IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.490 of 2010 MD. NOORUDDIN @ NOORUDDIN, SON OF LATE KAMRUDDIN, PROPRIETOR OF “LIBERTY TAILOR” NEEMCHAND ROAD, JAMUNA MARKET, KISHANGANJ, RESIDENT OF MOHALLA-NAYEE BASTI KARBALA ROAD, P.S. KISHANGANJ, DISTRICT-KISHANGANJ. ………………………………….DEFENDANT……PETITIONER. Versus SHRI RABINDRA KUMAR SINHA, SON OF LATE JAMUNA PRASAD SINHA, RESIDENT OF MAHABIR MARG, KISHANGANJ, P.S. AND DISTRICT-KISHANGANJ. ………………………………PLAINTIFF…OPPOSITE PARTY. ----------- For the Petitioner : Mr. Rashid Alam, Advocate. For the Opposite Party : M/s. Ramesh Kumar Agrawal & Vikas Kumar Singh, Advocates. -------------- 7. 16.12.2010. The sole defendant-petitioner has filed this Civil Revision under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as “the Act” for the sake of brevity). This Civil Revision is directed against the order of eviction of the sole defendant-petitioner passed by the learned Munsif Sadar, Purnea, vide judgment dated 10th of March, 2010 in the Eviction Suit No.8 of 1998/8 of 2005, which was filed by the sole plaintiff-opposite party. This matter has travelled upto this High Court twice 2 on earlier occasion. The defendant-petitioner had challenged the judgment of eviction passed in the suit earlier in Civil Revision No.479 of 2007. The same was allowed and the matter was remitted back to the court below for fresh consideration on the ground that there was non consideration of the evidence of D.Ws.3, 5 and 6 as well as Exts. B and C series in the concerned judgment. Thereafter, again the suit was heard and was decided and again the defendant-petitioner was ordered to vacate the suit premises. The impugned order was again challenged in Civil Revision No.1112 of 2008 on the ground that the direction of this Court had not been complied in clear terms. The matter was yet again remanded back for fresh consideration specifically for consideration of the evidence of D.Ws.3, 5 and 6 as well as Exts.B and C series. Thereafter the matter has again been heard and decided by the court below and, by the impugned judgment, the defendant-petitioner has yet again been ordered to vacate the suit premises. Shorn of details, the necessary facts for consideration of the controversy in question are as follows: The case of the plaintiff is that the defendant- petitioner is month to month tenant of 6’ X 16’ shop of the suit 3 premises described in the Schedule-A of the plaint, under the plaintiff, who is sole owner of the suit property, upon payment of monthly rental of Rs.360/-. Plaintiff claims that he is a young educated unemployed person having earning of Rs.6000/- per month received as rent deposited by various tenants of the premises in which the concerned shop of the defendant-petitioner is also situated. He has got one son and two daughters and for education and maintenance of his family his income of Rs.6000/- per month is meagre and, as such, he wants to start a business of the readymade garments in the suit premises wherein the defendant-petitioner is running a tailoring shop as that is the best and suitable shop. Plaintiff claims that the area of the suit shop being 6’ X 16’ only, his purpose would not be served by partial eviction of the defendant-petitioner. Accordingly, the plaintiff requested the defendant-petitioner to vacate the suit premises, however, no heed was paid to his request. Thus, the present suit has been filed for eviction of the defendant-petitioner on the ground of bonafide personal requirement of the suit premises by the plaintiff himself. The defendant-petitioner has contested the suit by filing written statement and leading evidence. 4 It has been claimed by the defendant-petitioner that the plaintiff is not the sole owner of the suit property. However, he has not disclosed the names of his other co- sharers. It is further claimed that the size of the suit premises has been reduced by three feet from south upon the cost of Rs.10,000/- incurred by the defendant. However, the defendant has admitted to have been inducted as a tenant in the suit premises. The defendant claimed that he had paid Rs.25000/- and again Rs.15000/- to the plaintiff, which are yet to be refunded by him. The claim of personal requirement of the plaintiff of the suit premises has also been refuted by the defendant alleging that the plaintiff is having good source of income from other tenants and also from dairy farm and his earnings is not less than Rs.12000/- per month. It is claimed that the plaintiff has taken a loan from the State Bank of India for running a dairy farm and the defendant has stood guarantor to that. However, when he refused to stand guarantor for taking further loan, it is