CIVIL REVISION No.513 OF 2004 ***** Against the judgment and order dated 28.2.2004, passed by Md. Shahid Rais, Munsif-III, Patna, in Title Eviction Suit No.2 of 2001. ***** PARMANAND PRASAD, Son of late Gaya Prasad, resident of Suraj Bhawan, Station Road, P.S. – Kotwali, district- Patna. …… Defendant- Petitioner. Versus BIMAL KUMAR JAIN, son of late Basant Lal Jain, a resident of Suraj Bhawan, Station Road, Patna-1. …… Plaintiff- Opposite Party. ----------- For the Petitioner: Mr. P.N. Pathak, Advocate. For the Opposite Party: Mr. Jashwir Singh Arora, with Mr. Ajay Kumar & Mr. Ravi Bhatia, Advocates. ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR ***** S.K. Katriar, J. The defendant has filed this civil revision application in terms of Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1982 (hereinafter referred to as the „Act‟ ), and is aggrieved by the judgment and decree dated 28.2.2004, passed by the learned Munsif-III, Patna, in Eviction Suit No.2 of 2001 (Bimal Kumar Jain Vs. Parmanand Prasad), whereby the suit on the ground of personal necessity has been decreed, and the defendant‟s eviction from the suit premises has been ordered for. We shall state the description of the parties occurring in the plaint. 2. According to the plaint, the plaintiff (the opposite party herein) is the owner of the suit premises, which is a small 2 room in which the defendant (the petitioner herein) is running his business of painting sign-boards. The suit premises is a small room and a verandah on the ground floor of the building known as „Suraj Bhawan‟, Station Road, Patna. The plaintiff‟s further case is that the suit premises was let out by the plaintiff‟s mother way back in 1960, on a monthly rental of Rs.20/-, which was raised to Rs.29/- per month. The defendant has remained in possession of the suit premises ever since 1960 till date. The plaintiff‟s further case is that he is running a dormitory where he provides accommodation to customers on rental. In other words, it is in the nature of a hotel. The plaintiff‟s further case is that he has a make-shift office, wants to set up a proper office, and the suit premises is an appropriate place for the purpose, being part of the same building where the dormitory business is being run. 3. The defendant entered appearance, filed his written statement, and contested the suit. According to the written statement, the plaintiff does not need the suit premises on account of bona fide personal necessity, but is a ploy for the defendant‟s eviction. 4. The learned trial court framed the following issues on 19.12.2001, for adjudication: 1. Is the suit as framed is maintainable? 2. Whether the plaintiff has got cause of action for the suit? 3. Is the suit barred by limitation? 3 4. Is the suit barred under the principles of estoppels, waiver and acquiescence? 5. Whether the rent of the suit premises is rupees 800/- P.M. or rupees 29/- P.M. ? 6. Whether the plaintiff required the suit premises for his use and occupation, reasonably and in good faith or not? 7. Whether the defendant is defaulter in payment of rent in the eye of law, or not? 8. Whether the plaintiff is entitled for a decree of eviction or not? 9. To what other relief or reliefs the plaintiff is entitled? 5. Both sides led evidence and brought on record a large number of documents, as well as oral evidence, in support of their respective cases. After the hearing concluded, it was fixed for judgment on 27.1.2004. It was, however, not delivered on that date and was adjourned on various dates. The issues were recast on 19.2.2004, and are reproduced hereinbelow: 1. Is the suit as framed maintainable? 2. Whether the plaintiff has got cause of action for the suit? 3. Is the suit barred by limitation? 4. Whether the plaintiff requires the suit premises for his use and occupation reasonably and in good faith or not? 5. Whether the plaintiff is entitled for a decree of eviction or not? 6. To what other relief or reliefs the plaintiff is entitled to? 4 6. The suit was ultimately decreed on 28.2.2004. The learned trial court has held that the plaintiff does not have appropriate office for his dormitory business, and bona fide needs the suit premises for setting up of a proper office, which is a suitable place in the building for the purpose. 7. While assailing the validity of the impugned order, learned counsel for the defendant (the petitioner) submits that the learned trial court has ultimately recast the issues after it was fixed for judgment, and was delivered without affording any opportunity of hearing to the parties. He next submits that the issues originally framed on 19.12.2001 clearly stated that the eviction is sought on the twin grounds of default in payment of rent and personal necessity. Therefore, the detailed procedure ought to have been followed, and instead the summary procedure within the meaning of section 14 of the Act has been followed which renders the entire trial bad in law. He accordingly submits that the impugned judgment may be set aside, and the matter may be remitted to the learned trial court. He lastly submits that the plaintiff has not been able to establish his case of personal necessity, and is a mere ploy to evict the defendant. He also submits that he is a very poor person. 