CIVIL REVISION NO.866 OF 2008 *** Dr. Manchan Shin son of Late Wee Moshin, resident of Opposite Kulharia House, Ashok Raj Path, P.S. Pirbahore, P.O. Bankipur, Town and District of Patna………………….Defendant-Petitioner. Versus Purshottam Das Tondon son of Late Laxman Das, resident of Opposite Kulharia House, Ashok Raj Path, P.S. Pirbahore, P.O. Bankipur, Town and District of Patna, at present residing in tenanted house of Sada Shiv Sadan, Mathura Prasad Road, P.S. Kadamkuan, Town and District of Patna… ……..Plaintiff-Opposite party. For the petitioner : M/s S.S. Dwivedi, Sr. Advocate and R.P.Tiwary, Advocate. For the opposite party : M/s Abinash Kumar and Dilip Kumar, Advocates. P R E S E N T HON'BLE MR. JUSTICE S. N. HUSSAIN S.N. Hussain, J. Heard learned counsel for the petitioner as well as learned counsel for the opposite party in the instant case, which has been filed under the Proviso to sub section 8 of Section 14 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’ for the sake of brevity). 2. This civil revision has been filed by the sole defendant-petitioner challenging the order of his eviction passed by the learned Munsif-I, Patna vide judgment dated 04.02.2008 decreeing Eviction Suit No.05 of 2001, which was filed by the sole plaintiff-opposite party on contest with cost. 3. The aforesaid suit was filed by the opposite party for eviction of the petitioner on the ground of his bonafide personal requirement claiming to be the owner- landlord of the suit premises which was a shop room on the ground floor of his house and measured about 190 sq. ft. (8.3 ft. x 23.5 ft.) and was being occupied as a tenant by the petitioner, who was running his dental clinic therein. It was also claimed that the opposite party was himself living in a rented premises and hence he required the entire ground floor of the house, including the suit shop for starting his own business of cosmetics and bangles, etc. and also required the first floor for his residence with his family after reconstruction as 2 he had a son and two daughters and due to financial crisis and lack of space he was not in position to marry his daughter. 4. On the other hand, the defendant-petitioner after getting leave to contest filed his written statement in the said suit claiming that he was running a dental clinic in the suit premises which was the only source of livelihood of his entire family but the plaintiff tried to forcibly oust the defendant by the help of hooligans and also lodged criminal cases against the father and elder brother of the petitioner and started demolishing the suit premises on the pretext of repairs, but due to intervention of common friends an agreement dated 08.01.1992 was executed by both the parties in which it was stated that if the opposite party constructed a market-cum-residential complex, the defendant would be accommodated in the same. It was claimed by the defendant that the plaintiff was working in a private transport agency and his son was running his own business of tea and snacks etc. and hence the plaintiff had no bonafide requirement of the suit premises. 5. The pleadings of the parties were considered by the learned court below and on their basis the following issues were settled in the eviction suit: (i) Whether the suit as framed and filed is maintainable? (ii) Whether the plaintiff has any cause of action to sue? (iii) Whether the suit is barred under section 47 of the Specific Relief Act? (iv) Whether the plaintiff requires the suit premises as described in Schedule-II of the plaint bonafidely and reasonably and the defendant is liable to be evicted from the suit premises on this ground? (v) Whether partial eviction of the defendant from the suit premises will satisfy the requirement of plaintiff? (vi) To what other relief or reliefs the plaintiff is entitled? 6. However, during the pendency of the aforesaid suit a petition under section 15 of the Act was filed by the plaintiff and the learned court below allowed the same vide order dated 15.04.2002 directing the defendant to deposit monthly rent since half of September, 2004 as the rent of the suit premises but the defendant failed to comply the said order and hence due to the act of non-compliance by the defendant his defence against ejectment was struck off by the learned court below on 16.02.2006. It transpires that the said order attained finality and hence his defence was not to be considered. 3 7. In support of his claim on the aforesaid issues, the plaintiff produced four witnesses out of whom PW.4 was the plaintiff himself. On the other hand, the defendant produced 31 witnesses out of whom 18 were formal witnesses, namely DW.1, DW.2, DW.6, DW.7, DW.9, DW.10, DW.11, DW.12, DW.13, DW.14, DW.15, DW.16, DW.18, DW.19, DW.21, DW.23, DW.25 and DW.26 whereas DW.29 was the defendant himself. In addition to the said oral evidence the defendant produced several documents, namely deed of agreement dated 08.01.1992 (Ext.A), acknowledgment receipt dated 16.09.1990 (Ext.B), Ekrarnama dated 24.12.1991 (Ext.C), P.M.C. Tax receipts (Exts.D, D/1 and D/2), notice of P.M.C. Bankipur Anchal (Ext.E), receipt of cheque by P.M.C. official dated 06.07.1996 (Ext.F), signature of plaintiff, defendant and others on the deed of agreement dated 08.01.1992 (Ext.G series), Municipal Corporation Receipts (Exts.X and Y) and a photograph (Ext.Y/1). 