Dismissed

Sanjay Kumar Singh @ Sanjay Pr v. Sanjay Kumar Gupta

Patna HC21 Jul 2014SA/50/2012

Case brief

AI extract

What is this about?

This appeal against eviction and rent recovery decrees by lower courts was dismissed. The High Court upheld the finding that respondents were in default for non-inclusion payment of rent until the first week of the succeeding month and affirmed the respondent's bona fide personal necessity as his designated shop premises were allocated to a co-sharer in a partition suit, necessitating his use of t

What did the court decide?

Appeal filed against eviction and rent recovery decrees dismissed; eviction and recovery orders upheld.

Sanjay Kumar Singh @ Sanjay Pr Vs Sanjay Kumar Gupta — Partition | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.50 of 2012

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====================================================== 1. Sanjay Kumar Singh @ Sanjay Prasad Singh S/O Late Samrendra Singh Resident Of Mohalla- D.B. Road, Ward No. 4/5, P.O And P.S- Saharsa District- Saharsa 2. Summan Kumar Singh @ Suman Singh S/O Late Samrendra Singh Resident Of Mohalla- D.B. Road, Ward No. 4/5, P.O And P.S- Saharsa District- Saharsa 3. Smt. Indu Singh D/O Late Samrendra Singh Resident Of Mohalla- D.B. Road, Ward No. 4/5, P.O And P.S- Saharsa District- Saharsa 4. Smt Mina Devi @ Mina Devi D/O Late Samrendra Singh Resident Of Mohalla- D.B. Road, Ward No. 4/5, P.O And P.S- Saharsa District- Saharsa .... .... Appellants/Appellant/Defendants. Versus

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Sanjay Kumar Gupta S/O Ajay Kumar Gupta Resident Of Mohalla- D.B. Road, P.O And P.S- Saharsa, District- Saharsa.

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.... .... Respondent/Respondent/Plaintiff ====================================================== Appearance : For the Appellant/s : Mr. Kumar Uday Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 13 21-07-2014 Defendants of the suit have filed the appeal aggrieved by and dissatisfied with the judgment dated 17.11.2011 passed by 1^st Additional District Judge, Saharsa in T.A. no. 22 of 1999 confirming the judgment and decree dated 17-08-1999 and 2708-1999 respectively passed in Title Suit No. 33 of 1995 by Additional Munsif, Saharsa.

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For the sake of convenience this Court would refer the parties by their status at the trial.

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The plaintiff filed the suit seeking eviction of the

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Patna High Court SA No.50 of 2012 (13) dt.21-07-2014

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defendants from the suit premises being the shop as also for recovery of rent in the sum of Rs. 4620/-. The plaintiff asserted that the suit premises on being allotted to his share in Partition Suit No. 40 of 1985 the defendant took the suit premises on rent under an oral agreement to pay the rent of the month in the 1^st week of the succeeding month. The defendants defaulted in payment of rent from January, 1995 and became a defaulter. The plaintiff further claimed that he was in personal need of suit premises for expansion of his business as the medical shop run by him in a passage was allotted to another co-sharer and he was under request to vacate the same. The plaintiff sent a notice and on refusal by the defendants to vacate the suit premises the suit was filed.

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The original defendant filed the W.S. and contested. It was stated, inter alia, that he was inducted as defendant by Bhushan Gupta ancestor of the plaintiff and the suit premises was never allotted in the share of the plaintiff. The decree passed in T.S. No. 40 of 1985 is forged and fabricated. It was further stated that the defendanst paid the rent regularly inasmuch as there was no such agreement by the parties for enhancement of rent. The defendants as usual went to pay the rent of January, 1995 which was refused and the rent was thereafter remitted through money

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order which was again refused. The personal necessity shown by the plaintiff was also disputed. By way of amendment in W.S., it was pleaded that an advance of 10,000/- was received by Ajay Kumar Gupta father of the plaintiff which was agreed to be adjusted in the rent. The defendant always pressed for adjustment of rent against advance which was evaded.