8. Learned counsel for the plaintiff (opposite party herein) has taken us through the pleadings of the parties, the relevant order-sheet, and has supported the impugned judgment. 5 9. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is undoubtedly correct to state that the issues were initially framed by order dated 19.12.2001, and is reproduced hereinabove. It is evident on a plain reading of the issues as originally framed that the learned trial court had intended to decide the question of eviction on the ground of default in payment of rent as well as personal necessity of the plaintiff. After hearing concluded, the suit was fixed for judgment on 27.1.2004. We would do well to reproduce hereinbelow the order-sheet of the trial court from 27.1.2004 to 28.2.2004: 27.1.2004 mHk; i{k dh gktjh nh xbZ gSA mHk; i{kksa dk tokoh cgl lqukA okn fnukad 5&2&04 okLrs fu.kZ; gsrq j[kk x;kA Sd/- Munsif-III 5.2.2004 Record put up for judgment, but while I myself preparing for writing judgment I find that the defendant has filed a bundle of receipts along with list of documents and those postal receipts were marked as exhibits C to C/352 vide order dated 23.7.03 but from perusal of the receipts I find that after Exts. C/235 number was endorsed on the next receipt as C/238 and onwards and Exts.C/236 and Ext.-C/237 has mistakenly not endorsed on the postal receipt no.4551 and 5398 which ought to be marked as Ext.-C/236 and C/237 in place of C/238 and C/239 and onwards. Therefore, Bench Clerk is directed to recheck all the exhibits and correct the number with this order. 6 Party is also directed to co-operate the concerned staff in doing the same and put up on 7.2.04 for judgment. Let the order be shown to parties concerned. Sd/- Munsif 3rd, Patna 7.2.2004 Okknh dh gktjh nh xbZA izfroknh dh iSjoh ugha gSA fnukad 5&2&04 ds vkns'k ds vkyksd esa izn'kZ dks ,oa lwph dks csap fyfid n~okjk lq/kkj fd;k x;kA i{kksa ds izkFkZuk ij okn fnukad 10&2&04 okLrs fu.kZ; gsrq j[kk x;kA Sd/- Munsif-III 10.2.2004 mHk; i{k dh gktjh nh xbZ gSA izfroknh dh vksj ls fcuk fVdV dk vkosnu nkf[ky dj okn esa nwljh frfFk fuf'pr djus dh izkFkZuk dh xbZ gSA izfroknh ds fyf[kr izkFkZuk ij okn dkuwuh fcUnw ij lquus gsrq j[kk x;kA izfroknh ds vkosnu i= ij QSlyk ugh fn;k x;kA okn fnukad 19&2&04 okLrs dkuwuh fcUnw ij lquokbZ gsrq j[kk x;kA izfroknh vkosnu dk fVdV nkf[ky djsaA Sd/- Munsif-III 19.2.2004 mHk; i{kksa dh vksj ls gktjh nh xbZA mHk; i{kksa dk dkuwuh fcUnw ij lqukA okn fnukad 28&2&04 dks QSlyk gsrq j[kk x;kA Sd/- Munsif-III Ckkn esa 19.2.2004 Okkn esa issue recast fd;k xa;kA vfHkys[k fuf'pr frfFk dks fu.kZ; gsrq izLrqr djsaA Sd/- Munsif-III 28.2.2004 Okkn es fu.kZ; ikfjr fd;k x;k tks vyx i`’Bksa ij vafdr gS ,oa vfHkys[k ds lkFk layXu gSA okn es lla?k’kZ [kpkZ ds lkFk oknh dks t;i= fn;k x;kA Sd/- Munsif-III It appears that the learned trial court had recast the issues on 19.2.2004, which is reproduced hereinabove, and the judgment was ultimately delivered on 28.2.2004. 7 10. It appears to us on a perusal of the plaint that the plaintiff had not set up his case for eviction on the ground of default in payment of rent. There is no averment to that effect in the plaint, and it is evident that eviction was sought on the sole ground of bona fide personal necessity. Paragraph 8 of the plaint is reproduced hereinbelow: “8. That accordingly the plaintiff is filing this suit for eviction exclusively on the ground of personal necessity for seeking a decree of eviction against the defendant from the Schedule I premises on the ground of personal necessity being under section 11(1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 to be tried under section 14 of the said Act. The plaintiff is keeping the right reserve to file suit on the ground of default and others.” In that view of the matter, the issues framed on 19.12.2001 were clearly an error apparent on the face of the record. 11. Law is well settled that the frame of the suit is determined by the plaintiff. If the plaintiff has not set up his case for eviction on the ground of default in payment of rent, neither the defendant nor the court can impose its will of eviction on the ground of default in payment of rent. In that view of the matter, the learned trial court detected this error at a late stage, corrected the same by order dated 19.2.2004, and recast the issues which were earlier inconsistent with the frame of the suit as well as the statements made in the written statement. Not correcting the error 8 would have been tantamount to raising chimerical issues, not raised by the plaint and would have also put the plaintiff in the jeopardy of following the detailed procedure. Law is well settled that if eviction is sought on the ground of default in payment of rent as well as personal necessity then detailed procedure has to be followed. In fact, failure to recast would have been abdication of essential duties and functions on the part of the learned trial court, and would have serious prejudice to the plaintiff. 