JUDGMENT
S.K. Katriar, J.
Page 0744
1. The defendants are the appellants against the judgment of affirmance arising out of an eviction suit. The suit was instituted for eviction of the defendants from the suit premises which was allowed by the judgment and decree dated 31.8.1995, passed by the learned 3rd Munsif, Arrah, in Eviction Suit No. 259 of 1992 (Shankarjee Prasad and Ors. v. Munna Sah and Ors.), on the ground of personal necessity. The defendants’ appeal has been dismissed by the impugned judgment and decree dated 15.2.2003, passed by the learned 5th Additional District Judge, Bhojpur, Arrah, in Title Appeal No. 60 of 1995 (Munna Sah v. Shankar Jee Prasad and Anr.), whereby he has held that the appeal is not maintainable in law for the reason that the defendants’ remedy lay in terms of Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’). Hence this appeal at the instance of the defendants. We shall go by the description of the parties occurring in the plaint.
2. According to the plaint, plaintiff No. 1 (respondent No. 1 herein) is the Dewar, and plaintiff No. 2 (respondent No. 2) is the Bhabhi. The husband of plaintiff No. 2 had Page 0745 taken Shop No. 7 on rent from its owner for running his business. Plaintiff No. 1 had to be settled in life and it was decided that he should set up an independent business. Therefore, the plaintiffs purchased Shop No. 7 as well as the adjoining Shop No. 6 by a registered deed of absolute sale dated 21.11.1991, with the intention that plaintiff No. 1 will set up his independent business in Shop No. 6. It is their further case that Shop No. 6 had been let out in 1980 by the vendors to the defendants where they have been running their business. This was followed by the instant suit for eviction of the defendants from shop No. 6 on the ground that they need it for personal use and occupation, namely, for plaintiff No. 1 to set up his independent business. The suit was instituted on 15.12.1992. In view of the size of Shop No. 6, (the suit property), partial eviction will not serve the personal necessity of the plaintiffs. Their further case is that the defendants have purchased the adjoining Shop No. 5 by registered deed dated 26.3.1992, where they can shift their business.
3. On the other hand, the case of the defendants is that the plaintiffs do not need the suit property for personal necessity and the suit has been instituted only to evict them.
4. The suit was decreed by the learned trial court who held that the husband of plaintiff No. 2 is running his business in Shop No. 7, which was initially taken on rent from the erstwhile owner which he purchased by the aforesaid deed of absolute sale dated 21.11.1991. He has further found that the plaintiffs purchased shop Nos. 6 and 7 from the erstwhile owner by a registered deed of absolute sale dated 21.11.1991. Plaintiff No. 1 intends to set up his independent business in Shop No. 6 which the plaintiffs need bona fide for personal necessity. He has also found that partial eviction will not serve the purpose of personal necessity of the plaintiffs.
5. The defendants preferred appeal. The learned lower appellate court has held that, in view of the position that the suit was filed on the ground of personal necessity in terms of Section 11(1)(c) of the Act, it had to be tried as per the summary procedure prescribed by Section 14(7) of the Act which was not followed, and was erroneously tried as per the detailed procedure. He has, therefore, held that the defendants ought to have preferred a civil revision application before the High Court in terms of Section 14(8) of the Act and the appeal before him was not maintainable. He has also found that the defendants have purposely and with a mala fide motive preferred the appeal to prolong his continuance in the suit premises and his conduct before the learned court of appeal below was only to prolong the disposal of the appeal. Hence this appeal at the instance of the defendants.
6. The present appeal has been heard at length and on a number of days. Learned Counsel for the defendants (appellants) initially tried to assail the validity of the impugned judgment, inter alia, on the ground that the appeal was really maintainable and should have been disposed of on merits. On the other hand, learned Counsel for the plaintiffs supported the impugned judgment and submitted that the appeal was not maintainable and the defendants are acting mala fide in various ways to prolong their continuance in the suit premises. He further submitted that the present appeal is not maintainable and the learned court of appeal below was right in concluding that a civil revision application was alone maintainable in terms of Section 14(8) of the Act, The present appeal in this Court is not maintainable and is in fact not bona fide.
