Allowed

Smt. Shakuntala Devi v. Sajjan Kumar Bajoria

Patna HC11 Mar 2013C.R./226/2011

Case brief

AI extract

What is this about?

The High Court allowed a revision against an eviction decree. It set aside the trial court's finding that the landlord had a bona fide personal necessity, citing a lack of reasons for preferring a specific shop despite owning a market complex with ample space.

What did the court decide?

The impugned judgment and order passed in Title Eviction Suit No. 18 of 2005 dated 12.09.2011 is set aside. There is no order as to cost.

Smt. Shakuntala Devi Vs Sajjan Kumar Bajoria — Landlord and Tenant | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.226 of 2011

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====================================================== Smt. Shakuntala Devi W/O Radhey Shyam Churiwala R/O Mohalla - Sujaganj, Jai Ram Marwari Lane, P.O. Head Office, P.S. Kotwali, District - Bhagalpur .... .... Petitioner/s Versus Sajjan Kumar Bajoria S/O Late Rameshwar Lal Bajoria R/O Mahabir Rrasad Dwebadi Raod, P.O. Bhagalpur, P.S. Kotwali, District - Bhagalpur .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Bimlendu Mishra, Advocate For the Respondent/s : Mr. Dhruv Narayan, Sr. Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 07. 11-03-2013 This Civil Revision application under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the „Act‟) is directed against the judgment and order dated 12.09.2011 passed in Title Eviction Suit No. 18 of 2005 by learned Munsif-II, Bhagalpur whereby the suit has been decreed with a direction to the defendant to deliver the vacant possession of the suit premises to the plaintiff within 60 days of the judgment and order. The defendant is before this Court in Revision.

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I shall be referring to the party position as it existed before the trial court for the sake of convenience. The suit property is a shop measuring 18 feet x 9 feet bearing Municipal Holding No. 54

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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(old), 68(new) under Ward No. 8 (old) and 15(new) situated at Mahabir Prasad Dwivedi Road in the town and district of Bhagalpur. The suit in question was filed by the plaintiff for eviction. The tenancy is not disputed and the defendant has been in occupation of the shop in question since February, 1983. It is the case of the plaintiff that his son Prahlad Kumar Bajoria after passing his B.Com. examination in the year 2002 is sitting unemployed and hence he required the suit premises to establish and set up a business for his son. The plaintiff claimed personal necessity as his requirement was bona fide, reasonable and in good faith for establishing his son. It is further the case of the plaintiff that the defendant had paid rent only up to February, 2003 and whereafter no rent has been paid and the defendant is a defaulter in this respect. It is further the case of the plaintiff that his requirement would not be satisfied by partial eviction of the tenant and that he requires the entire suit premises. It is stated that the plaintiff approached the defendant several times with request to vacate the premises of which the last request was made on 04.10.2005 but as the defendant flatly refused, hence the suit in question was the only remedy available for the plaintiff.

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The defendant who is running a homeopathic pharmacy shop in the suit premises by the name of M/s. Shiv Shankar

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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Homeo Pharmacy appeared before the trial court and sought leave to contest by filing an affidavit which was also treated as written statement on her behalf. As stated the tenancy is admitted by the defendant who also admits payment of rent up to February, 2003. It is stated that in March, 2003 the plaintiff adopted violent and aggressive attitude and tried to demolish the tenanted premises for dispossessing the defendant but the situation was saved by intervention of the local people. It is also the case of the defendant that for causing loss and harassment to the defendant, the plaintiff made holes in the roof and began to fill water damaging the medicines. It is stated that that the matter was reported to the Senior Superintendent of Police and peace was restored for sometime but as the harassment continued hence the defendant filed a suit bearing Title Suit No. 28 of 2003 seeking mandatory injunction for restoration of the physical condition of the tenanted premises. It is further the case of the defendant that she is not a defaulter and that the rent is being paid through money order. It is also the complaint of the defendant that on the failure of the plaintiff to carry out repairs in the tenanted premises, the defendant approached the House Controller, Bhagalpur and who has directed the plaintiff to carry out the repairs vide order passed on 09.05.2005 and against which order the plaintiff has filed an

