In this second appeal regarding eviction, the Patna High Court upheld the lower courts' finding that the plaintiff established personal necessity for running a medicine shop, dismissing the appellant's claim that alternative vacant shops existed.
The second appeal under Order IX Rule 13 of CPC and Section 100 of CPC was dismissed, upholding the eviction decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.191 of 2012
====================================================== Satrughan Prasad son of late Laxmi Narain Prasad, resident of behind Pani Tanki, Ward No. 22, Dehri-on-Sone, Post Office and Police Station Dehri, District Rohtas at Sasaram.
.... .... Appellant/s
Versus 1. Asha Gupta wife of Bhuneshwar Prasad daughter of late Lakhichand Gupta, resident of Mohalla Trigun Dehri, post office and Police Station Dehri, District Rohtas at Sasaram
.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Siddharth Harsh For the Respondents : Mr. Awadhesh Kumar Pandey
====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER
12 22-07-2014 The defendant(s) being substituted heirs of the original defendant has filed the appeal under Section 100 of the Code of Civil Procedure aggrieved by the judgment and decree dated 14.02.2012 and 24.02.2012 respectively passed by learned Additional District Judge-V, Rohtas at Sasaram in T.A. No. 14 of 2009 whereby the judgment and decree dated 21.1.2009 and 4.2.2009 respectively passed by learned Munsif-II, Sasaram in Eviction Suit No. 02 of 2005 was/were affirmed/confirmed.
For the sake of convenience, this Court would refer the
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parties by their status at the trial.
Plaintiff (respondent herein) filed the suit for eviction of the original defendant from the suit premises being shop contained in Schedule (ka) situated in Laxmi Market of the town belonging to the plaintiff on twin grounds of default in payment of rent as well as personal necessity. The plaintiff claimed that her son was a medical practitioner running a clinic in front of the suit premises and the husband of the plaintiff who had recently retired from service of a Government Company desired to open a medicine shop obviously to keep himself busy and enhance the family income. The original defendant had agreed by executing Sada Ekrarnama (Ext.1) to vacate the shop by 31.3.2005 but the same was not complied with. It was also stated that the tenant defaulted in payment of rent. On these assertions, the plaintiff sought eviction of the original defendant from the shop in question.
In the written statement, the defendant asserted inter alia that after death of original defendant, the shop fell in his share (defendant no. 2) and the payment of rent was tendered but refused whereafter the same was remitted by money orders which too was/were refused. The defendant disputed the personal necessity of the plaintiff on the ground that few suits relating to
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other shops in the market were pending in the Court and in some of which eviction orders were passed and the plaintiff had taken possession of those shops. The plaintiff had, therefore, vacant shops in her possession in the said market and as such, there was no bona fide requirement of the suit premises.
The learned Trial Court on appraisal of the evidence in the light of the case put up by the parties held that the case of default in payment of rent set up by the plaintiff was not proved. The plaintiff, however, had proved that she required the shop for her personal necessity and the suit was decreed. Dissatisfied with the judgment of the learned Trial Court, the defendant filed appeal. The learned Lower Appellate Court, on a consideration of the submissions made on behalf of the defendant, formulated relevant points. Point A so formulated by the learned Lower Appellate Court reads as under:
“(A)As to whether the Plaintiff/respondent has got the personal necessity of the suit premises reasonably and in good faith for doing the Medicine shop business by her husband?”
Marshalling the evidence on this point adduced by the rival parties, the learned Lower Appellate Court found that the plaintiff was able to establish even by the deposition of defendant no. 2 that son and daughter-in law of the plaintiff were doctors.
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The son had a clinic close to the shop in question. Accordingly, the Appeal Court concurred with the findings recorded on this point/issue by the learned Trial Court and held as under in paragraph 16:
“16. From the facts and the evidence adduced on behalf of both the sides as discussed above, I find that the plaintiff/respondent has got a very good case of personal necessity of the disputed premises for doing the Medical shop business by her husband and the same was rightly been held like such by the learned court below also. Accordingly I held that the plaintiff/respondent has got the personal necessity of the suit premises reasonably and in good faith for doing the Medical shop business by her husband and the appellants/defendants are liable to be evicted from the suit premises within the provisions of law laid down u/s 11(i)(c) of the Bihar Building(L. R and E) Control Act. This point-in-issue is thus decided against the appellants/defendants and in favour of the respondent/plaintiff.”
Consequently, the appeal was dismissed.
Heard learned counsel for the appellant and perused
the judgment under appeal.
It has been submitted on behalf of the appellant that the judgments of the Courts below are not sustainable in law as they failed to consider that the personal necessity was not bona fide and/or reasonable. The plaintiff had already few shops vacant in the market which could have been utilized for opening the medicine shop. The Counsel has in this regard relied on Section
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11(i)(c) of the Bihar Building (Lease, Rent and Eviction) Control Act. There was ample evidence on record to demonstrate that few shops in the market were unoccupied and as such, the personal need was not bona fide or reasonable.
This Court is unable to find much substance in such submission. The case of the plaintiff was that the suit premises was in the front of the shop where the son was running his clinic and therefore, most suitable. It is settled proposition of law that the suitability of the requirement is the choice of the landlord. The learned Lower Appellate Court has discussed this aspect of the matter specifically in the judgment under appeal and found the requirement of the plaintiff bona fide and reasonable. The said conclusion does not appear to be perverse being based on no evidence and/or wholly illogical/irrational.
Resultantly, the appeal is found devoid of raising any
substantial question of law passaging its way to dismissal.
It is accordingly dismissed.
(Kishore Kumar Mandal, J)
Pankaj/-
U
1 issue framed by the court
Whether the eviction decree below is sustainable considering the defendant's contention that the plaintiff possessed vacant shops in the market?
2 provisions across 2 enactments
Satrughan Prasad
Asha Gupta
Kishore Kumar Mandal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