8. Considering the pleadings and evidence of the parties, the learned court below decreed the suit on contest with cost by its impugned judgment dated 04.02.2008 and directed the defendant to vacate the suit premises and hand over vacant possession thereof to the plaintiff, after arriving at the following findings: (a) Plaintiff has been able to prove that he had personal necessity of the suit premises and his requirement was reasonable and bonafide and the defendant is liable to be evicted from the suit premises on the said ground. (b) Partial eviction of the defendant from the suit premises will not serve the purpose of the plaintiff. (c) The issue of bar provided in the Specific Relief Act was not pressed by the defendant at the time of hearing of the suit and hence it is decided in favour of the plaintiff. (d) The suit as framed and filed is maintainable and the plaintiff has valid cause of action to sue and is entitled for the relief as claimed for. 9. Against the aforesaid order of his eviction vide the impugned judgment of the learned court below the sole defendant has filed the instant civil revision. From the facts, pleadings and evidence of the parties, it is quite apparent that it is not in dispute that the plaintiff was the owner of the suit premises and the defendant was his tenant and hence the relationship of landlord and tenant between the parties was an admitted fact due to which no issue on the said question was framed by the learned court below. In this 4 court also the defendant-petitioner has not challenged the relationship of landlord and tenant between the parties rather he has challenged the findings of the learned court below with regard to the issues of personal necessity and partial eviction only. Hence following points are to be considered and decided in this civil revision: (a) Whether the plaintiff has been able to prove his claim of personal necessity of the suit premises beyond any reasonable doubt? (b) Whether partial eviction of the defendant, would satisfy the requirement of the plaintiff? 10. So far the question of personal necessity is concerned, the specific claim of the plaintiff-opposite party is that he has no other property except a double storied building over 551 sq.ft.(29 ft. x 19ft.) of land, in the eastern part of which the suit shop measuring about 190 sq. ft. ( 8.3 ft. x 23.5 ft.) is situated on the ground floor, whereas in the western part of the said building another shop measuring 64 sq. ft.(4 ft. x 16 ft.) is situated on the ground floor which is under the tenancy of another tenant Satya Narain Gupta for whose eviction, Eviction Suit No.19 of 2002 was filed by the plaintiff. It was also claimed by the plaintiff-opposite party that the upper portion (first floor) of the said building was in a dilapidated and uninhabitable condition due to which the plaintiff-opposite party was living in a rented house and was employed in a private transport agency, namely M/s Atul Carriers. These facts were not disputed by the defendant-petitioner. 11. The plaintiff-opposite party had claimed that his income from his said private service was very meagre and was not sufficient to maintain his family consisting of his wife and three children including two daughters of marriageable age and hence he required the entire house, including both the shop rooms for using the entire ground floor for starting his personal business of cosmetics and bangles, etc. with the help of his wife and for reconstructing his first floor for the residential purposes of his family. This claim of the plaintiff-opposite party was vehemently contested by the defendant- petitioner, who claimed that the plaintiff had good earning from the said private job and his son was also selling tea and snacks and hence the family had sufficient income, if the income of the plaintiff and his son as well as the rent from the two shops were calculated together. 