Singh Sabrawal who is one of the partners of the defendant firm. In cross-examination in paragraph 8. of his deposition, this witness admitted that the Managing Partner of the plaintiff-firm Biswanath Prasad Shahbadi told him that the entire house was purchased by the plaintiff for his own business and for the residential purposes of the partners. He further admitted that he has not measured the vacant portion of the suit building. He further stated that he has document to show that he has retired from the partnership of his adjacent house but no such document was produced.
15. The plaintiff also produced some documentary evidence including the dead of sale dated 24.2.1986, the registration certificate of the plaintiff-firm. From the registration certificate of the plaintiff-firm granted to it under the provisions of the Indian Partnership Act, 1932, it appears that there are altogether six partners. It has come on evidence and which has been taken note of by the learned court below in paragraph 7 of his judgment that the plaintiff has a cinema business and hotel business at Dhanbad and the plaintiff has only one Guest Room attached to the cinema house.
16. Learned court below on analysis of the evidence on record came to the conclusion that the plaintiff has no other suitable accommodation for the purpose of carrying on business and for the purpose of residence of its partners. Learned court below has also taken note of the fact that as steps have been taken by the plaintiff firm for eviction of other tenants also, the plaintiff has proved its bonafide.
Learned court below further took into consideration that the portion held by the defendant-firm is only one room while the plaintiff requires more area for its use.
17. In view of the findings of fact arrived at by the learned court below, I am of the view that it cannot be said that the impugned judgment is not in accordance with law.
18. Before, however, parting with this case, it may be mentioned that evidently the learned court below did not apply its mind correctly to the procedure which should have been adopted in this case. As the learned court below by reason of his judgment has not passed any decree for damages and said that the quantum of damages would be considered in a separate proceedings upon payment of court fee by the plaintiff therefor, this Court is not interfering with the impugned judgment in view of the fact that the petitioner was not prejudiced thereby, although technically, the learned court below ought not to have initially adopted the procedure in terms of Section 14 of the said Act.
19. However, taking into consideration the fact that the firm defendant-firm has been running its business in the suit premises, in my opinion, in the interest of justice, the defendant should be given some time to vacate the suit premises.
20. In these premises, while affirming the judgment of the court below, it is directed that the plaintiff-opposite party shall not execute the decree up to July, 1991 if the petitioner files an undertaking before the learned court below by 15th Feb. 1991 that it would vacate the premises in question by the aforementioned date and further deposits all arrears of rent up to January, 1991 by the 28th of February 1991 and continue to deposit rent for the month of February onwards by the 15th of the next month succeeding before the executing court. Upon failure on the part of the defendant to abide by any of the conditions aforementioned it would be open to the plaintiff to execute the decree.
21. In the result, this civil revision is dismissed with the aforementioned direction. But there will be no order as to costs.
