Ms United Cycle Stores Through Its Partner Dharam Pal Bhatia And Ors. Vs Bijay Kumar Sarawagi And Ors.

¶1

2025: JHHC:18213

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶3

S.A. No. 36 of 2017

¶4

M/s United Cycle Stores, a partnership firm carrying on business at Main Road, P.S. Hindpiri, P.O. & District Ranchi through its partner, Dharam Pal Bhatia, son of late Bishamber Das Bhatia and resident of c/o United Cycle Stores, Main Road, P.S. Hindpiri, P.O. and District Ranchi

¶5

Dharam Pal Bhatia

¶6

Rajendra Bhatia

¶7

Avinash Chandra Bhatia Appellant Nos.3 and 4 residents of C/o General Cycle Store, Near overbridge, Ranchi, P.S., P.O. & District Ranchi

¶8

Prem Bhatia Sons of late Bishamber Das Bhatia and residents of c/o united cycle stores, Main Road, P.S. Hindpiri, P.O. and District Ranchi

¶9

… … Defendants/Appellants/Petitioners Versus

¶10

Bijay Kumar Sarawagi, son of late Rikhab Chand Sarawagi, residents of Civil Surgeon’s Bungalow, Main Road, P.S. Hindpiri, P.O. and District Ranchi

¶11

Shree Sarawgi, wife of late Prakash Chand Sarawgi

¶12

Mukesh Sarawagi, son of Late Prakash Chand Sarawgi

¶13

Pinki Sarawgi, daughter of late Prakash Chand Sarawgi

¶14

Asha Sarawagi, daughter of Late Prakash Chand Sarawgi All residents of Civil Surgeon’s Bungalow, Main Road, P.S. Hindpiri, P.O. and District Ranchi

¶15

… .. Plaintiffs/Respondents/Respondents

¶16

Sajan Kumar Sarawagi

¶17

Ramawatar Sarawagi

¶18

Santosh Kumar Sarawagi All sons of late Rikhab Chand Sarawagi

¶19

Smt. Usha Devi Kataruka, wife of Dilip Kataruka All residents of Civil Surgeon’s Bungalow, Main Road, P.S. Hindpiri, P.O. and District Ranchi

¶20

10.Smt. Bimla Devi Harbhojanka, wife of Sohan Lal Harbhojanka, C/o M/s Giridhari Lal Sohanlal Katre, Dhobia, Chandni Chowk, P.S. Chandni Chowk, P.O. & District Delhi

¶21

11.Mrs. Subhash Bhatia, w/o late Subhash Bhatia, C/o United Cycle Stores, Main Road, P.S. Hindpiri P.O. & District Ranchi

¶22

1

¶23

2025: JHHC:18213

¶24

12.Chandrakala Devi Kejriwal, w/o Madan Lal Kejriwal, R/o Anand Nagar, A wing, Flat no.302, 60 feet Road, Dev Chand Nagar, P.O. & P.S. Bhagander District West Mumbai …Defendants/Proforma Respondents / Proforma Respondents

¶25

¶26

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

¶27

--For the Appellants : Mr. Amar Kumar Sinha, Advocate : Mr. Sandeep Kumar, Advocate : Mr. Nipun Bakshi, Advocate : Mr. Mrinal Singh, Advocate : Mr. Shubham Kumar Sinha, Advocate For the Respondents : Mr. Shashank Shekhar, Advocate ---

¶28

12 /08.07.2025

¶29

Heard the learned counsel appearing on behalf of the appellants. 2. This appeal has been filed against the judgement dated 06.10.2016 (decree signed on 25.11.2016) passed by the learned Additional Judicial Commissioner – V, Ranchi, whereby Title Appeal No.146 of 2009 has been dismissed and the judgement dated 31.10.2009 (decree signed on 13.11.2009) has been confirmed. The trial court judgement was passed by learned Sub-Judge II, Ranchi in Eviction (Title) Suit No.9 of 1987 and eviction suit was decreed.

¶30

3. The learned counsel for the appellants has submitted that although the defendants have lost in both the courts, still there are substantial questions of law involved in this case.

¶31

4. The learned counsel has submitted that three title appeals arising out of three different eviction suits were decided by common judgment and the present appeal arises out of Eviction (Title) Suit No.9 of 1987 corresponding to Title Appeal No.146 of 2009.