7. After arguments at length, learned Counsel for the parties submitted in one voice that this Court may itself examine all the issues of facts and law to save the parties Page 0746 from further harassment. The defendants submitted that they run the risk of dismissal of this appeal on the ground of maintainability in which case civil revision may be barred by limitation. He also submitted that the civil revision as well as the present appeal lie before a Single Judge of this Court. On the other hand, the plaintiffs submitted that if it is held that the appeal before the learned District Judge was maintainable, then it may necessitate remand to the learned court of appeal below. Counsel for both sides further submitted that it has been held by this Court in the case of Most. Sushila Devi and Ors. v. Sri Lakhan Lal Sah and Ors. reported in 2004 (1) P.L.J.R. 752, that the power conferred on this Court in terms of Section 14(8) of the Act is wider than the revisional powers under Section 115 of the Code of Civil Procedure. The High Court in second appellate jurisdiction is in appropriate cases, not precluded from appreciating the evidence and determine the issues. The same has to be read with the provisions of Order-42, Rule 1, and Order 41 Rule 24 of the Code. Section 103 of the Code is set out hereinbelow for the facility of quick reference:
103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-
(a) which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.
They have relied on the following reported judgments:
(1) (Balai Chandra Hazra v. Shewdhari Jadav);
(ii) 2001 (1) P.L.J.R. 309 (Krishna Prasad v. Gopal Prasad and Ors.).
8. It is further jointly submitted that the following reported judgments are to the effect that it is open to the High Court in second appellate jurisdiction to re-appreciate the evidence and come to independent findings of facts to terminate the litigation and save the parties from harassment.
(i) (Sundra Naicka Vadiyar and Anr. v. Ramaswami Ayyar);
(ii) A.I.R. 1998 S.C. 427 (Smt. Mehrunnisa and Ors. v. Smt. Visham Kumari and Anr.);
(iii) (Ishwar Dass Jain v. Sohan Lal);
(iv) 1996 (1) P.L.J.R. 483 : 1996 B.B.C.J. 99 (Moti Koeri and Anr. v. Mangaru Koeri Mangru Mahto and Ors.);
(v) (Haquik Mian v. Rajendra Prasad and Ors.).
9. I have perused the materials on record and considered the submissions of both sides. Learned Counsel for the parties have jointly submitted that they give up their contention with respect to maintainability of the proceedings at different stages, namely, the court of appeal below, the present appeal, or a civil revision application in this Court in terms of Section 14(8) of the Act. They have instead jointly submitted that the matter may instead be examined on merits. They have rightly submitted that, in an appropriate case, it is open to this Court in second appellate jurisdiction to re-appreciate the evidence and record fresh findings of facts provided the evidence on record is sufficient. It is permissible in view of the provisions of Section 103 read with Order 41, Rule 1, and Order 41, Rule 24 of the Code. Learned Counsel for the parties have rightly relied on the judgment of the Supreme Court in Balai Chandra Page 0747 Hazra V. Shewdhari Jadav (supra) as well as the judgment of this Court in Krishna Prasad v. Gopal Prasad (supra). I am convinced that the evidence on record is sufficient to determine the issues necessary for the disposal of the appeal. The same have not been determined by the learned court of appeal below. Remitting the matter back to the lower appellate court will only result in prolonging the litigation to the harassment of the parties. A civil revision under the provisions of Section 14(8) of the Act may be barred by limitation in terms of Section 5 read with Section 14 of the Limitation Act. Furthermore, it is well settled that the scope of a revision application in terms of Section 14(8) of the Act is wider than the one under Section 115 of the Code of Civil Procedure. I, therefore, proceed to appreciate the evidence as a court of facts to do complete justice to the parties in order to terminate the litigation expeditiously by effective adjudication.
