IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.64 of 2010 SRI KAILASH RAM, SON OF LATE NEMCHAND RAM, AGED ABOUT 80 YEARS OLD, RESIDENT OF MOHALLA- PANKHA GALI, DULHATTA LANE, P.O. GAYA, P.S. KOTWALI, DISTRICT-GAYA. ……………………………………..DEFENDANT/PETITIONER. Versus SRI SARJU PRASAD, SON OF LATE KAMAL RAM, AGED ABOUT 57 YEARS OLD, RESIDENT OF MOHALLA- FATEHGANJ, P.O. GAYA, P.S. KOTWALI, DISTRICT- GAYA. …………………………………PLAINTIFF/OPPOSITE PARTY. ----------- For the Petitioner : Mr. Chitragupt Prasad, Advocate. For the Opposite Party : Mr. Ashok Kumar Keshri, Advocate. ----------- 9. 8.9.2010. This Civil Revision, filed under section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter to be referred to as “the Act”), is directed against the order dated 21st November, 2009 passed by the Munsif Ist, Gaya, in Eviction Suit No.14/2004 directing the defendant-petitioner-tenant to vacate the suit premises and deliver the vacant possession of the same to the plaintiff. The plaintiff filed Eviction Suit No. 14/2004 for eviction of the defendant-tenant from the suit premises, which is a shop and stands fully described in Schedule I of 2 the plaint appertaining to Holding No. 105(old)/124(new), Ward no. 3 at Mohall Purina Go down Road (Chagall Patti), P.S. Kowari, Town and District Gaya, which is 22 ft. in length from east to west and 6 ft. in width from north to south. Plaintiff’s case, in short, as set out in the plaint, is that he owned and possessed a double storied building situated at the place, as mentioned above, which consists of three shops of same size facing east. The defendant-petitioner being the tenant of the plaintiff occupies the middle shop on the ground floor on monthly rent of Rest. 2001/- from the month of June 1998 and runs a business of selling rice. Initially, such tenancy was created by virtue of unregistered written agreement for a fixed period of eleven months; however, after expiry of the aforesaid period due to cordial relationship between the defendant and the plaintiff, the defendant was allowed to occupy the suit premises as a tenant on month to month basis upon payment of agreed rent. Accordingly, the defendant remained tenant on payment of rent of Rest. 2001/- per month and rent receipts were being remitted by the plaintiff-tenant for each month. Thereafter the rent was enhanced to Rest. 2125/- per month and again Rest. 3 2200/-. It has been alleged by the plaintiff that the defendant paid rent to the plaintiff till 2004 and thereafter stopped payment of rent without any rhyme or reason. However, the suit has not been brought for eviction on the ground of default; rather the plaintiff has sought eviction of the defendant on the ground of bona fide requirement of suit premises. The case of the plaintiff is that he belongs to a family of business community and is running a small business of food grains in another shop adjacent to north of the suit premises, where in the south of the suit premises i.e. the third shop of the building, another tenant, namely, Manohar Ram, is running business. The plaintiff claimed that he has got five daughters and three sons and the entire family is dependent upon him. Even if the eldest son of the plaintiff, namely, Vanish Kumar, is capable of doing business, but he is sitting idle as due to paucity of space in the building in the market area he could not start his business. It has been stated that if his son joins the business of the father in the same shop it would not serve any purpose as all of them will have to maintain themselves on the income arising out of the small business. As such, it is claimed, that the plaintiff requested several times the defendant-tenant to vacate the suit premises. 4 The defendant, initially, assured the plaintiff that he will vacate the suit premises, but he failed to do so. Thus, it has been urged that the requirement of the suit premises is reasonable and bona fide for the benefit of the son of the plaintiff. The defendant-tenant in place of vacating the suit premises has filed Title Suit No. 36 of 2004 in the court of the Ist Munsif, Gaya seeking decree of permanent injunction. It has been claimed that since the defendant finally refused to vacate the suit premises on 22.09.2004, the present eviction suit has been filed. The defendant-tenant appeared and filed affidavit seeking leave to contest the suit and the same was granted by the trial court. In place of filing written statement the defendant had made a prayer that his affidavit itself be treated as his written statement. The defendant has raised several grounds including some regarding maintainability of the suit. It has been stated that the suit fails on the ground that the necessary party, i.e. the daughter of the plaintiff’s father has not been imp leaded as a party in the suit. The defendant refuted the claim of the plaintiff that his son Vanish Kumar is sitting idle, rather he claimed that the aforesaid son of the plaintiff is engaged in business of his father and is also doing 5 separate business of food grains in one of his shops situated in Mohall Fatehganj, Police Station Kotwali, District Gaya and that his business is flourishing day by day. The defendant has also stated that he has filed Title Suit No. 36 of 2004 in the court of the Ist Munsif, Gaya prior to filing of the instant suit and, thus, it is claimed that the present suit has been filed as a counter blast to his claim. It has also been stated that the defendant, since execution of Kirayanama dated 01.06.1998 for eleven months, is paying rent to the plaintiff and the plaintiff has taken advance of Rs. 15,000/-. Subsequently, the aforesaid affidavit has got amended by adding paragraph 7/A stating that the plaintiff, subsequently on 2nd August, 2006 had got a vacant possession of a shop, which was in occupation of Manohar Ram, but the plaintiff never tried to start a business in that shop. It has also been stated that the defendant’s family is dependent upon business, which is being run in the suit premises of the plaintiff and it would be very harsh upon him if he is to vacate the suit premises. The trial court upon consideration of the pleadings of the parties framed issues. The main issues framed by the trial court were as follows:- (i) Whether