¶32

5. The learned counsel submits that the Eviction (Title) Suit No.9 of 1987 was filed seeking eviction of the defendants on the ground of default in payment of rent right from September, 1972 and also for personal necessity. The learned counsel submits that the relationship of landlord and tenant between the parties is not in dispute. The defendants had categorically denied the allegation of default in payment of rent inasmuch as the rent was being remitted at the rate of Rs.50/- per month through money order and this was substantiated by

¶33

2

¶34

2025: JHHC:18213

¶35

exhibiting the money order receipts and money order coupons which were exhibited as Exhibits – G to G/164 and Exhibits - F to F/281 respectively. The learned counsel submits that as per the provisions of Section 11 (1) (d) of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, (hereinafter referred to as the aforesaid Act of 1982), in order to maintain a suit for eviction on the ground of default in payment of rent, the default should be for two consecutive months, but the findings of the learned trial court does not reveal that there were consecutive defaults in payment of rent.

¶36

6. The learned counsel has further submitted that as per the aforesaid provision under Section 11(1) (d), the rent has to be paid by the last day of the month following next for which the rent is payable and therefore the finding of the learned court that the rent was not paid within the agreed period by 7th of every month is also perverse and not in accordance with the law. The learned counsel has further submitted that the agreement on the basis of which such a stipulation has been read was an unregistered document and was not admissible in the eyes of law and therefore terms and conditions of tenancy that the rent was to be paid by 7th of each month was not applicable. The learned counsel submits that the findings of the learned courts that the appellants were in default in payment of rent in terms of Section 11(1)(d) of the aforesaid Act of 1982 is not in accordance with law, and therefore, substantial question of law be framed as to “whether the appellants could be termed as a defaulter in payment of rent in the facts of this case?”.

¶37

7. The learned counsel has also submitted that the learned trial court had recorded a finding that in spite of fixation of fair rent at the rate of Rs. 412.5 per month, vide order dated 24.06.1985, in the present case, the last paid rent, i.e., Rs.50/- per month, shall be deemed to be the payable rent and the payable rent would not be the fair rent as fixed by the rent controller. The learned counsel submits that in spite of the aforesaid findings regarding payable rent, the learned 1^st appellate court has recorded a finding that the payment was not made as per the fair rent fixed vide order of the rent controller

¶38

3

¶39

2025: JHHC:18213

¶40

dated 24.06.1985 while holding that the defendants were defaulter in payment of rent. The learned counsel submits that such a finding could not have been recorded by the learned 1^st appellate court as the finding of the learned trial court that Rs.50/- would be the deemed rent for the premises, irrespective of the order dated 24.06.1985 passed by Fair Rent Controller was final in absence of any cross-appeal or crossobjection and there was no scope for the learned 1^st appellate court to differ with the aforesaid finding and consequently record a finding of default in payment of rent by referring to the order of fair rent fixed vide order dated 24.06.1985.

¶41

8. With respect to the findings of both the courts on the point of bonafide requirement of landlord and in good faith, the learned counsel for the appellants has submitted that the defendants had denied the claim of the plaintiffs and it was stated by the defendants that the plaintiffs were in possession of abundant properties. It was stated that the shop Tip Top was vacated on the ground of requirement by the plaintiffs but the plaintiffs did not occupy the same or started any business therein though the shop was located at Ranchi Chaibasa Main Road. It was also the case of the defendants that all the sons of the original plaintiffs were engaged in their respective business trade and service and none of the sons of the original plaintiffs were sitting idle. It was asserted that the plaintiffs had 124 kathas of land with constructed shop in part thereof and therefore the claim of eviction of the suit premises on account of personal necessity was nothing but the mere wish and desire of the plaintiffs which does not come within the purview of Section 11 (1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. The learned counsel submits that the case of the defendants was not properly appreciated by the learned courts and therefore the finding of the learned courts with regard to bonafide requirement of the plaintiffs is also perverse for which substantial question of law is required to be framed and answered.

Findings

4

2025: JHHC:18213

9. After hearing the learned counsel for the appellants and going through the materials on record, this Court finds that the following issues were framed by the learned trial court:

¶46

(I) Is the suit maintainable in its present form?

¶47

(II) Is there any cause of action for the suit?

¶48

(III) Is the suit barred by principle of waiver, acquiescence and estoppel?

¶49

(IV) Is the suit barred by principle of res-judicata?

¶50

(V) Have the defendants committed default in payment of the monthly rent of the premises?

¶51

(VI) Have the defendants committed any breach of terms of tenancy?