10. Learned Counsel for the defendants has submitted that the plaintiffs have failed to prove that there was relationship of landlord and tenant between plaintiffs and defendant No. 2. In his submission, the plaintiffs have set up the case that defendant No. 2 is the real tenant but the plaintiffs have failed to prove the relationship of landlord and tenant between the plaintiffs and defendant No. 2, and cannot claim any relief against defendant No. 1. Even if the evidence on record suggests that defendant No. 1 is the tenant, no relief can be granted because the pleadings are not to that effect. He next submitted that the plaintiffs do not need the suit premises bona fide. He also submitted that partial eviction will serve the purpose of the plaintiffs. The area of the suit premises is 24′ X 20′. He also submitted that the learned trial court dealt with this issue in a superficial manner. Therefore, the issue of partial eviction may be remitted to the learned trial court for further evidence on the point and a fresh finding. He relies on the following reported judgments:
(i) 1998 (2) P.L.J.R. 582 (Nagendra Prasad Barnwal v. Jitendra Prasad Barnwal.
(ii) 1996 (1) B.L.J. 523. (Smt. Panna Devi and Anr. v. Atma Ram Kushan).
11. Learned Counsel for the plaintiffs submitted that they have been able to prove the relationship of landlord and tenant between the parties. Plaintiff No. 1 (Shankarjee Prasad) is the Dewar, and plaintiff No. 2 (Chandrawati Devi) is the Bhabhi. Defendant No. 1 (Munna Sah) is the son and defendant No. 2 (Visheshwar Prasad Sah) is the father. He next submitted that the evidence of the parties clearly establish personal necessity of the plaintiffs. Misjoinder of parties will not result in dismissal of the suit because the appropriate person has been impleaded as defendant. He relied on the provisions of Order-I, Rule 9 of the Code. The husband of plaintiff No. 2 is running his business in Shop No. 7. Plaintiff No. 1 has to be settled in life and, therefore, the family has purchased Shop No. 6 to enable him to set up his business. The defendants have purchased the adjoining Shop No. 5 which is vacant. He next submitted that the suit premises is a fairly small shop and partial eviction cannot serve the plaintiffs’ purpose.
12. It thus appears to me that the following issues arise for consideration:
(i) Whether or not relationship of landlord and tenant existed between the parties?
(ii) Whether or not the plaintiffs need the premises bona fide for personal necessity?
(iii) Whether or not the defendants are the owners of the adjoining shop No. 5? and
(iv) Whether or not partial eviction will serve the needs of the plaintiffs?
Page 0748
13. P.W.1 (Shankarji Prasad) is plaintiff No. 1 and has deposed to the effect that he purchased shop No. 6, the suit property, from Mister Ahmad and the co-owners on 21.11.1991. The plaintiffs are traditionally traders and businessmen. Plaintiff No. 2 (Chandrawati Devi) purchased shop No. 7. Prior to the purchase, her husband, Birendra Prasad (full brother of plaintiff No. 1) had taken it on rent from the previous owners and was running his business. Plaintiff No. 1 needs shop No. 6 to set. up his independent business. He is still running his business in a rented premises which is very small measuring 6′ x 6′ owned by one Bibi Shahjahan who is pressing him to vacate the same and says that he should shift to his own -shop. The landlady says that her son intends to set up his own business in the shop let out to plaintiff No. 1. Defendant No. 2 (Bisheshwar Prasad Sah) has purchased the adjoining shop No. 5 in the name of his wife by a registered sale deed dated 26.3.1992, is lying vacant, and is being used as his godown. Defendent No. 2 is running a business at his house in a huge premises. His purpose will be served only if he gets whole of shop No. 6 which measures 13′ X 9′.
13.1) P.W.2 (Ram Naresh) has deposed to the effect that he knows both the sides. Defendant No. 2 (Bisheshwar Prasad Sah) had three shops in Ram Nagar, the third of which is locked. The plaintiffs are traditionally traders and they need the suit premises for the business of plaintiff No. 1.
13.2) P.W.3 (Gopal Prasad) has deposed to the effect that he knows both the sides. The defendants have purchased the adjoining shop No. 5. They have two other shops wherein they are running their business for 40 years. Plaintiff No. 1 needs the suit premises to run his own business.
13.3) P.W.4 (Bishwa Nath Prasad) has deposed to the effect that plaintiff No. 1 needs the suit property for his own purpose and the purpose of plaintiff No. 1 will not be served if he gets part of the suit property.