alleged, he has been subjected to this eviction suit. Further, according to the defendant, the plaintiff was having altogether 17 tenants, however, four shops had been vacated, out of which two shops have been let out by the plaintiff to the different persons and two rooms are still 5 vacant. It is claimed that the need of the plaintiff could well be satisfied from the aforesaid vacant suit premises. It has also been stated by the defendant that he has taken a loan of Rs.1,00,000/-(Rupees One Lac) from the State Bank of India hypothecating the suit shop and upon his eviction from the suit premises, his mortgaged property could be auction-sold by the Bank. On pleadings of the parties, the court below has altogether framed seven issues and on consideration of the materials on record including the evidence led on behalf of the plaintiff and the defendant, it has come to the conclusion that the defendant has admitted that he is a tenant of the suit premises at the monthly rent of Rs.360/- per month. The defendant has also admitted that the plaintiff is the landlord but has stated in his written statement that he is not the sole owner of the suit premises, however, no evidence had been led on this fact. Therefore, the factum of landlord and tenant relationship between the plaintiff and the defendant is proved. The issue of the bonafide requirement of the suit premises by the plaintiff reasonably and in good faith for starting readymade garments business for himself has been framed as issue no.5. While considering the issue, the court 6 below has recorded a finding that from careful scrutiny of the Ext.3 series, it appears that in the year 1998, the petitioner had income of Rs.6659/- per month from his 14 tenants and on consideration of the expenditure for imparting education to his children and also for maintenance of his family and upon consideration of the evidence of the defendants, specially, the defendant nos.3, 4, 5 and 6, it has come to the conclusion that it is not proved that the plaintiff is running a dairy farm. The case of the plaintiff is that he had purchased one cow but that had died after one year. He has not been able even to repay the loan of the Bank also. Further, it has been noticed that the other shops of the plaintiff are either inside of the Jamuna Market or at a less busy market road, so he cannot choose those shops for his business. Finally, the court below has come to the conclusion that the plaintiff is having less income and to enhance the same he was desirous to start a business of the readymade garments. The court below has come to the conclusion that the plaintiff requires the suit premises bonafide and reasonably for his personal use. On the issue of partial eviction also, the court below has recorded a finding that the same would not be sufficient for meeting the requirement of the plaintiff. As such, the suit has been 7 allowed and the defendant had been ordered to vacate the suit premises. I have heard learned counsel for the petitioner and the sole opposite party and have also perused the records of this case. Learned counsel for the petitioner submitted that the plaintiff has taken a loan of Rs.25000/- from him on one occasion and Rs.15000/- on another occasion and, thereafter, he has not paid the same and for which a written panchnama was prepared. Thus, the plaintiff has retaliated by filing this suit. It has also been contended that many witnesses have been examined on the issue of this panchayati as well as panchnama. Learned counsel submits that it is clear from the records that the plaintiff has taken loan from the State Bank of India for running a dairy farm and, thus, he cannot have an income of Rs.6659/- only. Learned counsel further submitted that the plaintiff is having other vacant premises also which can satisfy his requirement. It has also been raised on behalf of the petitioner that the court below has shirked from deciding the issue of partial eviction in a proper perspective. He has placed reliance upon few decisions of this Court in Nagendra Prasad Barnwal Vs. Jitendra Prasad Barnwal 8 {1998(2) PLJR 582}, Birendra Singh Vs. Shankar Sah & another {1998(2) PLJR 118} and Shyama Kant Jha and another Vs. Smt. Shakuntala Pandey { 2004(4) PLJR 843}, inviting this Court to hold that the court below was required to record a finding upon partial eviction in accordance with the law laid down in aforesaid cases. It is submitted that in the present case, the same having not been done in accordance with law, the judgment of eviction is vitiated on this ground also. On the other hand, learned counsel appearing for the sole defendant submitted that the case of the plaintiff is that