IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1800 of 2009 MOST. GITA SHARMA @ GEETA DEVI, WIDOW OF LATE RAJ KUMAR SHARMA, RESIDENT OF MOHALLA-PURANI BAZAR, RAJJU SAH LANE SONAPATTI, WARD NO.21(NEW) 17(OLD), P.O. RAWNA, P.S.-TOWN, DISTRICT-MUZAFFARPUR. ………………………DEFENDANT NO.1………….….PETITIONER. Versus 1. RADHA RANI SHARMA, WIDOW OF LATE LAKSHMI NARAIN SHARMA. 2. SUDHIR KUMAR SHARMA, SON OF LATE LAKSHMI NARAYAN SHARMA. BOTH RESIDENTS OF MOHALLA-PURANI BAZAR, RAJJU SAH LANE, SONAPATTI WARD NO.21(NEW) 17 (OLD), P.O.- RAMNA, P.S.-TOWN, DISTRICT-MUZARRARPUR. ……………PLAINTIFFS…………..OPPOSITE PARTIES 1ST SET. 3. ASHOK KUMAR SHARMA, SON OF LATE LAKSHMI NARAYAN SHARMA, RESIDENT OF MOHALLA AS PER DECREE,-MOTI GHAT, P.O. RAMNA, P.S. MITHANPURA, DISTRICT-MUZAFFARPUR IN THE HOUSE OF SANJAY SINGH, BUT ACCORDING TO PETITIONER, PURANI BASAR, RAJJU SAH LANE, SONAPATTI WARD NO.21(NEW), 17(OLD), P.O.-RAMNA, P.S. TOWN, DISTRICT-MUZAFFARPUR. ……...DEFENDANT NO.2…………..OPPOSITE PARTY-2ND SET. ----------- For the Petitioner : M/s. Vidya Sagar, Ashok Kumar Singh No.2 & Samir Kumar Ranjan, Advocates. For O.P. Nos.1 and 2 : M/s. B.K. Shukla, S. Parasmani & Amresh Kumar Sinha, Advocates. For O.P. No.3 : Mr. Manoj Kumar, Advocate. ------------ 12. 15.9.2010. This Civil Revision, filed under Section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as “the Act”), is directed against the 2 order dated 6th of August, 2009 passed by the Munsif East, Muzaffarpur, in Eviction Suit No.38 of 2005, whereby the court concerned has ordered the defendant-petitioner to vacate the suit premises and hand over the vacant possession of the same to the plaintiffs-opposite parties and also to pay the arrears of rent accrued during the pendency of the aforesaid suit, i.e., from October, 2005 till the date of recovery of possession and also for paying the electricity bills. Shorn of unnecessary details, short facts necessary for consideration of this case are as follows: The plaintiffs brought the aforesaid Eviction Suit stating therein that the land in question upon which the building has been constructed, as detailed in Schedule-I of the plaint, stands recorded in the name of Lakshmi Narayan Sharma, who died in the year 1976, leaving behind his widow Radha Rani Sharma (plaintiff no.1) and three sons, namely, Ashok Kumar Sharma (defendant no.2), Sunil Kumar Sharma and Sudhir Kumar Sharma (plaintiff no.2) as his legal representatives. Soon after the death of aforesaid Lakshmi Narayan Sharma, all the legal representatives separated in mess, however, the property as described in Schedule-I of the plaint remained joint between them and they were residing therein. It has been 3 alleged that the defendant no.2 illegally inducted the defendant no.1 as tenant without consent of the plaintiffs on payment of rent of Rs.700/- per month which he realized and utilized for his own purpose. This gave rise to a dispute in the family and on 20.12.1997 the property, described in Schedule-I of the plaint, was partitioned between the plaintiff no.1 and her three sons. Schedule-I property was partly allowed in favour of the plaintiff no.1 and partly in favour of the defendant no.2. Subsequently, by two registered sale deeds dated 18.2.1998 and 25.8.1998, the defendant no.2 transferred his share in favour of Saraswati Devi Sarraf and started living in another mohalla. Defendant no.1 was informed by the plaintiff about the partition whereby the suit property fell in her share and since the plaintiffs after the aforesaid partitioned were living in the verandah of the suit premises, defendant no.1 was requested to vacate the suit premises, which was required for personal use of the plaintiffs. Defendant no.1 agreed for vacating the same, however, asked for 6-7 months, and in the meantime, he agreed to increase the rent from Rs.700/- to Rs.1200/- per month alongwith the electricity bills, which defendant no.1 paid for three consecutive months. However, thereafter, he started avoiding payment of the rent and the electricity bills on the pretext that he is going to 4 vacate the suit premises very soon. Plaintiffs submitted that the property, described in Schedule-I of the plaint, is the only residential house belonging to them which they required for their personal residential house. Thus, under the compelling circumstances, the aforesaid Eviction Suit was filed. Defendant no.2 appeared in the suit and refuted the part of the allegations made in the plaint, however, he accepted the partition in the family and also that the tenanted suit premises fell into the share of the plaintiff no.1 and the tenant was also informed regarding the aforesaid fact. He has also supported the plaintiffs‟ case that the defendant-tenant assured to pay rent at the rate of Rs.1200/- per month to the plaintiffs. However, it has been stated by the defendant no.2 that since he has nothing to do with the suit premises after transferring their share to one Saraswati Devi