Dismissed

Mahesh Kumar Khirwal v. Ramlal Sao And Anr.

Jharkhand HC9 Apr 2019SA/218/2005

Case brief

AI extract

What is this about?

This court addressed two second appeals regarding eviction suits filed under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. The landlords sought eviction based on the need for a premises requirement of a private limited company they controlled. The court distinguished a prior High Court case and held that a company is a distinct legal entity, meaning the requirement was not for t

What the court decided

AI extract

Mahesh Kumar Khirwal Vs Ramlal Sao And Anr. — Landlord and Tenant | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S. A. No. 219 of 2005

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(i) Mahesh Kumar Khirwal

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(ii) Sushil Kumar Khirwal

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(iii) Naresh Kumar Khirwal

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(iv) Umesh Kumar Khirwal

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(v) Sanjay Kumar Khirwal

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All sons of Late Satya Narayan Khirwal resident of Holding (Old) No. 107, New Holding No. 154, Jugsalai, P.S.- Jugsalai, Town- Jamshedpur, District- … … Singhbhum East. Plaintiff/Appellant

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Versus

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Surendra Pal Singh.

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Bhopendra Singh

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Balbinder Singh All sons of Harbans Singh, resident of Gowali Bhaubar Road, Jugsalai, P.O. & P.S.- Jugsalai, Town- Jamshedpur, District- Singhbhum East.

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… … Defendants/Respondents

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with

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S. A. No. 218 of 2005

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Mahesh Kumar Khirwal

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Sushil Kumar Khirwal

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Naresh Kumar Khirwal

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Umesh Kumar Khirwal

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Sanjay Kumar Khirwal All sons of Late Satya Narayan Khirwal Resident of Holding (Old) No. 107, New Holding No. 154, Jugsalai, P.O. & P.S.- Jugsalai, Town- Jamshedpur, District- Singhbhum East .

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… … Plaintiff/Appellant Versus

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Ramlal Sao.

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Shivlal Sao Both sons of Nathu Sahu, resident of ‘Neel Kamal’, Marwari Mohall, P.O. & P.S.- Jugsalai, Town- Jamshedpur, DistrictSinghbhum East. … … Defendants/Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants : Mr. Ayush Aditya, Advocate For the Respondents : None

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15 /09.04.2019 Heard Mr. Ayush Aditya, counsel appearing for the appellants in both the cases.

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2. Counsel for the appellants submits that by an order of this Court, both the suits namely, Eviction Suit No. 56 of 1987 and Eviction Suit No. 57 of 1987 were directed to be tried analogously and this fact has been mentioned in para 2 of the trial court judgment. Accordingly, both the suits were taken up together by the learned trial court. He submits that Second Appeal No. 219 of 2005 arises out of Eviction Suit No. 57 of 1987 and Second Appeal No. 218 of 2005 arises out of Eviction Suit No. 56 of 1987.

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3. The counsel for the appellant submits that in aforesaid two second appeals, identical question of law has been framed on 18.07.2011 i.e.

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whether the plaintiff, who is admittedly landlord and owner of the suit premises, can get the suit premises vacated for personal necessity of his own private limited company?

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4. Counsel for the appellants further submits that the plaintiff in both the eviction suits namely, Satya Narayan Khirwal, had filed two separate suits praying for decree of eviction in relation of two suit premises, one occupied by defendant Ramlal Sao and Shivlal Sao, both sons of Nathu Sahu and second premises occupied by Surendra Pal Singh and others. Both the premises are situated in a building mentioned in Schedule A of plaint of both the suits. The suits were number as Eviction Suit No. 56 of 1987 and Eviction Suit No. 57 of 1987. He submits that the suits for eviction was filed under section 11(1) ( c) read with section 14 of Bihar Building ( Lease , Rent and Eviction ) Control Act, 1982 and accordingly the only ground for eviction, which was taken in the eviction suit, was the ground of personal necessity.

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5. The counsel submits that the specific case of the plaintiff was that the plaintiff and his sons carried on business in the name and style of Khirwal Roadways having its branch at Jugsalai, Ranchi, Dhanbad and throughout the State of Bihar.

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Khirwal Roadways was changed to Khirwal Roadways Private Limited from 01.04.1989. He further submits that there was a requirement of the suit premises for godown for the purposes of M/s Khirwal Roadways Private Limited and after the institution of the suit, the plaintiff was compelled to take another godown at Ramtekari Road on a monthly rent of Rs. 1900/- from owner Mahant Bajrang Das, for which an advance of Rs. 40,000/- was paid and an agreement was also executed on 01.12.1987. The counsel for the appellants further submits that as the business in the name and style of M/s Khirwal Roadways Private Limited belongs to the plaintiff and his sons, therefore, on the ground of personal necessity, the suit for eviction was filed and the same was fit to be decreed in favour of the appellants under the facts and circumstances of this case.

