IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1 of 2010 KISHORI SAH, SON OF LATE YUGAL SAH, PROPRIETOR M/S KISHORI SAH UDAI KUMAR, MOHALLA- SARAIYAGANJ, TOWN-MUZAFFARPUR, P.O. AND P.S.- MUZAFFARPUR EAST, DISTRICT-MUZAFFARPUR. …………………………………………DEFENDANT-PETITIONER. Versus 1. ATUL KUMAR SAHU. 2. KUNDAN KUMAR SAHU. 3. BIPUL KUMAR SAHU. 4. SURAJ KUMAR SAHU. ALL SONS OF LATE SRI KRISHNA KUMAR PRASAD SAHU. ALL RESIDENTS OF MOHALLA-PURANI BAZAR, TOWN- MUZAFFARPUR, POST OFFICE-MUZAFFARPUR, POLICE STATION-MUZAFFARPUR, SUB-DIVISION AND MUNSIFFI- MUZAFFARPUR EAST, DISTRICT-MUZAFFARPUR. ……………………………PLAINTIFFS-OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Shanti Kumar & Dhananjay Kumar Tiwary, Advocates. For the Opposite Parties : Mr. Manoj Kr. Manoj, Advocate. ---------- 7. 23.2.2011. This Civil Revision, filed under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as “the Act”), is directed against the judgment/order dated 26th of November, 2009, passed by the Execution Munsif, Muzaffarpur, in Eviction Suit No.26 of 1996, directing the defendant-petitioner to vacate the suit premises and hand over the vacant possession to the 2 plaintiffs-opposite parties within sixty days, failing which, the plaintiffs would be at liberty to take recourse of law in getting the delivery of possession. I.A. No.736 of 2010 has been filed by the petitioner for a direction to the court below to accept the deposit of rent as according to the petitioner, he was not allowed to deposit the same after the order of eviction. I.A. No.878 of 2010 has been filed by the petitioner for staying the further proceeding of the impugned judgment and decree. Subsequently, I.A. No.7068 of 2010 has been filed by the petitioner for staying the further proceeding of Execution Case No.3 of 2010. Bereft of details, the necessary facts for consideration of the lis between the parties are as under: The plaintiffs-opposite parties have filed the suit for eviction of the defendant-petitioner from the suit premises, which is a shop, details of which stands described in Schedule-II of the plaint. The plaintiffs claim themselves to be the heirs of Late Sri Kirshna Kumar Prasad and are members of the Hindu Joint Family, the plaintiff no.1 being Karta and Manager of the family. The Plaintiffs claim that a double storey building in Municipal Ward No.148, is situated 3 at Mohalla-Saraiyaganj, which is ancestral property of the plaintiffs and stands recorded in the name of their father and in the same building, the shop in dispute is situated, which has been given at monthly rent to the defendant-petitioner for running a business of electric goods. It has been stated by the plaintiffs that the plaintiff nos.1 and 2 are engaged in business and agricultural work. However, plaintiff no.3 is unemployed after passing Matric and sitting idle since 1994, whereas plaintiff no.4 is student. The plaintiffs want to start a business of readymade garment for the employment of plaintiff no.3, for which the disputed shop is the most suitable according to them. Thus, it is claimed that the plaintiffs bonafide requires the disputed shop for use of the plaintiff no.3. It is claimed that when the plaintiffs‟ request for vacating the suit premises was avoided by the defendant- petitioner, then the present suit has been filed. The defendant-petitioner contested the suit by filing written statement and had admitted the tenancy. However, it has been claimed by him that the plaintiffs have already in possession of so many shops, rooms and better places than this shop for starting business, if they want to do so. It has also been claimed that the plaintiff no.3 is already 4 running a business of restaurant. Further, it has been stated that the dimension of the suit premises being only 5 ft. wide and 17 ft. long would not be sufficient for business of readymade garments and there is a shop in the residential building of the plaintiffs, which is vacant and can serve their purpose. Thus, it has been claimed by the defendant that the plaintiffs are not in bonafide personal requirement of the suit premises. The trial court has framed five issues. The plaintiffs have examined five witnesses, whereas the defendant has examined three witnesses. The trial court has recorded a finding that the plaintiffs require the suit premises bonafide for use of plaintiff no.3 to start a business of readymade garment and, thus, has directed the defendant-petitioner to vacate the suit premises and hand over the vacant possession of the same to the plaintiffs. I have heard the parties and perused the records of this case. Learned counsel appearing for the petitioner submitted that the impugned judgment/order has been passed in a very casual manner and the evidence of the witnesses 5 examined on behalf of the parties have not been properly dealt with and considered by the court below. It has been urged that the defendant has led evidence on the point of alternative premises being available to the plaintiffs as well as also that the plaintiff no.3 was already