12. Learned counsel for the defendant-petitioner has stated that the plaintiff-opposite party has claimed bonafide personal requirement of the suit premises on 5 three grounds, namely (i) to augment the income of the family, (ii) to marry his daughter and (iii)to reconstruct after demolition of the dilapidated old building for residence on the first floor. He contested the said grounds as follows:- (i) With respect to the aforesaid first ground learned counsel for the defendant-petitioner has averred that the wife of the plaintiff being a parda nashin lady there was no question of her doing any such business in the ground floor of the said building. It was further averred that the plaintiff was well employed getting good salary and his son was also self employed selling tea and snacks apart from getting rent of the two shop rooms, hence there was no justification in the plaintiff’s claim that he wanted to augment his income. (ii) With regard to the aforesaid second ground, learned counsel for the defendant-petitioner has stated that the eldest daughter for whose marriage the plaintiff had claimed requirement, has already been married and hence the said ground does not remain with the plaintiff due to the subsequent event. (iii) With respect to the aforesaid third ground learned counsel for the defendant-petitioner has claimed that the suit property being situated in a commercial area of Ashok Raj Path there is no question of construction of any residential premises therein. It is also claimed that the suit premises being only in a part of the building no demolition and construction is possible unless the other portion of the house is vacated and is included in the construction. (iv) Learned counsel for the defendant-petitioner also submitted that there was an agreement in the year 1992 between the plaintiff and the defendant which was not denied by the plaintiff-opposite party and in that agreement (Ext.A) it was agreed by the parties that if the plaintiff intended to construct a market-cum-residential complex in place of the old building, he would provide a shop to the defendant on the ground floor and would construct the complex in such a manner that the defendant will not have to close his business and hence in terms of the aforesaid agreement the plaintiff was not entitled to eject the defendant in such a manner. (v) In the said circumstances learned counsel for the defendant-petitioner has claimed that the entire basis of the plaintiff’s case was absolutely frivolous and 6 misconceived and was fit to be rejected but the learned court below wrongly allowed the claim of the plaintiff and decreed the eviction suit. 13. From the pleadings of the parties as well as from the evidence adduced by them it is quite apparent that the plaintiff has specifically proved his pleadings while deposing as PW.4, which was supported by other witnesses including his son PW.3 and other independent witnesses that the plaintiff had a meagre income from his private job in a small transport company which could not be disproved by the defendant by any cogent material. Furthermore the claim of the defendant was that the son of the plaintiff was selling tea and snacks but no material has been produced by them to prove the said pleading and hence the said statement cannot be relied upon. However, even if the said claim of the defendant is accepted selling of tea and snacks without any shop by the son of the plaintiff owning a double storied house on the Ashok Raj Path is sufficient to prove the plaintiff’s bonafide personal requirement of the suit premises for augmenting his income. 14. The ground taken by the defendant-petitioner that the wife of the plaintiff being a parda nashin lady, cannot run a shop also appears to be frivolous and baseless because the plaintiff had specifically claimed and proved that he wanted to start a business of cosmetics and bangles in the entire ground floor of the house in question with the help of his wife and hence shop was to be run by the plaintiff and his wife would only help him as the nature of the said business would attract mainly ladies. Hence, there was no impediment for the wife of the plaintiff in helping her husband in the said business. 15. Learned counsel for the defendant-petitioner has also raised a point that one of the grounds of the plaintiff in the plaint was that his eldest daughter was of marriageable age but admittedly she had been married during the pendency of the suit and hence according to the defendant-petitioner the said ground does not remain with the plaintiff. It is quite apparent that the eviction suit was filed in the year 2001 and it cannot be reasonably expected that the plaintiff would not marry his eldest daughter for 7-8 years merely for the purposes of the suit. Furthermore, the defendant has not claimed that the second daughter of the plaintiff has also been married whereas the claim of learned counsel for the plaintiff-opposite party is that she is still unmarried and has attained marriageable age now, although in the year 2001 she was not of marriageable age. In the said 7 circumstances, only because the eldest daughter of the plaintiff has already been married the claim of the plaintiff on the other grounds cannot legally fail. 16. The ground taken by the defendant-petitioner against plaintiff’s claim in connection with point of demolition and construction of the first floor for the residential purposes, it is quite apparent that the genuineness of the plaintiff’s claim cannot be discarded merely because the area in which the house in question is