13.4) P.W.5 (Birendra Kumar) is the husband of plaintiff No. 2, and full brother of plaintiff No. 1. He has deposed to the effect that he has purchased shop Nos. 6 and 7. Shop No. 6 has been purchased for plaintiff No. 1. He (P.W.5) was tenant in shop No. 7 before he purchased it, wherein he is running his own business. Defendant No. 2 is tenant in shop No. 6. Defendant No. 2 (Bisheshwar Prasad Sah) has purchased the adjoining shop No. 5 in the name of his wife (Shanti Devi). The three shops are similar. The defendants have other business also. Portion of shop No. 6 cannot serve the purpose of plaintiff No. 1.
13.5) P.W.6 (Ram Briksh Rai) is a Clerk in the Registration Office at Ara. He is an official witness and has produced the original sale deed dated 21.11.1991.
14. D.W.1 (Bisheshwar Prasad Sah) is defendant No. 2. He has deposed to the effect that his son is running his business in shop No. 6. He has further stated that the terms and conditions of payment of rent is in writing. He has further stated that plaintiff No. 1 runs his business in a rented premises. The suit property is 9′ x 9-1/2′. Shop Nos. 5 and 6 have the same design. He has purchased shop No. 5 to set up his business.
14.1) D.W.2 (Chandramani Tiwary) is a Reader in the Hindi Department. He knows both the sides who along with D.W.2 hail from the same village. Defendant No. 2 (Munna Sah) is aged 20-22 years and running his business in the suit property.
Page 0749
14.2) D.W.3 (Triyogi Nath Gupta) is the Sarpanch of the village and has deposed to the effect that he knows both the sides. Defendant No. 1 is running his business in the suit property. Birendra Prasad has purchased the suit property for the business of plaintiff No. 1.
14.3) D.W.4 (Tarkeshwar Prasad Srivastava) is a Lawyer’s Clerk. His deposition is not of much consequence.
14.4) D.W.5 (Lakhan Choudhary) is a local resident and Cultivator. He has deposed to the effect that he knows both the sides. D.W.1 is running his business in the suit property. Munna is not separate from his father. Bisheshwar (defendant No. 2) arranges stocks of rice and Munna (defendant No. 1) sells the same.
14.5) D.W.6 (Sheo Kumar Singh) is a Lawyer’s Clerk. His deposition is not of much consequence.
14.6) D.W.7 (Moda Ram) is a Cultivator. He knows both the sides. The shops purchased by the plaintiffs and the defendants are side by side.
14.7) D.W.8 (Hari Kishore Prasad) is a local resident, is a businessman, and is brother of defendant No. 2. Defendant No. 1 is his nephew who is aged 20-21 years. Plaintiff No. 1 is running his business in a tenanted shop owned by Bibi Shahjahan. Defendants are not using shop No. 5 for business premises. Plaintiff No. 1 has purchased the suit property for his own business.
14.8) D.W.9 (Md. Illiyas) is a School teacher. His deposition is not of much consequence.
14.9) D.W.10 (Ram Kishun Singh) is a Lawyer’s Clerk. His deposition is not of much consequence.
14.10) D.W. 11 ( Anil Kumar Gupta) is a Clerk in the Registration Office. He is an official witness and has produced the original lease deed.
14.11) D.W.12 (Jai Narain Singh) is a Lawyer’s Clerk. His deposition is not of much consequence.