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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appeal. It is also the case of the defendant that she alongwith her family is running the homeopathy medicine shop which is the only source of income and that she does not have sufficient fund to shift her business elsewhere. It is stated that the plaintiff has constructed a market complex in the year, 2003 in which there are more than 55 shops. It is stated that one shop by the name of M/s. G.R. Pharma is being run by the plaintiff or his son and thus the claim of personal necessity based on unemployment of the son Prahlad Kumar Bajoria is not correct. It is stated that the plaintiff is a big landlord and the alleged bona fide requirement is only a pretext to evict the defendant without their actually being any necessity for the same.

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On the basis of the rival pleadings the issues were framed of which the Issue No. 2 relating to the availability of cause of action to the plaintiff, Issue No. 3 relatable to the bona fide requirement of the plaintiff and Issue No. 4 relatable to partial eviction are the main issues requiring a consideration.

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Mr. Bimlendu Mishra has appeared for the defendant who is the petitioner before this Court. It is submitted on behalf of the defendant that the plaintiff had no cause of action for maintaining the suit inasmuch as the son having passed his graduation in the year 2002, he could have very well been

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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established in the market complex constructed by the plaintiff in the year 2003 having 55 shops. It was thus submitted that the plea of bona fide requirement is a fallacy because if the need was genuine, the plaintiff would have settled his son in one of the 55 shops available in the new complex. It is stated that the very fact that the defendant has zeroed down to the shop of the defendant is sufficient indication of the hidden agenda of the plaintiff. With reference to the evidence of the plaintiff who has deposed as P.W. 5, it is stated that whereas the plaintiff in paragraph-4 to 7 of his deposition has stated about the unemployment of his son and that the suit property was the most suitable for his son and that a partial eviction of the defendant would not satisfy his requirement but the statement made in paragraph-8 of his cross-examination where the plaintiff has stated that he will not settle his son in any other shop, by itself demonstrates that the suit is a mere pretext to evict the defendant and not a consequence of bona fide requirement. With reference to the deposition of the reported unemployed son of the plaintiff, namely, Prahlad Kumar Bajoria who has deposed as Plaintiff Witness No. 6, it is stated that the son has admitted to the construction of the new complex and has failed to justify his choice for the shop in question which is an old shop. With reference to the statement made by P.W. 2, namely,

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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Prakash Kumar Dokania, a shop keeper, it is submitted that the said witness has admitted to existence of 20 to 25 shops in the market complex.

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Mr. Mishra in the backdrop of the deposition of the son and a shop keeper of the area, submits that where the fact of construction of a market complex is admitted and it is also admitted that the complex which was constructed in the year 2003 i.e. after completion of graduation by the son of the plaintiff in the year 2002, consisted of not less than 20 to 25 shops and the plaintiff had all the shops at his disposal for establishing his son, he waited for three years thereafter to institute the suit in question raising a plea of personal necessity and bona fide requirement for the shop in question which is admittedly an old shop and no specific reason has been assigned for preferring this particular shop. It is stated that on the contrary the statement of the plaintiff made in paragraph-8 of his deposition during the course of cross-examination that his son would remain unemployed until the shop in question is vacant, itself demonstrates that the requirement is not bona fide rather is a pretext for eviction. Mr. Mishra has relied upon a judgment of this Court reported in 1999(3) PLJR 611 (Tushar Basini Saha & ors. vs. Jai Prakash Chourasia & ors.) , more particularly paragraph-8 of the judgment