situated is a commercial area. The specific claim of the plaintiff was that he wanted to start his business in the ground floor and use the upper floor for his residential purposes, specially when admittedly he had no other residential accommodation and was living with his family in a rented premises. This aspect of the matter has not been disproved by the defendant by any evidence as none of the exhibits produced by him concerned the said point and even the defendant’s witnesses instead of disproving the said claim of the plaintiff had given contradictory statements with regard to the condition of the building. Some of them stated that it was dilapidated whereas some other stated that the said building was not dilapidated, hence the evidence adduced on behalf of the defendant, both oral and documentary does not inspire confidence. 17. Much emphasis has been given by learned counsel for the defendant- petitioner on the agreement of 1992 (Ext.A). No doubt the said agreement had been signed by both the parties and in the said agreement it was stated that if the plaintiff intended to construct a market-cum-residential complex in place of the old building, one shop room should be given to the defendant in the ground floor and the construction would be made in such a manner that the defendant will not have to close his business. The said agreement was already about a decade old when the suit for eviction of the defendant was filed on the ground of personal necessity. Furthermore, there is neither any claim of the plaintiff nor any assertion of the defendant that the plaintiff is going to construct any market-cum-residential complex in the premises in question. Having specifically found that the income of the family of the plaintiff was quite meagre and he required the suit premises for his requirement of starting his own business in the entire ground floor, there was no occasion or basis for the court to assume that the plaintiff was going to construct any market-cum- residential complex therein in which the defendant could be accommodated in terms of the aforesaid agreement. 8 18. In the aforesaid facts and circumstances this court finds that the plaintiff-opposite party has been able to sufficiently prove that he had bonafide requirement of the suit premises for starting his business in the ground floor and for demolishing and constructing the first floor for residence of his family. Furthermore the defendant has miserably failed to disprove the claim of the plaintiff by any cogent material in that regard, hence the findings of the learned court below with regard to personal necessity is hereby affirmed. 19. So far the point of partial eviction is concerned, the learned court below had considered the said issue in detail in paragraph-28 of the impugned judgment. Considering the area of the suit premises as well as the nature of business which the plaintiff intends to start with his wife it is quite apparent that not only partial eviction from a portion of the suit shop would be insufficient, rather the entire suit premises would not be sufficient for the purposes of the said business intended by the plaintiff and hence he has filed another suit for eviction of the tenant of the adjacent shop and the said suit has also been decreed by the learned court below. Hence the learned court below was quite justified in deciding the said issue in favour of the plaintiff. 20. In addition to the aforesaid facts and circumstances, it is quite apparent from the materials on record as well as the admitted claims of the parties that neither the plea of partial eviction was taken by the defendant in his pleading nor any evidence had been adduced by him to show that defendant’s partial eviction from the suit premises would satisfy the requirement of the plaintiff. Hence the defendant was not legally justified in raising such a plea at this stage, specially when it is manifest from the impugned judgment that the learned court below was fully aware of the point of partial eviction and had discussed it properly. Reference in this regard may be made to the decisions of this court in case of Food Corporation of India & Ors. vs.Vishun Properties & Enterprises & Ors., reported in 1995 B.B.C.J. 711 as well as in case of Om Prakash Sharma Vs. Kishun Mistry, reported in 1985 P.L.J.R. 727 and also in case of Haveli Ram Bhatia Vs. Smt. Rajwanti Devi, reported in 1984 P.L.J.R. 207. 21. In view of the aforesaid discussions, it is quite apparent that both the points raised by the defendant-petitioner with regard to the personal necessity and partial eviction fail and this court does not find any illegality or jurisdictional error in the 9 impugned judgment of the learned court below with respect thereto. Accordingly, this civil revision is dismissed. But in the facts and circumstances of this case there will be no order as to cost. Patna High Court, (S.N. Hussain, J.) Dated, the 10th August, 2009 N.A.F.R./harish