Sarraf, he is not a necessary party in the suit. Defendant no.1 contested the suit by filing written statement and challenged the landlord and tenant relationship between the plaintiffs and the defendant on the pretext that as he has been inducted as a tenant on the rent at the rate of Rs.700/- per month by the defendant no.2, who was the “Karta” of the joint family after the death of aforesaid Lakshmi Narayan 5 Sharma, thus, plaintiffs cannot be held to be his landlord. That apart, it has been stated that all the legal representatives of the deceased Lakshmi Narayan Sharma agreed to sell the suit premises in favour of the defendant no.1 and on 20.12.1998. A deed of agreement for sale on payment of total consideration money of Rs.2 lacs and 50 thousand was executed out of which Rs.1 lac was already paid by the defendant no.1. However, the period for performance of contract was set at 5 years. In the meantime, the Eviction Suit No.13 of 1999 was brought by the defendant no.2, wherein he had accepted receiving Rs.1 lac from the defendant no.1 for repairing of the suit premises. Thus, it has been stated by this defendant that from 20.12.1998, i.e., from the date of the execution of deed of agreement for sale, defendant no.1 ceased to be a tenant and remained in the premises as a holder of agreement for sale. However, when despite notice sale deed could not be executed, he has filed a Case No.328 of 2006 before the Permanent Lok Adalat, Muzaffarpur. During the pendency of the suit, a petition was filed under Section 15 of the Act, for payment of rent at the rate of Rs.1200/- per month. However, the court below directed the defendant to pay the admitted amount of rent at the rate of 6 Rs.700/- per month. The aforesaid order was challenged before this Court in Civil Revision No.1995 of 2007, but the same was dismissed on 4.2.2009. However, since the order passed by the court below under Section 15 of the Act could not be complied with, the defence of the defendant no.1 against the ejectment was struck off. That order was also challenged in Civil Revision No.343 of 2008. In the aforesaid Civil Revision by order dated 6.2.2009, the court below was directed to restore back the defence of the defendant no.1 on the conditions which were laid down therein. Failing compliance of which, it was directed, that the impugned order, striking off the defence against the ejectment, shall be restored. The court below has noticed that the conditions laid down in the aforesaid order of this Court were not complied and, thus, the order striking off the defence of the defendant no.1 against the ejectment remained intact. The court concerned on the basis of the pleading of the parties has framed seven issues in all. Altogether 4 witnesses were examined on behalf of the plaintiffs and certain documentary evidence were also brought on record. The defendant no.1 examined altogether 14 witnesses on his behalf. 7 Upon consideration of materials on record, the court below has recorded a finding that there is a landlord and tenant relationship between the plaintiffs and the defendant no.1. Further, the plaintiffs need the suit premises for their residential purposes and no purpose would be served from partial eviction of the tenant therefrom. The court below has also directed to pay the pendente lite rent at the rate of Rs.1200/- per month as it has held that the tenancy of Rs.700/- per month was enhanced to Rs.1200/- per month. The defendant no.1 has also been directed to pay the electricity bills. I have heard learned counsel for the petitioner and the opposite parties and have perused the records of this case. Learned counsel for the petitioner submits that even though the defence against the ejectment of the petitioner stands rejected on the ground of technical flaw that challan was not properly submitted, since the defendant was willing to comply the order passed by this Court, his defence against the ejectment should have been restored. Alternatively, even though the defence against the ejectment has been struck off, the court below was duty bound to look into the materials on record and come to a proper finding regarding bonafide requirement of the plaintiffs of the suit premises. It has further been contended 8 that the court below while deciding the petition filed by the plaintiffs under Section 15 of the Act has directed the defendant to pay rent during the pendency of the suit at the rate of Rs.700/- per month. Thus, there was no occasion for it to enhance the same at Rs.1200/- per month. Further contention was that electricity bill was not paid as electricity line was disconnected long back. Further, the court concerned while deciding the suit under the Act cannot direct the defendant for payment of electricity bill as the same can not be treated as part of the rent. This was also urged that as per the agreement dated 20.12.1998 between the heirs and legal representatives of Late Lakshmi Narayan and the