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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to submit that whether a need is reasonable or bona fide has to be judged from objective point of view and not merely by assertion or denial of the parties. It is contended that reasonableness of requirement has to be considered with caution and care in the totality of circumstances. This Court in the judgment relied upon, had taken note of the circumstance that during the pendency of the suit four new shops had been constructed and had been occupied by the plaintiff and had held that the plea of bona fide requirement in these circumstances, for settlement of the grandson was unreasonable and unjustified. Learned counsel referring to a judgment of the Supreme Court rendered in the case of Dinesh Kumar vs. Yusuf Ali reported in AIR 2010 SC 2679 , more particularly to the opinion expressed in paragraph-25 has stated that the Supreme Court has held that if the High Court comes to a conclusion that the evidence recorded by the court below are perverse, based on no evidence or based on irrelevant material, it is permissible for the Court to appreciate evidence. The Court held that although the landlord is the best judge of his need but the same has to be genuine and not a pretext to evict the tenant for increasing rent. With reference to the conclusion drawn by the trial court in paragraph-13 of the impugned judgment on the aspect of bona fide requirement, it is

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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submitted that the court below has erred in recording such finding despite availability of evidence about construction of market complex after completion of graduation by the son of the plaintiff and the evidence of availability of more than 25 shops at that stage. It is submitted that the trial court has erred in accepting the bona fide requirement of the son of the plaintiff for the shop in question which is an old shop even in absence of any reasons for the preference. It is stated that the learned court below even while taking note of the defiant stand of the plaintiff that his son would remain unemployed until the suit shop is vacated, has yet accepted the plea of bona fide requirement. Mr. Mishra thus concluding his argument has submitted that in absence of cogent evidence supporting the plea of bona fide requirement for the particular shop, the judgment and order under challenge is perverse and that a mere whim and fancy of the landlord cannot be a subject matter of personal necessity.

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The arguments of Mr. Mishra has been contested by Mr. Dhruv Narayan learned Senior Counsel appearing for the plaintiff who submits that the findings are based on evidence led by the parties and does not require interference. It is stated that the defendant has failed to demonstrate perversity in the order impugned. It is stated that the defendant had earlier moved this

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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Court through C.R. No. 749 of 2010 which was disposed of by order passed on 09.12.2010 requiring the court below to determine the issue of personal necessity and partial eviction. It is stated that although the defendant is in tenancy since 1983, no dispute arose until 2003 when the plaintiff requested the defendant to vacate the premises for establishing his son. It is stated that although the market complex was constructed in the year 2003 no request had been made by the defendant to accommodate him in the complex even when he was being orally requested to vacate the suit premises. It is stated that the defendant cannot feign ignorance about the bona fide requirement of the plaintiff for the suit premises because it is as a consequence of the request that a suit for injunction had been filed by the defendant bearing Title Suit No. 28 of 2003 in which injunction was refused and the appeal dismissed. It is stated that the defendant instead of accepting the request of the plaintiff moved the House Controller for obstructing the eviction. It is submitted that by now it is well settled that the choice of a premise is entirely upon the landlord and he cannot be forced to choose a particular premise. It is stated that the availability options are to be seen and considered, as existing on the date of filing of a suit and not either prior or subsequent thereto.

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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Mr. Narayan submitted that the defendant at no place could establish that there were vacant shops available for settlement of the son of the plaintiff on the date of filing of the suit. In support of his submission that the choice of the premise entirely vests in a landlord, learned counsel has referred to a judgment of the Supreme Court rendered in the case of Savitri Sahai vs. Sachidanand Prasad reported in (2003) 1 SCC 170 . It is stated that the Supreme Court in paragraph-9 of the judgment has held that the preference lies with the landlord and that the landlord cannot be forced to occupy other premises which may become available. With reference to a judgment of the Supreme Court rendered in the case of Vidhyadhar vs. Manikrao & Anr. (1999) 3 SCC 573 , more particularly to paragraph 17 it is stated that as the defendant abstained from being examined or cross-examined on the stand taken by her in the affidavit it would draw adverse inference against her. It is stated that in the present case the defendant though filed her written statement but she neither got herself examined nor offered herself for being cross-examined and which is a relevant factor going against the defendant. It is stated that the scope of bona fide requirement has been explained in the judgments of the Supreme Court reported in (1995) 1 SCC 170 ( Raj Kumar Khaitan & ors. vs. Bibi Zubaida Khatoon & ors.)