¶52

(VII) Whether the plaintiffs require the suit premises reasonably and in good faith?

¶53

(VIII) As to what relief or reliefs the plaintiffs are entitled to?”

¶54

10. The relationship of landlord and tenant is not in dispute and the arguments have been advanced only with respect to issues Nos. V and VII.

¶55

Ground of default in payment of rent

¶56

11. The learned trial court, while deciding issue No.V regarding default of payment of rent was of the view that the last paid rent was Rs.50/- for each month which would be deemed to be the fair rent by observing that the writ petition arising out of fair rent order was pending and was finally dismissed during the pendency of the suit. This finding was recorded in spite of the fact that fair rent was already fixed vide order dated 24.06.1985, and the suit was instituted in the year 1987. Thus, the learned trial court took the payable rent as Rs.50/- per month instead of much higher fair rent as fixed vide order dated 24.06.1985 by the rent controller and decided the point of alleged default in payment of rent.

¶57

12. The learned trial court appreciated the documents filed by the defendants with regard to payment/remittance of rent, and the discussion in connection with default in payment of rent has been recorded at internal page no.16 of the trial court judgment, and

¶58

5

¶59

2025: JHHC:18213

¶60

further discussion is at internal page no. 23 , which are quoted as under:

¶61

“With regard to Title Eviction Suit No. 9/87 the tenant was liable to pay rent by 7th of every month as well appear from Ext- 9/A which is the tenancy agreement between the landlord and the original tenant and the defendant has filed M. O. receipt as well as M. O. coupons to show that they have tendered the monthly rent within stipulated period of time and the M. O. receipts are the documents which will show as to when the money order was sent and therefore it is an important document M. O. receipts are Ext- G to G/164 and M. O. coupons are Ext- F to F/281. Thus, it is also clear that money order coupons have been filed in large number and for each money order coupons the postal receipts have not been filed which is the important document to show that the money order was validly sent. The M. O. receipts Ext-G/2, G/3, G/5 to G/14, G/16, G/18 to G/27, G/29, G/30, G/32, G/34 to G/38, G/40 to G/47, G/49 to G/57, G/59 to G/62, G/64, G/66, G/68, G/69,, G/71, G/76, G/77, G/82 to G/86, G/90,G/91, G/93 to G/98, G/ 100, to G/105, G/107 to G/118, G/121, G/122, G/124 to G/163 goes to show that the money order coupons have been sent after the stipulated period of 7th day of respective month.

¶62

………………………………………………………………….. Further the defendants have filed money order coupons in title suit 9/87 which are marked Ext – F series (i.e Ext – F to F/281. From the money order coupons it appears that there is no money order coupon for the month of December 1973, December 1974, February 1975, November 1975, May 1981, June 1981, August 1981, September 1982, April 1987, February 1988 and May 1988.”

¶63

13. On the point of default in payment of rent, the learned 1^st appellate court recorded findings that there are no money order coupons for the month of December 1973 December 1974, February 1975, November 1981, June 1981, August 1981, September 1982 April 1987, February 1988 and May 1988 and held that for these months there have been no remittance of rent by the defendants.

¶64

14. The findings of the learned 1^st appellate court on the point of default in payment of rent is as follows: -

¶65

“With regard to the title Eviction case no 09/87 as per ext-9/A lease between the original landlord and the original tenants the monthly rent was payable by the 7th of every month. Initially

¶66

6

¶67

2025: JHHC:18213

¶68

lease was for six months but it was agreed in it if the tenant remain and continues in possession then the tenancy will be months to months and both the parties shall abide by the conditions of this lease on behalf of the defendants to show that there was no default and monthly rent was regularly paid through money order marked Ext-G to Ext-G/164 and money order coupons Ext-F to Ext-F/281. There is large difference between number of money order receipts and money order coupons, for each money order coupons postal receipt has not been filed. Money order receipt is the best evidence of the remittance of rent. Out of money order receipts filed Ext-G/2, G/3, G/5 to G/14, G/16, G/18 to G/27 and many more goes to show that rent was not remitted by the defendants to the landlord through money order within the stipulated period i.e 7th of respective month. Further from the money order filed by the defendants it transpires that there is no money order coupons for the month of December 1973 December 1974, February 1975, November 1981, June 1981, August 1981, September 1982 April 1987, February 1988 and May 1988. therefore, defendants had failed to establish that rent was remitted by him to the landlord for each and every month of the disputed period. Since the defendants has not remitted monthly rent for the period of several months more than three months. Therefore, they have defaulted in payment of rent as per Section 11(1)(d). Therefore, finding of the learned lower court is confirmed in this regard.” 15. The learned 1^st appellate court also recorded a finding that the defendants did not remit the fair rent which was payable in terms of the order passed by the Rent Controller dated 24.06.1985 and hence remitted partial rent after June 1985. The findings are as follows: -

