IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.298 of 2009 Shyam Sunder Prasad Agrawal @ Shyam Sunder Agrawal Versus Rabindra Narayan Agrawal & Ors ---------------------------------- 10 2-8-2011 Heard the learned counsel of the appellants and the learned counsel for the respondents on I.A.No. 2294 of 2011 as well as on the point of admission of this appeal. This interlocutory application has been filed on behalf of the appellant stating that due to inadvertence the names of some of the appellants and some of the respondents could not be mentioned in the memo of appeal. Learned counsel appearing on behalf of the respondents has no objection to the prayer made by the appellant . In this view of the matter I.A. No. 2294 of 2011 is allowed and the names of the left out appellants and the respondents, as mentioned in the said interlocutory application are permitted to be added in the memo of appeal. This appeal has been filed against the judgment and decree dated 8th April, 2009, passed by F.T.C. I, Begusarai in M.T.A.No. 10 of 1990 affirming the judgment and decree dated 11-4-2090 passed by the Munsif 1st, Begusarai, in Title Suit(Eviction) No. 2 of 1977. The 2 plaintiffs, who are the respondents here in this appeal, had filed Title Suit(Eviction) No. 2 of 1977 against the defendants who are the appellants here. The plaintiffs had inducted the defendants in the shop in question as tenant on the basis of a lease for a fixed term of one year for a total amount of Rs.2400/- to be paid in monthly instalment of Rs.200/- per month, but the defendants did not vacate and hand over the vacant possession of the shop to the plaintiffs after expiry of the said period and further the defendant also made defaults in payment of rent for two consecutive months. It has been the specific case of the plaintiffs that they have been contemplating to construct a market complex in their land lying behind the suit shop and the eviction of the defendant has become necessary because the space of the suit shop would be the only approach to the proposed market complex. Thus, the plaintiffs have made out a case of personal necessity with regard to the suit shop for the purpose of creating a passage to go to the land lying behind the shop. The defendants appeared and contested the claim of the plaintiffs with regard to the personal necessity by asserting that the intention of the plaintiffs is malafide 3 because the plaintiffs have failed to obtain the enhanced rent of the suit shop as per their fanciful desire and the story of personal necessity has been concocted only to gain sympathy. After hearing the parties the trial court has decided the issue of expiry of lease and default in payment of rent against the plaintiffs, but with regard to issue of personal necessity of the plaintiffs the trial court has considered the evidence in detail and has given a finding in that regard in favour of the plaintiffs. The learned trial court has also considered the issue of partial eviction and decided that issue against the defendants and ultimately the suit was decreed. In appeal, the appellate court reconsidered the evidence on record and has come to the conclusion that in absence of cross-appeal or cross-objection with regard to the findings of the expiry of lease and default in payment of rent there is no need to consider those issues. However, with regard to the issue of personal necessity the appellate court has come to conclude by a categorical finding that the plaintiffs have got bonafide personal necessity for the suit shop and partial eviction could not satisfy the need of the 4 plaintiffs. The learned counsel appearing on behalf of the appellant in this appeal has submitted that both the courts below have erred in law in not considering the fact that the plaintiffs want eviction of the defendant from the suit shop for the purpose of using the said space by way of passage for approaching the rear portion/land. His contention is that the personal necessity as envisaged in section 11 , sub- clause(c) of the Bihar Buildings(Lease, Rent & Eviction) Control Act 1982[ hereinafter referred to as Act] must be for the occupation by way of residence and not otherwise and in any view of the matter the conversion of the space of the suit shop into passage can never be termed as bonafide personal necessity. The plaintiffs have placed their reliance upon a decision reported in [ Ratan Lal Rai Vs. Sheo Kumar Kamali][1996(1)P.L.J.R. 217 and has referred to paragraph no.37 of the said decision where in the facts and circumstances of that case it has been held that the case of the plaintiff to open a passage for going to other portion of the holding cannot be sustainable in law. Further reliance for the same proposition has been placed upon the decision in [Rajendra Behi Vs. Deshraj Singh]1989 P.L.J.R. 1162 5 with particular reference to paragraph no.17 of the decision Learned counsel appearing on behalf of the respondents has ,however, submitted that the words „use and occupation‟ as mentioned in the Rent Control Act has been considered by the Apex Court in its judgment in Kunhamma Vs. Akkali Purushothaman (2007) [11] Supreme Court Cases 181 wherein the Apex Court while considering the similar provision in the Kerala Buildings(Lease and Rent Control) Act, 1965 has explained the meaning and scope of these two words in reference to the eviction suit. After hearing the submissions of the learned counsels and perusing the impugned judgments of both the courts below, it appears that both the courts below have come to a concurrent finding of fact that the plaintiffs have got bonafide personal necessity for the suit shop and the said finding has been arrived after considering the pleadings of the parties and the evidence on record. So far as the submission made by the learned counsel appearing on behalf of the appellant with regard to the interpretation and scope of the words „use and occupation‟ are concerned, the Apex Court in the case of Kunhamma(supra) in paragraph no.11 has held as follows: 6 11. The observations of the Privy Council are much to the same effect. In K. Menon case the Court reinforced its opinion by an analogy and by putting a hypothetical question to itself: (KLT p. 134, para 5) “Can he not use the space occupied by the old building as car park, or as passage to the new building? If he cannot do so, the entire rear portion may become practically useless. This would be one of the hard consequences if Section 11(3) of the Act is given a narrow or strict interpretation. Such consequences can be averted if Section 11(3) is given a wider interpretation,…” The Court thereafter reiterated the judgment of the High Court in Sarada case2. The Court also observed that the preponderance of opinion of the Court was in favour of the above construction and that: “If two constructions are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness, and eschew the other which makes its operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute.” In view of the judgment of the Apex Court giving interpretation to the words „ use and occupation‟, it is clear that the words “ use and occupation” as mentioned in section 11(c) of the Act, cannot be restricted to only the personal necessity of the landlord of the suit premises for his residence and for no other purpose. Such restricted meaning to the words”use and occupation” would be unduly oppressive, unjust or unreasonable”. The need for opening a passage in the space occupied by the suit shop for gainful use of their land lying behind the same is clearly a bonafide 7 personal necessity of the plaintiffs within the meaning of section 11(c) of the Act in the facts and circumstances of this case. There is no force in the submission of the learned counsel for the appellant. As such, there is no substantial question of law arising in this appeal for consideration. This appeal is, accordingly, dismissed. roy (V. Nath, J.)