Dismissed

M/S Janta Hardware Stores Thru v. Smt.Savitri Devi and Anr.

Patna HC18 Mar 2013C.R./637/2009

Case brief

AI extract

What is this about?

This single judge order dismissed a civil revision challenging the decree in an eviction suit. The lower court upheld the plaintiff-landlord's bona fide necessity for a clinic. The High Court affirmed this finding, noting alternative premises were available, while directing future compliance with fair dealing if the property is sold or rented to third parties.

What did the court decide?

Civil Revision Application is dismissed; the impugned judgment and order of the Munsif setting aside the partial eviction stands affirmed.

M/S Janta Hardware Stores Thru Vs Smt.Savitri Devi and Anr. — Landlord and Tenant | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.637 of 2009 ====================================================== 1.M/S Janta Hardware Stores, through its Partners, Tekari Road, P.S.Kotwali, Town and District- Gaya. 2.Dayanand 3.Krishna Mohan (both sons of late Srichand Ram, residents of Tekari Road, P.S.- Kotwali, Town and District- Gaya. …….. Petitioners. Defendants.... .... Petitioners. Versus Smt.Savitri Devi Wife of Sri Shreenath Bhadani, Resident of MohallaKatari Hill Road, P.S.- Rampur, Town and District- Gaya. Plaintiff.... .... Opposite party. ====================================================== Appearance : For the Petitioner/s : Mr. Ram Suresh Roy, Sr. Advocate. For the Respondent/s : Mr. Chitragupta Prasad, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 8 18-03-2013 Heard Mr. Ram Suresh Roy, learned Senior counsel for the petitioners and Mr. Chitragupta Prasad, learned counsel for the opposite party.

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This civil revision application under Section 14(8) of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 is directed against the Judgment and order dated 30.01.2009 passed in Eviction Suit No.6 of 1997 whereby the learned Munsif- Ist, Gaya, while decreeing the suit in favour of the plaintiff-opposite party has been pleased to direct the defendant- petitioners to hand over the vacant possession of the suit premises to the plaintiffopposite party within 60 days from the date of the Judgment.

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The suit property is a shop admeasuring about 15’ x 40’. The petitioners are running a Hardware shop in the said premises.

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Patna High Court C.R. No.637 of 2009 (8) dt.18-03-2013

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The petitioners are in occupation of the suit premises since 1980. An Eviction Suit earlier was filed by the plaintiff- opposite party seeking eviction of the petitioners from the suit premises which at the relevant time measured about 30’x 40’ giving rise to the Eviction Suit No.37 of 1987. The suit was decreed in favour of the plaintiff and which decree was questioned before this Court in C.R. No.498 of 1989. A Bench of this Court after hearing the parties was pleased to dispose of the revision application vide Judgment and order dated 2.9.1992 with certain direction which finds mentioned in paragraph 4 of the application and according whereto the petitioners were allowed tenancy in the premises to the extent of 15’ width (East to West) and 40’ depth ( North to South), having a total area of 600 Sq.feet. The plaintiff - opposite party was directed to get a wall erected for clear demarcation of the tenancy.

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It is a case of the petitioners that although they were entitled to a premise admeasuring 15’ x 40’ but in fact the width of the shop was reduced by the decree holder while in course of the implementation of the order of this Court and as a consequence the petitioners got only 13 ½ frontage. As the order of this Court was not implemented in letter and spirit, the petitioners filed an Execution Case No.42 of 1992 and which remains pending

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Patna High Court C.R. No.637 of 2009 (8) dt.18-03-2013

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although a period of more than 20 years has passed. A plea was taken by the plaintiff in the earlier round of litigation that she required the premises for settlement of her eldest son. According to the petitioners, the plea was not bonafide and the plaintiffs had misled this court into believing that the plaintiff had personal necessity for the premise for settlement of her eldest son.It is contended that the plaintiff instead of setting her son in the evicted portion of the suit premises, let out the said portion to one M/s.Balajee Enterprises on rent.

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It is the case of the petitioners that even while the execution case was pending consideration, the eviction suit in question was filed by the plaintiff-opposite party giving rise to Eviction Suit No.90 of 1997, this time raising a plea of bonafide requirement for opening a clinic/ nursing home for her doctor son and daughter – in - law, namely, Dr. Ajay Kumar Bhadani and Dr. Punam Bhadani. The suit having been decreed in favour of the plaintiff and hence the present civil revision application.