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6. The counsel, while advancing his argument, has referred to a judgment passed by Hon’ble Patna High Court reported in AIR 1990 PATNA 95 and submits that in the said judgment, the premises which was required for sister concern was taken to be a ground for personal necessity and in view of the ratio of the aforesaid judgment, the question of law which has been framed by this Court while admitting the appeal is fit to be decided in favour of the appellants.

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7. After hearing the counsel for the appellants, this Court finds that admittedly the plaintiff namely, Satya Narayan Khirwal had filed the aforesaid two eviction suits being Eviction Suit No. 56 of 1987 and Eviction Suit No. 57 of 1987 against the respective defendants only on the ground of personal necessity under Section 11(1)(c) of Bihar Building (Lease, Rent and Eviction) Control Act, 1982. Section 11(1)(c) of the said Act of 1982 clearly provides that where a tenant is in possession of any building, he shall not be liable to eviction

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therefrom except in execution of the decree passed by the court on one or more of the following grounds;

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“(a)….

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(b) ….

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(c) Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord:”

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8. This Court finds that admittedly in the instant cases, the specific case of the plaintiff was that the suit premises were required by the appellant for godown purposes of M/s Khirwal Roadways Private Limited, which is a company incorporated under the provisions of Companies Act, 1956.

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9. This Court finds that the learned trial court has considered this aspect of the matter and has held that the suit premises is neither owned by the company nor the company in any way entitled to realize rent for the suit premises. The company has not filed the suit nor is owner of the suit premises. It is no where mentioned in the plaint by the plaintiff that the plaintiff holds the suit premises for the benefit of the company. Neither in the pleading of the plaintiff nor in evidence of the plaintiff it has been stated that the building was held by the plaintiff for the benefit of the company. The plaintiff may be director of the company by that it can not be established that the plaintiff owns the suit premises for the benefit of the company. The suit has not been filed in the name of company. It is established law that company can sue and can be sued. A director can not file a suit for benefit of the company without making company party in a suit.

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10. The learned lower appellate court upheld the aforesaid findings of the learned trial court by citing identical reasons. 11. This Court is also of the considered view that the company incorporated under the Companies Act, 1956 is a distinct legal entity and no relief could have been granted by the learned courts below for eviction of the respective

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defendants for requirement of the said company in an eviction suit filed by the plaintiff in his individual capacity as he was admittedly the land lord of the premises. As per the provisions of section 11(1)(c) of the aforesaid act of 1982 the condition precedent for eviction under the said clause is that the building must be required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord .

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12. So far as the judgment which has been relied upon by the appellants reported in AIR 1990 PATNA 95 (Padam Singh Jain Vs. Chandra Brothers and Ors.) is concerned, this Court finds that in the said judgment, as per the plaint of the said case , the plaintiff no. 1 firm was a group of concerns and the premises was required for one of its sister concerns. While considering the point of personal necessity, this Hon’ble Court held that the plaintiff itself was a group of concerns and the plaintiffs were the co-owners of the building in question. The Hon’ble Court at para 69 held as follows:

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“69. Thus, there cannot be any doubt that the plaintiffs Nos. 2 to 5, who are owners and/or in any event co-owners of the building in question being also the partners of M/s. Electrical and Machinery, the requirement of M/s. Electrical and Machinery must be held to be for the purpose of their personal occupation as contemplated under Section 11(1)(c) of the said Act. This, as the plaintiffs Nos. 2 to 5 are partners in both the firms, and further in view of the fact that the properties admittedly belong to them, the necessity of the partners of one firm must be held to be their own personal necessity even if they intend to carry on business in the suit premises in the name of another (sic).”

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13. The aforesaid judgment does not apply to the facts and circumstances of this case in as much as in the instant case, the plaintiff is an individual person and he requires the premises for a company, which is a distinct legal entity.

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14. In the instant case, requirement is for the company and not for the land lord or for the benefit of any person for whose benefit the property is held by the land lord. The company is totally stranger and unconnected to the property even if the landlord is none less than one of its directors. This is because of the reason that the company is a distinct legal entity from its directors. In such circumstances, it cannot be said that the plaintiff namely, Satya Narayan Khirwal required the premises for his own occupation or for occupation of any person for whose benefit the building is held by the landlord. The consistent view of the learned courts below on this point does not call for any interference by this Court and the point of law is hereby decoded against the appellant in both the cases.

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15. Accordingly, these two second appeals being S.A. No. 219 of 2005 and S.A. No. 218 of 2005, are hereby dismissed.

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(Anubha Rawat Choudhary, J.)

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Pankaj

Mahesh Kumar Khirwal v. Ramlal Sao And Anr.

Case brief

What is this about?

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Mahesh Kumar Khirwal v. Ramlal Sao And Anr.

Case brief

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