after taking the loan from the Bank, a cow was purchased but she soon died and, as such, he could not run a business of dairy firm. Thus, admittedly, he has not been able to repay the loan to the Bank also, which is evident from the Exts.B and C series, brought on record on behalf of the defendant. That apart, it is also stated that the defendant could not lead evidence to show that the plaintiff is having income of more than Rs.6659/- per month as has been determined by the court below. Learned counsel further submits that the court below has considered partial eviction under a separate issue no.6 and keeping in view of dimension of the shop and requirement of 9 the plaintiff, it has come to the conclusion that the partial eviction would not satisfy the reasonable requirement of the plaintiff. I find substance in the submissions made on behalf of the defendant-opposite party. The court below, after taking into account the evidence led on behalf of the parties, has noticed that the defendant’s witnesses could not categorically say that the plaintiff is presently running a dairy farm and has also to some extent admitted that the plaintiff is having income from the tenanted shops only. Thus, they have not been able to prove that the plaintiff is having more income than claimed. It has also come to the conclusion that the other shops of the plaintiff are either inside the Jamuna Market Road or at a less busy market road. Thus, the plaintiff cannot be compelled to choose those shops as the law is well settled that although a landlord may have two or more premises which have been let out, it is for the landlord to choose which one would be preferable to him or her and the tenant could not question such preference. On earlier occasion, the matter was twice remitted back by this Court as the evidence of D.Ws.3, 5 and 6 as well 10 as Exts.B and C series were not given proper consideration. However, while passing the judgment under challenge, the court below has considered the evidence of the parties in detail including the evidence of the D.Ws.3, 5 and 6 and has noticed that the D.W.3, Pradip Das, has admitted relationship of the landlord and the tenant between the parties and though, he has stated that four shop rooms are vacant in the suit premises but he has not said anything about the dairy farm and income of the plaintiff. Similarly, the evidence of D.Ws.5 and 6 as well as Exts.B and C series have also been considered by the court below while deciding the issue no.V. So far as the partial eviction is concerned, there is a clear cut statement in paragraph-10 of the written statement filed by the defendant that he is not ready for partial eviction as the same would not serve his purpose. However, the defendant has stated in his examination as a witness in paragraph 17 that he is ready for partial eviction but the same is beyond his pleading, thus, cannot have much acceptance. In this regard, reference may be made to the decisions of this Court in Dr. Manchan Shin Vs. Purshottam Das Tondon {2010(2) PLJR 761} as well as Food Corporation of India and others Vs. Vishun Properties & Enterprises & others (1995 BBCJ 711), Om 11 Prakash Sharma Vs. Kishun Mistry (1985 PLJR 727) and Haveli Ram Bhatia Vs. Smt. Rajwanti Devi (1984 PLJR 207). It is quite apparent from the materials on record that there is specific plea in the written statement of the defendant that partial eviction would not serve his purpose, however, he has taken a view contrary to his pleadings while being examined as a witness. However, even if the same is taken into account, it is quite apparent that the court below has considered the point of partial eviction as issue no.V and on consideration that the area of the suit shop being only of 6’ X 16’ in dimension, which is a single small room, has held that the partial eviction of the defendant from the suit premises would not satisfy the reasonable requirement of the plaintiff for starting a readymade garments business. In the above view of the matter, I do not find force in the contentions raised on behalf of the defendant that there has been lack of consideration of the issue of partial eviction in accordance with law. In the above view of the matter and the aforesaid discussions, it is quite apparent that both the points raised by the defendant-petitioner with regard to the personal necessity 12 and partial eviction fail and this Court does not find any illegality or jurisdictional error in the impugned judgment of the court below with respect thereto. Accordingly, this Civil Revision is dismissed. However, in the facts and the circumstances of the case, there would be no order as to cost. P.S. ( Dr. Ravi Ranjan, J)