engaged in business, thus, there was no bonafide requirement of the suit premises. However, due to non consideration of the evidence led by the defendant and also the cross examination of the plaintiffs‟ witnesses, the defendant-petitioner has been highly prejudiced as the order of eviction has been passed against him. It has also been urged that the trial court has neither framed any issue with regard to the question of partial eviction nor has discussed and decided the same, which is mandatory requirement under Section 11(1) (c) of the Act, if an order for eviction of a tenant is being passed on the ground of bonafide personal requirement of the suit premises of the plaintiffs. Learned counsel appearing on behalf of the plaintiffs-opposite parties submitted that no cogent evidence has been produced by the defendant in support of his contention and the suit premises being admittedly of very small dimension, it would not be practical to partially evict 6 the defendant so that the plaintiffs‟ requirement is satisfied. I find force in the submissions raised on behalf of the defendant-petitioner. In the opinion of this Court, there has been no proper consideration of the evidence led on behalf of the parties on the point of bonafide requirement of the plaintiffs of the suit premises. The court below has only described that P.Ws.1, 2, 3 and 4 have supported the case of the plaintiffs, whereas P.W.5, Bhagya Narayan Pandit, has come to the court below to prove the receipt issued by the Municipal Corporation. It has not considered as to what have been stated by the witnesses and how they have been cross examined on the issue. Similarly, while describing the evidence of the defendant, the court below has only stated to the extent that their claim is that plaintiffs are not bonafide requirement of the suit premises in question. No reason has been assigned by the trial court for discarding the evidence led on behalf of the defendant. It is well settled that out of more than one tenanted premises, the plaintiff has a choice to choose one for his purpose. However, the issue has been raised by the defendant that the plaintiffs are having vacant premises also 7 which could have served their purpose. However, there is no adjudication on this point. There is no discussion of the defendant‟ witnesses and evidence led on behalf of the plaintiffs in proper perspective to show that how the plaintiffs have been able to prove their case. Similarly, there is a mandatory requirement that, while passing an order of eviction of the tenant on the ground of bonafide personal requirement of the suit premises by the plaintiffs, the court must decide the issue as to whether the requirement of the plaintiffs could be satisfied by the partial eviction of the tenant. There appears to be no finding recorded on this issue by the trial court also. By now, it is well settled that the proviso to Section 11(1)(c) of the Act is quite emphatic and mandatory in nature and the trial court was duty bound to record a finding regarding the adequacy of the requirement and it is satisfied by partial eviction of the tenant. A Division Bench of this Court in the case of M/s Bihar Alloy Steel Limited Vs. Hari Shankar Worah (Properties) Limited and another, reported in 1987 Patna Law Journal Reports, 868, has clearly stated that the Legislature has chosen to qualify the word „satisfied‟ by the 8 expression substantially with a view to keep the interest of the tenant protected by providing occupation to him of the building in part. That being the situation, this Court is constrained to hold that due to non consideration of the evidence led on behalf of the parties and also due to non consideration of the question of partial eviction, the impugned judgment/order cannot be sustained in law. Thus, the same is hereby set aside and quashed and the matter is remitted back to the trial court to consider the materials including the evidence led on behalf of the parties in proper perspective and also to consider the question of partial eviction in accordance with law and pass a reasoned order in accordance with law afresh, preferably, within a period of six months from the date of receipt of the lower court records and a copy of this order. If needed, the court below may direct the parties to lead evidence on the issue of partial eviction. It is further made clear that if the defendant- petitioner creates any hindrance in the disposal of the suit within the aforesaid time fixed by this Court, then the court below will dispose of the suit on the basis of materials brought on record by the plaintiffs. 9 In view of the aforesaid, the petitioner would be at liberty to deposit current as well as arrears of rent till the final decision in the eviction suit as per his prayer in I.A. No.736 of 2010. No order is needed to be passed in I.A. No.878 of 2010 and I.A. No.7068 of 2010. Accordingly, this Civil Revision stands allowed. Let the lower court records be immediately sent back to the court concerned. P.S. ( Dr. Ravi Ranjan, J)