¶69

“It further transpires from the order that the fair rent was payable from the order of the rent controller i.e. 24.6.1985. Writ petitions filed against this order were dismissed by Honble court. Therefore, I find that defendants were obliged to pay aforesaid fair rent to the landlord from 24.6.1985. but the defendants have never remitted aforesaid fair rent to the plaintiffs landlord. Therefore, they have remitted partial rent for the period from 24.6.1985. in this way I also find and hold that defendants are defaulter in all the aforesaid cases. Accordingly, this issue is decided in favour of the plaintiff and against the defendants and finding of the learned lower court is confirmed.”

¶70

16. The fact that the rent controller had fixed the rent was also not in dispute. This Court is of the considered view that mere absence of cross-appeal or cross-objection from the side of the landlord before

¶71

7

¶72

2025: JHHC:18213

¶73

the 1^st appellate court with regard to the finding of the learned trial court that the fair rent would be deemed to be at Rs. 50/- per month irrespective of the fixation of fair rent by the competent authority, i.e., the rent controller, vide order dated 24.06.1985, has no bearing in the matter. This is due to the reason that all the points regarding default in payment of rent were directly and substantially in issue before the learned 1^st appellate court and were contested and the learned 1^st appellate court being the final court of fact and law was required to consider every aspect of the matter while dealing with the point of default in payment of rent.

¶74

17. The argument of the learned counsel for the appellants that the lease deed being an unregistered agreement could not be relied upon to hold that the monthly rent was payable by the 7th of every month has no bearing in this case as the learned 1^st appellate court has clearly held that there was no remittance of rent for several months and only partial rent was paid after June 1985. Further there is clear finding by the learned trial court and also the learned 1^st appellate court that there is no proof of remittance of rent for the period December 1973 December 1974, February 1975, November 1981, June 1981, August 1981, September 1982 April 1987, February 1988 and May 1988.

¶75

18. So far as the argument regarding absence of consecutive default is concerned, the law is settled in this regard. In the judgement passed by the Hon’ble Patna High Court reported in AIR 1975 Patna 154 (Madholal and Ors. Vs. Madan Mohan Agrawalla and Ors.) , the question for consideration was when could two months’ rent lawfully payable by the tenant and due from him be said to be in arrears. It has been held that for attracting the provisions of Section 11 (1) (d) of the aforesaid Act of 1982, there need not necessarily be default in payment of two consecutive months’ rent. In the said case, the learned trial court had concluded that rent for April 1962 and June 1962 were not tendered in time and held the tenant as defaulter and such finding was upheld.

¶76

19. In the judgement reported in 1989 PLJR 587 (Sayeed Abdul Wahab Vs. Md. Sakman @ Lokman) it has been clearly held vide

¶77

8

¶78

2025: JHHC:18213

¶79

paragraph 13 that this Court on a number of occasions that in order to hold a tenant a defaulter in payment of rent, consequent default is not necessary. Paragraph 13 of the aforesaid judgement is quoted as under:

¶80

“13. It has been held by this Court on a number of occasions that for the purpose of coming to the finding that a tenant has become a defaulter in respect of two months rent lawfully payable by him, it is not necessary that the tenant would default in payment of rent of two consecutive months. Reference in this connection may be made in Raj Kumar Prasad v. Uchit Narain Singh, reported in A.I.R. 1980 Patna 242, 1980 PLJR 195(FB); Tip Top v. Indramani reported in 1982 B.B.C.J., 433 and Sadanand Das v. Md Hussain reported in 1986 P.L.J.R. (S.C.), 46.”

¶81

20. Thus, the law is well settled that in order to attract Section 11(1)(d) of the aforesaid Act of 1982, the default need not be for consecutive two months and thus no question of law much less any substantial question of law arises on the point raised by the learned counsel for the appellants that there has to be consecutive default for two months in order to attract section 11(1) (d) of the aforesaid Act of 1982.