11.1) It is evident on a plain reading of the proceedings that the summary procedure was followed. This position is clearly emerges from the application filed by the defendant on 20.3.2001, in terms of Section 14(4) of the Act seeking leave of the court to contest the suit, which is a requirement of law if summary procedure is followed. It is clear from a bare perusal of the terms of the Act that summary procedure in terms of Section 14 of the Act has to be followed if the suit is based on the ground of personal necessity. We, therefore, do not find any error in the learned trial court‟s order dated 19.2.2004, whereby the issues were recast and made consistent with the issues arising in the pleadings of the parties. 12. We must also consider the grievance of the learned counsel for the defendant that the issues were recast on 19.2.2004, and the judgment was delivered on 28.2.2004, without affording the parties opportunity of leading fresh evidence and further 9 opportunity of hearing after the issues were recast. The contention is stated only to be rejected. As stated hereinabove, neither the court nor the defendant can impose their will on the plaintiff to set up his case as per his (plaintiff) volition. Secondly, it is evident that the parties had proceeded from the very inception on the footing that the suit for eviction is based exclusively and solely on the ground of personal necessity. Therefore, the summary procedure was followed from the beginning. In that view of the matter, the formal, though necessary, correction was made by recasting the issues. There was no need of affording any opportunity of hearing to the parties, otherwise it would be piling unreason upon technicality. The contention is rejected. 13. As to the defendant‟s second grievance that, in view of the issues framed on the earlier occasion, the detailed procedure had to be followed, has to be rejected. In the circumstances of the case and the aforementioned discussion, there is no need to discuss the same any further because it is evident from a plain reading of the plaint that the suit is based exclusively and solely on the ground of personal necessity. The contention is rejected. 14. As to the third contention, it appears to us from a perusal of the impugned judgment that the learned trial court has found that the plaintiff is running a dormitory business with a make-shift office, and he is urgently in need of setting up a proper 10 office. The relevant portion of the judgment is reproduced hereinbelow: “…I find that there is no dispute regarding occupancy of the suit premises by the defendant as tenant and the plaintiff is the landlord of the suit premises. It is also clear that whole question of this eviction suit revolves around the personal necessity of the plaintiff and it is obvious a case of Section 14 of the B.B.C. Act. The plaintiff has been able to prove his running business of dormitory without any office and no witness of the defendant including the defendant proved the fact, that dormitory have permanent office. Thus it is clear that dormitory is running without any office which is a need of such type of business. It also stands clear that the suit premises is a frontage of the Suraj Bhawan and the plaintiff claimed about the need of most suitable for the expansion of the concerned business. In this regard it is stated that the plaintiff may require the premises on account of personal need which must be bonafide, and here I find that his concern need is nothing but good and reasonable requirement may be termed as bonafide. It is also obvious from the evidence tendered by the plaintiff that his requirement of the suit premises is not a mere desire but he needs the suit premises as a bonafide for his business. On the other hand defendant totally fails to prove the case in his favour. As a result, this issue is decided in favour of the plaintiff and against the defendant. ” We are thus convinced that the plaintiff needs the suit premises bona fide for his personal necessity. We have not been able to trace any element on the part of the plaintiff to institute the suit for the purpose of eviction only. The contention is rejected. 15. The suit premises is a small portion comprising of a small room and small verandah in front of it. Partial eviction of such a small premises is not possible, and shall not serve the need 11 of the plaintiff. We further take note of the position that the defendant has continued in the suit premises ever since 1960 till date. He started with a meagre rental of Rs.20/-, and the current rent is Rs. 29/- per month. We feel unhappy at the dishonest approach of the defendant in paying such a niggardly amount by way of rental to the plaintiff. 16. In the result, this civil revision application is dismissed but without any cost, for the reason that the defendant prays that he may be allowed a reasonable time to continue in the suit premises to make an alternative arrangement. In the circumstances of the case, as prayed for on behalf of the defendant, six months‟ time is granted to him to vacate the suit premises without the necessity of execution proceedings. We were minded to enhance the rental for the period of six months. However, learned counsel for the plaintiff submits that he is satisfied with eviction, and does not want any higher rent during this period. (S K Katriar, J.) Patna High Court, Patna. Dated the 18th of August 2010. S.K.Pathak/ (AFR).