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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and in the case of Md. Ayub & Anr. vs. Mukesh Chand reported in (2012) 2 SCC 155 . With reference to the opinion recorded in paragraph-14 to 19 it was submitted that requirement of a landlord is not that of a dire necessity nor is he required to elaborate upon nature of business. It is for the landlord to decide which business he wants to do and the Courts cannot act as an advisor. It is stated that an issue of comparative hardship though may be a relevant factor in cases of such adjudication but it cannot be swayed by sympathy or sentiment.

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Mr. Narayan thus submitted that neither is the landlord bound by choice of premises nor he is bound by his statement as to the nature of business rather the Court is merely to ensure that the plea of necessity and requirement are bona fide. It was submitted that the learned court below having examined the rival contentions threadbare, the judgment impugned does not warrant interference.

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I have heard learned counsel for the parties and have perused the materials available on record. This is a revision under Section 14(8) of the Act. The scope of exercise of revisional jurisdiction by the High Court in such matters is though wider than the jurisdiction conferred under Section 115 of the Code but it cannot be stretched so much as to sit in appeal over the findings

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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of fact recorded by the trial court. The High Court while exercising a Revisional jurisdiction under the Act is merely to ensure that the procedure enshrined under Section 14 of the Act has been followed and that the findings recorded by the trial court is supported by the evidence on record and not de hors thereof. In other words until such time that the aggrieved party is able to demonstrate the perversity in the findings or infraction of the procedure provided under Section 14 of the Act, the findings recorded by the trial court would not require any interference. Insofar as the case in hand is concerned there is no dispute as regarding the landlord-tenant relationship which is admittedly continuing since February, 1983. It is also an admitted position that as until 2003 there was no dispute between the parties. The completion of the graduation by the son of the plaintiff in the year 2002 and the construction of a marketing complex in the year 2003 housing 25 shops or more again is not in contest. That being the position the plea of personal necessity and bona fide requirement of the plaintiff requires to be tested against such admitted circumstances.

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Mr. Dhruv Narayan is very correct when he submits that it is entirely choice of the landlord to prefer any particular shop and that availability of other shops would not take away the right of

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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the landlord of exercising preference. Mr. Narayan is again very correct when he submits that the landlord is not required to divulge the nature of business and he is free to set up any business as he likes and that as his son was sitting unemployed, hence there cannot be a better proof of bona fide requirement of the shop in question for settlement of the unemployed son. The only aspect which warrants consideration is whether the plea of personal necessity is genuine and whether the plaintiff bona fidely requires the suit premises. The failure on the part of the defendant to examine herself as a witness in support of her claims definitely would draw adverse inference against her but the question remains whether the non-examination of the defendant would enure to the benefit of the plaintiff and whether he can succeed on the basis of the foundations laid by him. The judgment rendered in the case of Raj Kumar Khaitain (supra) and Md. Ayub (supra) elaborately discuss the issue of bona fide requirement of a landlord as also the issue of comparative hardship but the fact remains that even if the entire pleadings of the plaintiff is accepted on the face value whether the statement in the plaint and the deposition made by the plaintiff support his claim of bona fide requirement. This Court is in agreement with the submission of learned counsel appearing for the plaintiff that a

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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mere construction of the marketing complex housing several shops would not give premium to the defendant to contest the claim of the plaintiff nor would it dilute his claim but then the fact remains that the plaintiff needs to offer some reason as to why he prefers this particular shop despite being the owner of the marketing complex. It is rather surprising that neither in the plaint nor in the deposition the plaintiff has given any reason for his preference of the shop in question. In the judgment rendered in the case of Savitri Sahai (supra), the Supreme Court even while recognizing the right of the landlord to choose one of the several premises, has taken note of the reasons assigned by the landlord for a particular preference. In the present case the sole ground for the bona fide requirement is the settlement of the son. There is nothing in the deposition or the plaint to support the preference of the plaintiff for the suit shop. On the contrary the arrogance of the landlord is reflected from his deposition recorded at paragraph-8 of his crossexamination when he states that his son would remain unemployed until the shop is vacated. Paragraph-5 and paragraph8 of the statement of the plaintiff recorded during the course of his cross-examination is the crucial evidence in the present context and which is reproduced hereinbelow:

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“5. ekdsZV dkEIysDl lu 2003 esa cuuk “kq:

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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gqvkA mlesa dbZ nqdkus cuh ftlesa eSaus fdjk,nkj j[kkA esjk yM+dk izgykn oktksfj;k lu 2002 esa ch- dkWe ikl fd;k rFkk mlh le; ls og csjkstxkj gSA-------------------”

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“8. lu 2002 ls vc rd izgykn dqekj oktksjh;k ds O;olk; gsrq vU; fdlh ifjlj dk p;u ugha fd;kA tc rd fookfnr nqdku [kkyh ugha gksxh rc rd izgykn cktksfj;k csdkj gh cSBk jgsxkA fookfnr nqdku ds vykok esjs csVs ds O;olk; gsrq vU; dksbZ mi;qDr txg ugha gSA tc rd fookfnr nqdku [kkyh ugha gksxh izgykn ctksfj;k O;olk; “kq: ugha dj ldsxkA”

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The two statements of the plaintiffs as reproduced hereinabove is eloquent of the fact that although the market complex was constructed in the year 2003 i.e. after completion of the graduation by the son of the plaintiff, despite shops available at the ground floor and first floor of the complex, the son was not settled in any one of the shops available in the complex nor any reason had been stated why he was not settled in one of such shops and why the present shop is the most suitable for the son except that the plaintiff‟s son would remain idle until the defendant is evicted from the suit premises. The words “reasonably and in good faith” occurring in Section 11(1) (C ) of the Act are rather crucial and even when read with Explanation II, while reserving a right in the landlord to choose one of the many premises held by him, the

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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preference exercised by the landlord should be discernible from his pleadings and his dispositions. The preference exercised by a landlord for a particular premises based upon the plea of personal necessity and bona fide requirement cannot be upon mere asking and in absence of a reason, howsoever diminutive it may be, unless the preference finds support therefrom, should not be mechanically allowed.

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In the circumstances set forth herinabove, this Court is under no confusion that the plea of bona fide requirement is not as bona fide as being projected by the plaintiff rather is a ploy to seek eviction of the defendant. The trial court having noticed the statement of the landlord that his son would remain idle until the shop is vacated, yet has recorded a finding in his favour despite no evidence oral or documentary to show the preference for the suit shop and even in absence of any reasons assigned supporting the preference. The findings is based on no evidence rather the evidence is to the contrary. Even if the landlord has a right to choose one of the shop available at his disposal his bona fides has to be reflected from the statement made in the plaint or from his statement recorded during his examination. In the present case the statement of the plaintiff in preference of the shop reflects arrogance, obstinacy and the might of the landlord who is prepared

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Patna High Court C.R. No.226 of 2011 (7) dt.11-03-2013

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to keep his son in idleness until eviction of the defendant. This definitely is not the legislative intent of the words “reasonably and in good faith” occurring in Section 11(1) (c) nor when it affords an option to the landlord to make an option under Explanation II of the said provisions.

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For the reasons aforesaid, the findings of the court below on the issue of personal necessity and bona fide requirement cannot be upheld. In consequence this Civil Revision application is allowed. The judgment and order dated 12.09.2011 passed in Title Eviction Suit No. 18 of 2005 is set aside. There, however, shall be no order as to cost.

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Let the Lower Court Records be returned to the court concerned, in a sealed over, forthwith.

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(Jyoti Saran, J)

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S.Sb/AFR.

Smt. Shakuntala Devi v. Sajjan Kumar Bajoria

Case brief

What is this about?

What did the court decide?

Smt. Shakuntala Devi v. Sajjan Kumar Bajoria

Case brief

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