¶82

21. Accordingly, all the arguments of the learned counsel for the appellants with regard to formation of substantial question of law on the point of default in payment of rent are devoid of any merits. This Court is of the view that the findings of the learned 1^st appellate court with regards to default in payment of rent are well reasoned findings and based on appreciation of materials on record and no perversity as such has been pointed out by the learned counsel for the appellant in the appreciation of evidence by the learned court. Finding of default in payment of rent is essentially a question of fact. This Court is of the considered view that no question of law, much less any substantial question of law, is involved.

¶83

Ground of personal necessity.

¶84

22. So far as the point regarding personal necessity is concerned, the same has been considered by the learned trial court including the point regarding partial eviction. The learned trial court has recorded

¶85

9

¶86

2025: JHHC:18213

¶87

clear finding that on the date of filing of eviction petition, alternative building was not available to start the business nor it has come on record that the alternative building was suitable and in absence of any evidence to that effect, it could not be concluded that the personal necessity was not bonafide. The learned trial court also considered the plea of plaintiff no.1 that the suit premises was required to carry out the restaurant business and also considered the stand of the defendants that the plaintiff no.1 had never carried restaurant business and had no experience of restaurant business. The learned trial court recorded that it is not necessary to have any experience to start business and at the same time held that the plaintiffs had experience of doing restaurant business and for that purpose, the plaintiffs had produced Exhibit 13 the deed of dissolution of partnership and also Exhibit 2 which was the income tax assessment order which clearly showed that the plaintiff no.1 was doing restaurant business in the name of “Satkar hotel”. The learned trial court also recorded that it has been well settled by judicial precedence that the tenant cannot dictate the plaintiffs as to what premises he should occupy and none of the witnesses came to say that the premises having above 2000 sq. ft. facing main road for restaurant purpose was available. The learned trial court also held that the partial eviction was also not possible because the plaintiffs’ case was that he has to remove the dividing walls of the suit premises to suit for the purposes of restaurant business. The learned trial court further recorded that it had come in evidence that Tip Top premises has been occupied by the plaintiffs which was vacated after court’s order but it had not come in evidence as to whether the said premises was suitable for the business of the restaurant or not. The court also recorded that the defendants failed to prove about the fact that there was other suitable available for the plaintiffs to do business of the restaurant which were located at the main road. The learned trial court ultimately recorded a finding that the suit property was situated at main road and there were big hotels, marketing complex etc. near the suit premises and it was best suitable for restaurant business and the defendants failed to prove that the

¶88

10

¶89

2025: JHHC:18213

¶90

shops and other premises were available to the plaintiffs to start restaurant business and therefore found that the suit property was reasonably and bonafidely required by the plaintiffs for own use as well as for the use and occupation of the family members also in good faith and the issue was decided in favour of the plaintiffs.

¶91

23. With regard to the plea of personal necessity, the learned 1^st appellate court after considering the materials on record held that the plaintiff no.1 was doing a restaurant business in the name of “Satkar hotel”. The court found that the proposed restaurant business could not be successfully operated if the tenant was only partially evicted from the suit premises. The learned 1^st appellate court after scrutinising the materials on record upheld the conclusion arrived at by the learned trial court that the properties involved in the case was best for restaurant business. The defendants failed to prove that the shops and other premises available to the plaintiffs were suitable for starting a restaurant business. Therefore, the court held that the requirement of suit premises by the plaintiffs was bonafide, for their own use and occupation by family members and in good faith. Consequently, the finding of the learned trial court regarding personal necessity was upheld.

¶92

24. Apart from the aforesaid point regarding default in payment of rent and the point of personal necessity, no other point has been argued by the learned counsel appearing on behalf of the appellants.

¶93

25. This Court finds that there are concurrent findings recorded by both the courts on the point of default and on the point of personal necessity, and both the courts, after scrutinizing the materials on record, gave findings in favour of the plaintiffs. There is no scope for re-appreciation of materials on record at the stage of second appeal. No perversity in the matter of evidence as such has been pointed out by the learned counsel for the appellants, during the course of hearing, calling for framing any substantial question of law.

¶94

26. In view of the aforesaid facts and circumstances, this Court finds no merit in this second appeal, which is hereby dismissed.

¶95

11

¶96

2025: JHHC:18213

¶97

27. Pending interlocutory application, if any, is dismissed as not pressed.

¶98

28. Let this judgement be immediately communicated to the court concerned through FAX/e-mail.

¶99

(Anubha Rawat Choudhary, J.)