defendant no.1, the suit property was agreed to sold to the defendants for a consideration money of Rs.two lacs and fifty thousand, out of which Rs.1 lac had already been paid as advance. This fact had been accepted by the defendant no.2 in the earlier Eviction Suit No.13 of 1999. However, deliberately it has been stated that Rs.1 lac was given for remodeling and repairing of the suit premises. However, since the contract was not honoured, a case has been lodged before the Lok Adalat. This has also been contended that the petitioner, after the agreement dated 20.12.1998 and part payment of consideration money for sale of the suit premises in 9 his favour, ceased to be a tenant and continued in possession of the suit premises as “Mahadedar”. It has been lastly submitted that the question of partial eviction has not been considered in a proper perspective as per mandate of the statute. Learned counsel appearing on behalf of the plaintiffs- opposite parties submitted that though the defence against the ejectment had been struck off, it appears from the impugned order that the evidence led on behalf of the defendant no.1 has also been meticulously considered by the court below. So far as the enhancement of rent from Rs.700/- to Rs.1200/- per month is concerned, learned counsel submitted that a clear cut case has been made out in paragraph no.9 of the plaint that when the defendant no.1 was requested to vacate the premises, he sought time and agreed to enhance rent at the rate of Rs.1200/- per month till vacating the same. Thus, the same would be rent of the suit premises. An issue was framed in this regard as Issue no.5. The plaintiffs have examined witnesses on this point as P.W.1, P.W.2 and P.W.3. However, none of them had been cross examined by the defendant. In the above view of the matter, the claim of defendant-petitioner against this direction for payment of rent at the rate of Rs.1200/- per month since the date of filing of the suit as well as electricity bills falls flat. 10 I find substance in the submissions raised on behalf of the plaintiffs-opposite parties. By the order dated 4.2.2009 passed in Civil Revision No.1995 of 2007, the order passed by the court below for payment of arrears of rent as well as current rent at the rate of Rs.700/- per month was upheld by this Court. However, in the subsequent Civil Revision No.343 of 2008, the defence against the ejectment was directed to be restored on the conditions that Rs.5000/- was paid within 30 days from the date of the order and the defendant no.1 shall deposit the entire dues as required by the order dated 13.8.2007 passed by the court below within 45 days. Failing compliance of either of the aforesaid conditions, the impugned order dated 3.1.2008 striking off the defence against the ejectment was directed to be restored. That order not having been complied with, as has been noticed by the court below, the defence against the ejectment was rightly not restored. At the stage of argument of the suit, a petition was filed by the defendant-petitioner for recalling P.W.1, P.W.2 and P.W.3 for their cross examination. However, the same was rejected by the court below vide order dated 6.6.2009. The same was challenged in Civil Revision No.1104 of 2009 and a Bench of this Court taking notice of the terms and conditions 11 laid down by this Court in the final order passed in Civil Revision No.343 of 2008 and after noticing the fact that the aforesaid terms and conditions could not be complied with within time, had held that the court below had rightly rejected the prayer of the defendant no.1 for recalling P.W.1, P.W.2 and P.W.3 for their cross examination. Learned counsel for the petitioner submitted that the court below while directing the defendant for payment of rent as well as while passing orders against ejectment striking off the defence, should have considered the case of the parties in the right perspective as has been held by this Court in Rana Ranjit Singh Vs. Arjun Sharma {2005(3) BBCJ page V-239)}. However, the aforesaid rent was fixed on the admitted case of the defendant no.1 that he was inducted as a tenant by the son of the plaintiff no.1 on the payment of rent at the rate of Rs.700/- per month. Thus, this contention of the defendant also has no legs to stand. So far as the bonafide requirement of the suit premises by the plaintiffs is concerned, it has been held that after consideration of evidence led on behalf of the parties by the court concerned, the plaintiffs have been able to prove the aforesaid facts. Learned counsel for the defendant could not point out any error in the aforesaid finding recorded by the trial 12 court. So far as the issue raised by the petitioner regarding agreement for sale dated 20.12.1998 is concerned, the same would not help him inasmuch as by now it is well settled that the question of performance of contract cannot be dealt with and decided in a suit for eviction filed on the ground