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Mr. Ram Suresh Roy, learned Senior counsel appearing on behalf of the petitioners has submitted that the very conduct of the plaintiff demonstrates that there is no bonafide plea of personal necessity. It is submitted that the doctor son and daughter-in-law of the plaintiff are well settled in their nursing

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Patna High Court C.R. No.637 of 2009 (8) dt.18-03-2013

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home, namely, Jeewan Dhara Nursing Home, running at Katari Hill Road which is a known locality within the Gaya Township. It is submitted that the plea taken by the plaintiff of opening a nursing home or clinic for her son and daughter-in-law is only a pretext as the area in which the suit premises is located is hardly suitable for running a doctor’s clinic. It is further the case of the petitioners that where the conduct of the plaintiff is yet pending adjudication in the execution proceeding relatable to the earlier round of litigation, the present suit did not warrant interference by the court below until the plaintiff discharged herself of the obligation as set out in the execution proceeding. It is further the case of the petitioners that although in the earlier round of litigation a plea of settlement of the eldest son had been taken by the plaintiff but the suit premises was initially rented out to one Balaji Enterprises which had no concern with the eldest son and subsequently was sold out. It is, thus, submitted that the suit, in fact, is a malafide design of the plaintiff to seek eviction of the petitioners in order to let it out to a third person on a higher rent. It is also stated at the bar by Mr.Roy that the petitioners have information that the plaintiff intends to sell the suit premises and if that be so then the petitioners are willing purchasers.

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The argument of Mr.Roy has been contested by Mr.

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Patna High Court C.R. No.637 of 2009 (8) dt.18-03-2013

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Chitragupta Prasad and who by filing counter affidavit today has merely submitted that the submissions is a figment of imagination of the petitioners, inasmuch as there is no ground to doubt the bonafide of the plaintiff. With reference to the submissions made at paragraph 6 of the counter affidavit it is submitted that the suit premises is suitable for opening a clinic and that there are other doctors who are running similar clinic in the locality. It is further with reference to the statement made in paragraph 9 of the counter affidavit submitted that though the bifurcated area of the suit premises which was earlier rented out to the M/s. Balaji Enterprises has been sold out but the sale has been made in favour of the wives of petitioners no.2 and 3 as back as in the year 2006. Although a plea of fraudulent sale has been taken by the plaintiff in paragraph 9 but it is not dispute that no legal course was taken by the plaintiff in this regard.

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I have heard learned counsel for the parties and have perused the materials on record. It is by now well settled that a plaintiff who is a land lord and owner of the property alone can maintain a suit filed under section 11(1)( c ) of the Act on grounds of personal necessity and none else. In so far as the present case is concerned, certain aspects are not in dispute namely; that there was earlier round of dispute in which the petitioners were allowed

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Patna High Court C.R. No.637 of 2009 (8) dt.18-03-2013

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tenancy in the bifurcated portion of the suit premises and the remaining was rented out to Balajee Enterprises. It is again not in dispute that the portion from which the petitioners had been evicted and was rented to Balajee Enterprises was later sold in favour of the wives of petitioners no.2 and 3. It is also not in dispute that the son and daughter-in-law of the plaintiff are doctors and nothing has been placed on record to demonstrate that the plea of personal necessity is a malafide pretext and that the plaintiff cannot maintain a suit for personal necessity for opening a clinic for her son and daughter-in-law.

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Whether a plea of a bonafide requirement for the suit premise is in good faith or is a malafide pretext for seeking eviction, has to be determined against the evidence led by parties. The Judgment and order under challenge is well discussed and the court below has taken note of the contentions and has upheld the plea of personal necessity of the plaintiff and has also concluded that partial eviction would not satisfy the claim of the land lord.

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Mr. Roy even while canvassing the case of the defendants- petitioners had no answer to the situation regarding the balance portion of the suit premises which is adjacent to the suit shop, being purchased in the name of the wife of petitioner no.2 and 3 and thus alternative available at the hands of the

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Patna High Court C.R. No.637 of 2009 (8) dt.18-03-2013

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petitioners to continue their business. He however submits that such an alternative available to the petitioners cannot be an impediment to their claim. This submission is only taken to be rejected. The fact not being in dispute and law supporting the plea of personal necessity of the plaintiff, no legal infirmity or jurisdictional error can be found in the judgment and order under challenge.

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This application is, accordingly, dismissed.

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Before parting with the order, I would not hesitate to put on record that in case the plaintiff does not abide by her plea of personal necessity and decides to rent out the suit premise to a third person, other than her son and daughter-in-law or to sell of the suit premise then the provision of section 17 of the Act would come into play and the plaintiff would be under an obligation to first offer the same to the defendants petitioners before making an offer to third parties.

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(Jyoti Saran, J)

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AnilKrSinha/-

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M/S Janta Hardware Stores Thru v. Smt.Savitri Devi and Anr.

Case brief

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M/S Janta Hardware Stores Thru v. Smt.Savitri Devi and Anr.

Case brief

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