IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.403 of 2009 Sukhdeo Singh son of Late Mukhatiyar Singh, C/o M/s Raxin House, R.K. Bhattacharya Road, P.S. Gandhi Maidan, District Patna.………..Defendant-Appellant-Appellant. Versus 1. Rajeev Kumar 2. Rajesh Kumar Both sons of Sri Ramashrya Singh. Both residents of village Mokama, P.S. Mokama, District Patna. At present residents of Ashiyana Nagar, P.S. Shastri Nagar, District Patna. ……………...Plaintiffs-Respondents-Respondents. For the appellant : M/s Anish Chandra Sinha and Sanjay Kumar, Advocates. For the respondents : Mr. Binod Kumar Singh, Advocate. ----------- 05/ 11.01.2010 Heard learned counsel for the appellant and learned counsel for the respondents. 2. This second appeal has been filed by the sole defendant-appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Eviction Suit No.31 of 1997 which was filed by the plaintiffs-respondents-respondents for eviction of the defendant on the ground of default in payment of rent by the defendant and also on the ground of personal necessity of the plaintiffs. The said suit was decreed on contest by the learned Subordinate Judge-III, Patna vide his judgment and decree dated 12.05.2006. 4. Against the aforesaid judgment and decree of the trial court the defendant filed Eviction Appeal No.72 of 2006 which was dismissed on contest by the learned Additional District Judge-cum-Fast Track Court No.XV, Patna vide his judgment and 2 decree dated 04.07.2009. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Learned counsel for the appellant vehemently challenges the aforesaid judgments and decree of the learned courts below claiming that so far the default in payment of rent was concerned, no doubt on 06.05.1988 the Rent Controller fixed the rent of the suit shop room which at that time was 450 sq.ft. at the rate of 1900.00 per month, but subsequently in the year 1997 208 sq.ft. out of the said suit land was acquired by the Government while widening Bhattacharya Road and hence the defendant tendered and remitted rent of the remaining portion of the suit shop room of proportionately lesser amount i.e. Rs.1172.00 per month as per the rate fixed by the Rent Controller. This submission has been proved by the defendant-appellant vide Annexure-A series and B series. Hence, he submits that there was no occasion for the learned courts below to decree eviction suit on the ground of default in payment of rent. So far the question of personal necessity is concerned, learned counsel for the appellant submits that no proper finding with regard to partial eviction has been given either by the trial court or by the lower appellate court and in any view of the matter the finding of the lower appellate court is vague and cursory clearly violating the Proviso to section 11(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. 3 6. From the averments of the parties as well as the materials on record, including the impugned judgments and decree of the learned courts below, it is quite apparent that the relationship of landlord and tenant between the parties was admitted. It was also not in dispute that the area of the suit shop room was curtailed due to acquisition of some portion by the State Government for widening of Bhattacharya Road, but the question was as to whether the defendant was justified in curtailing the rent suo motu without taking recourse to the legal procedure, specially when the rate in that area had enormously increased by that time as would be clear from order dated 18.08.1998 by which the House Controller had fixed the rent of the present area of the suit shop room at the rate of Rs.2004.00 per month in B.B.C. No.25 of 1998. This aspect of the matter had been very carefully considered in detail by the learned courts below which rightly came to the finding that the act of the defendant was not justified, as in such a case he should have taken recourse to the legal procedure for fixation of rent of the remaining area of the shop room concerned, if any injustice was being done to him, but instead of doing that the defendant suo motu started sending lesser rent in 1997 which he should not have legally done, specially when the rent in the area had considerably increased after the order earlier passed in the year 1988 by the Rent Controller which is quite apparent from the subsequent order of the Rent Controller passed in the year 1998. In the said circumstances the defendant cannot legally 4 escape from the liability and it has been rightly held by the learned courts below that in the said circumstances he has become a defaulter. 7. So far the question of partial eviction is concerned, the law is well settled that if a suit is filed for eviction on both grounds of default in payment of rent as well as personal requirement and is decreed on both the grounds, the question of partial eviction is not of much importance. Furthermore, admittedly a portion of the original shop room had been acquired by the Government and hence only an area of about 242 sq.ft. remained in which the plaintiffs’ father who had retired from service, was intending to start his business of motor parts. It was also specifically found by the trial court that the entire suit premises was suitable and just sufficient to run the business of motor parts in the locality where the business of motor parts are being run by other businessmen also and for which the plaintiffs’ father had sufficient means. This finding of the trial court has been affirmed by the learned court of appeal below. 8. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S. N. Hussain, J. )