15. It thus appears to me on a perusal of the evidence on record that P.W.1 & P.W.5 have deposed to the effect that plaintiff No. 2 had taken shop No. 7 on rental from the erstwhile owner where the husband of plaintiff No. 2 was running his business, and continues to run his business after she (plaintiff No. 2) has purchased the same. P.W.1 has further deposed to the effect that he (plaintiff No. 1) has to properly settle in life. P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, D.W.1, and D.W.8 have deposed to the effect that he (plaintiff No. 1) needs shop No. 6 to set up his independent business. He is still running his business in a rented premises which is very small measuring 6′ x 6′ and the land lady is pressing him to vacate the same for the twin reasons that he (plaintiff No. 1) now owns a premises of his own and her son wants to start his business therein. The combined effect of the deposition of P.W.1, P.W.5 and D.W.3 is that the plaintiffs purchased Shop Nos. 6 and 7 by a registered deed of absolute sale dated 21.11.1991 so that the husband of plaintiff No. 2 runs his business in shop No. 7, and plaintiff No. 1 is able to set up his independent business in Shop No. 6. P.W.6, a Clerk of the Registration office, has produced the original sale deed dated 21.11.1991. D.W.1, D.W.2, D.W.3, and D.W.5, have deposed to the effect that the defendants have taken shop No. 6 on rent from the vendors of the plaintiffs way back in 1982 Page 0750 or so which is now needed by the plaintiffs for personal necessity. D.W.1 has deposed to the effect that the terms and conditions of lease between the parties are in writing. D.W.11, Clerk of the Registration Office, has produced the original lease deed. The combined effect of the deposition of P.W.1, P.W.2, P.W.3, D.W.5 & D.W.8 is that the defendants have purchased the adjoining Shop No. 5 by a registered deed of absolute sale dated 26.3.1992 in the name of wife of defendant No. 2, and mother of defendant No. 1, which is lying vacant. D.W.1 (defendant No. 2) has deposed to the effect that he has purchased shop No. 5 to set up his own business. The defendants can conveniently shift their business to Shop No. 5. Shop Nos. 5, 6 and 7 are adjoining shops. I thus hold that the evidence of the parties establish relationship of landlord and tenant between the parties. I further hold that plaintiff No. 1 needs the suit premises bonafide for personal necessity.
16. In so far as the question of partial eviction is concerned, there is minor variation in the evidence of the parties as to the measurement of the suit property. P.W.1, P.W.4, and P.W.5 have deposed to the effect that the suit property is small and partial eviction cannot serve their purpose. P.W.1 as well as D.W.1 have stated to the effect that that it measures 13′ x 9′. It is manifestly a small premises. Furthermore, the defendants have no where set up their case before the learned trial court that partial eviction is possible. In fact, they have not cross-examined the plaintiffs’ witnesses at all on this point who have unequivocally deposed to the effect that, in view of smallness of the area of the suit property, partial eviction will not serve the plaintiffs’ purpose. P.W.1, P.W.4, P.W.5 & D.W.1 have deposed to the effect that the suit premises is quite small and partial eviction cannot serve the purpose of plaintiff No. 1. In one sense, the question of partial eviction does not arise because the defendants are owners of the adjoining Shop No. 5, which is locked up and is lying idle where the defendants can most conveniently shift their business. It appears that Shop Nos. 5 and 6 have a common wall. P.W.1, P.W.5, & D.W.7 have deposed to the effect that shop Nos. 5, 6 and 7 are identical and are side by side. In that view of the matter, I conclude that partial eviction will not serve the purpose of the plaintiffs.
17. In the facts and circumstances of the case, I am convinced that the defendants own an adjoining premises, purchased specifically for the purpose, where they can conveniently transfer their business and are needlessly harassing the plaintiffs. Paragraph No. 10 of the impugned judgment is set out hereinbelow for the facility of quick reference:
10. In course of argument the learned Counsel for the tenant-defendant has further contended that if this Court finds and holds the appeal to be not maintainable then it may permit him to take back the memo of the appeal in order to file revision before the competent court but in view of the fact that this appeal was preferred in the year 1995 and since then it has been pending and even when the case was listed for hearing and the learned Counsel for the tenant-defendant was called out for hearing then time and again adjournment was sought on one ground or other, obviously to prolong the disposal of this appeal, and when ultimately compelled to argue the appeal then contested the same taking plea of deviation, in recording of evidence as ground for maintainability of appeal then all these facts go to show that the tenant Page 0751 -defendant has not bonafidly filed this appeal and in that view of the matter the aforesaid prayer of the learned Counsel for the tenant-defendant can not be allowed. The facts and other attending circumstances available on the record show that the tenant-defendant has been successful in dragging the landlord-plaintiff in a long term litigation whereas the latter had required the suit premises for personal necessity and the learned court below holding the said necessity to be good one had decreed his suit.
(Emphasis added)
18. In the result, the appeal is dismissed with costs throughout. The suit is decreed and the defendants are liable to be ejected from the suit premises.