of requirement of the premises for personal use by the plaintiffs. The agreement for sale, even if is accepted for the moment, would not in itself ipso facto confers title upon the agreement holder. However, in this case that has been denied by the plaintiffs and as has been observed above, this issue cannot be decided in the case in hand. The question of enhancement of rent from Rs.700/- per month to Rs.1200/- per month also stands established in view of the pleading and evidence led on behalf of the plaintiffs and also due to the fact that P.W.1, P.W.2 and P.W.3, examined on this point alongwith other issues have not been cross examined at all. Thus, this plea of the defendant is also not tenable. However, so far as the payment of electricity bill is concerned, neither any relief has been sought in the plaint except the statement made in paragraph no.9 of the same, nor has any issue been framed in this regard. Thus, the direction of 13 the court below for payment of electricity bill concerned does not seem to be proper. In the above view of the matter, the impugned order to that extent regarding payment of electricity bill is hereby set aside. While dealing with the issue of partial eviction, the trial court has recorded a finding only on the basis of the plaintiffs‟ assertion that there are only two rooms on the first floor of the suit premises. 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 is duty bound to record a finding regarding the adequacy of the requirement of the plaintiffs. It should have considered the dimension of the suit premises in question and the requirement of the plaintiffs for coming to the conclusion regarding the fulfillment of the requirement of the plaintiffs upon partial eviction of the tenant. A Division Bench of this Court in the case of M/s Bihar Alloy Steel Limited v. Hari Shankar Worah (Properties) Limited and another, reported in 1987 Patna Law Journal Reports, 868, has taken notice of the provision, as contained in proviso to Section 11(1)(c) of the Act and has come to the conclusion that the Legislature has chosen to 14 qualify the word, “satisfied” by the expression „substantially‟, with a view to keep the interest of the tenant protected by providing occupation to him of the building in part, and granting to the landlord occupation to meet his reasonable requirement. In yet another decision in the case of M/s Bharati Pustak Kendra and others v. Chhedi Lal Daruka, reported in 1992(2) Patna Law Journal Reports, 692 a Division Bench of this Court has held that the finding of the court recorded on the basis of willingness or unwillingness of the parties and making its own assumption based on that would not be valid and would be liable to be set aside. It is clear that while considering the question of partial eviction under the Act the court has first to consider the reasonable requirement of the landlord and then to consider as to whether reasonable requirement could be satisfied from eviction of the tenant from the part of the premises. This question has to be decided on the basis of the materials on record and not only on the basis of ipse dixit of the landlord or his desire to occupy as much area as he wants. Similar view has been taken by this Court in several other decisions rendered in Smt. Sudha Devi and another v. Smt. Shanti Devi(1995(1) All Patna Law Reporter), Maheshwar 15 Pd. Sharma v. Shobha Devi, (1998(1) All Patna Law Reporter) as well as Nagendra Prasad Barnawal v. Jitendra Pd. Barnawal(1998(2) PLJR, 582). Thus, in my view, the court below in the present case has not considered the question of partial eviction in accordance with the statute and decided the question only on the basis of the desire of the plaintiffs to occupy the entire area. Therefore, the same cannot be held to be a finding recorded in accordance with law. As a result, this Civil Revision is allowed in part. The finding of the court below with regard to the partial eviction is set aside and the matter is remitted back to the court below to consider the question of partial eviction in accordance with law. The court below will afford opportunity to the parties to adduce evidence in this regard. It is made clear that none of the other findings recorded by the court below, except on the partial eviction and payment of electricity bills, have been disturbed and the same are kept intact. Since this is a suit for eviction on the ground of personal necessity, the case requires disposal with utmost expedition. Accordingly, I direct the court below to decide the aforesaid issue within four months from the date of receipt of the lower court records and a copy of this 16 order. It is further made clear that if the defendant-petitioner creates any hindrance in 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 the material brought on record by the plaintiffs. Let the lower court records be immediately sent back to the court concerned. P.S. ( Dr. Ravi Ranjan, J)