the plaintiff needed the entire suit 6 premises reasonably and in good faith for establishing the business of his son? (ii) Whether there is relation of landlord and tenant between the plaintiff and the defendant? (iii) Whether the defendant had excess month towards payment of rent of the suit premises? The plaintiff in support of his case produced eight witnesses and has also brought on record certain documentary evidence including rent receipts granted by him to the tenant, the Kirayanama, sale deed executed by the father of the plaintiff in favour of one Kamal Ram and other documents. The defendant on his turn has produced 12 witnesses and also brought on record certain documentary evidence. The trial court upon consideration of materials available on record as well as considering the rival submissions made on behalf of the parties came to the following conclusion:- (1) There is relationship of landlord and tenant between the parties; (2) The son of the plaintiff, namely, Avinash Kumar @ Banty is not doing any business independently; 7 (3) The plaintiff has succeeded in proving his case with regard to bona fide need of the suit premises; (4) Plaintiff’s requirement would not be satisfied or fulfilled by partial eviction of the tenant from the suit premises. I have heard learned counsel for the parties land perused the records of the case. Learned counsel for the petitioner submitted that the plaintiff’s son is doing a business of selling rice on the ground floor of his house, which is situated at Mohalla Fatehganj, Police Station Kotwali, District Gaya and he also helps his father in his business in the extra time, which has come in the deposition of the defendant witnesses specially D.W.11, Kailash Ram, the defendant himself. It has further been submitted that there is a vacant hall also in the residential house of the plaintiff, where the plaintiff’s son has engaged himself in running a business. Apart from the above, it has also been urged that during the pendency of the suit, another tenant Manohar Ram had vacated one shop, adjacent to the shop occupied by the defendant-petitioner and the plaintiff’s business could have well been established in that shop. Further contention was 8 that amount of Rs. 15,000/- was paid as security with the assurance that the same would be returned to the defendant- petitioner without any interest at the time of vacating the suit premises. Learned counsel appearing on behalf of the opposite party, on the other hand, submitted that the residential house of the plaintiff is situated in a lane where egress and ingress of the commercial vehicles is impossible. That residential house not being in the main market place of the food grains is not suitable for running such type of shop. That apart, it has also been urged that the defendant-petitioner could not produce any cogent evidence with regard to the fact that the son of the plaintiff is also engaged in the business. It has further been contended that even if it is assumed that the son is helping his father in the business that does not mean that he does not have right to raise his own business. It is admitted case that the plaintiff is running a business of sale of food grains, however, he requires the suit premises for engaging his son, namely, Avinash Kumar alias Banty in a separate business of sale of food grains. So far the issue raised by the petitioner with regard to another shop having been vacated by the tenant is concerned, that shop was not vacated rather 9 since the plaintiff was in dire need of money, the same was sold out to the tenant himself. Later on affidavit has been filed on behalf of the plaintiff-opposite party that he is ready to return Rs.15000/-, which was taken in advance by the plaintiff as security money. I do not find any force in the submissions raised on behalf of the defendant-petitioner. The court below has considered the entire evidence on record and has come to the conclusion that it could not be proved that the son of the plaintiff, namely, Avinash Kumar alias Bunty was engaged in another business and/or his residential house was also at a place which is known for commercial activities. If such premises where commercial vehicle even cannot enter would be very difficult for doing business in comparison to the premise situated in a commercial place known as food grains market. It is well settled that the landlord has a right to choose a suitable premises out of his buildings. If another shop, for which litigation is going on, has been sold out in favour of the tenant during the pendency of the suit as the plaintiff was in dire need of money, it cannot be assumed or held that the personal necessity of the plaintiff has fully been satisfied. 10 The trial court has also noticed that so far as another business allegedly being run by the son of the plaintiff, no cogent evidence could be brought in support of such contention by the defendant. Thus, this Court is of the opinion that the defendant could not point out any error in the finding recorded by the court below either with regard to the landlord and tenant relationship between the parties or with regard to the bonafide requirement of the plaintiff of the suit premises. The court below has also dealt with the question of partial eviction and has stated that the plaintiff and the defendant both have agreed that the suit premises being 22 feet long and 6 feet wide if divided into two, it will not remain useful either for the plaintiff or for the defendant. Thus, it has been held that the necessity of the plaintiff cannot be satisfied by the partial eviction of the suit premises. I do not find any error in the aforesaid finding of the court below also. As a result, this Civil Revision being devoid of any merit is, accordingly, dismissed. However, since the plaintiff-opposite party himself has filed an affidavit that he is ready to return Rs.15000/- which has been claimed by the defendant to have been given 11 to the plaintiff as security money, the eviction of the tenant would be subject to payment of the aforesaid Rs.15000/-. The plaintiff may deposit the same before the executing court concerned and the defendant would be at liberty to withdraw the same. SC/P.S. (Dr. Ravi Ranjan, J.)