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Considering the pleadings of the parties the trial Court framed diverse issues and appreciating the evidence on record held that the defendants had not denied the status of being tenant of the plaintiff. The defendants was found defaulter in making payment of the rent and the plaintiff was entitled for decree of eviction on this ground. However, plaintiff was not found liable to recover the rent @ 770 per month as claimed but entitle to recover rent @ 735/-. With regard to the contention of the defendants through the additional W.S. that a sum of Rs. 10,000/was advanced and it was agreed between the parties that the defendants will not pay the rent until the same is adjusted. It was found that such advance was already adjusted in the year 1990 as was evident from various Exhibits. Dealing with the personal necessity the learned trial Court negated the case of the defendants wherein such personal necessity was denied on account of availability of another shop. The trial Court found that there was

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no denial by the defendants that the plaintiff was engaged in doing business of medicine in the shop under the staircase and, therefore, the plaintiff was found in bonafide need of the suit premises. Having held so, the suit was decreed on both counts. Aggrieved by the judgment and decree authored by the learned trial judge the defendants filed appeal. The learned lower appellate Court, considering the pleadings of the parties and submissions made by the appellants, formulated following three points for consideration and adjudication :-

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“ (i) Is the defendant/appellant defaulter in payment of rent. (ii) Has the plaintiff/respondent bonafide personal necessity for the suit premises. (iii) Whether the partial eviction would fulfill the requirement of the plaintiff/respondent.”

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The learned lower appellate Court on re-appraisal the evidence adduced by the parties on point no.(i) concluded that the defendants had become defaulter by not paying rent of January and February, 1995 by first week of March, 1995. The admission of the defendants in oral evidence was that rent of the suit premises was required to be paid by the first week of the succeeding month.

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In so far as point nos. (ii) and (iii), the learned lower

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appellate Court considered the pleadings of the parties and the relevant evidence adduced in support thereof and found that the shop run by the plaintiff was located under the staircase and was not suitable for the business. The personal need of the plaintiff was bonafide and reasonable. Those points formulated by the learned lower appellate Court were also decided in favour of the plaintiff. Accordingly, the appeal was dismissed and the findings recorded by the learned trial Court on the core issues were upheld/confirmed.

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Heard Mr. Kumar Uday Singh learned counsel in support of the appeal.

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It has been submitted that the learned Court below completely erred in holding that rent for each month was to be paid by the first week of the next month stands admitted by the defendants. The findings recorded on this point is, therefore, perverse. In absence of any written agreement between the parties, the defendants could not have been found to be defaulter in payment of rent on the ground that the rent for January, 1995 and February, 1995 were paid on 16^th March, 1995. The concurrent findings on the personal necessity of the plaintiff have also been criticized on the ground that nothing was adduced by the plaintiff by documentary evidence to demonstrate that

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he was running a medicine shop from before in a different premises and that he was required to vacate the same.

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I have considered the submissions and perused the judgment under appeal. The contention of the appellants on the findings on personal necessity of the plaintiff shall be adverted to by this Court. The learned trial Court considered the said aspect of the matter under issue No.(iv) when the trial Court found that it was the specific case of the plaintiff that he was carrying on medicine shop in a stair room which was passage which had fallen in the share of Pankaj Kumar Gupta in the partition suit and he was required to vacate it and hand over possession as per the decree passed in Partition Suit No. 40 of 1985. The defendants have merely stated that the decree in the aforesaid Partition Suit no. 40 of 1985 was forged and fabricated. No evidence, however, was adduced to demonstrate that the same was forged and fabricated. There was also no denial of the fact that the plaintiff was running a medicine shop under the staircase. Learned lower appellate Court, in the light of the submissions of the appellants/defendants, posed a specific point and answered the same in favour of the plaintiff recording its own reasons. Such concurrent findings on this issue/point have not been shown to be perverse by the appellants. Law is settled

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beyond cavil that the choice in such matter rests with the landlord. The findings on this point by the Courts below cannot be dubbed as perverse or wholly illogical on mere demonstrating that the landlord had other option. Both the Courts below have found that the shop in which the plaintiff was running the business had fallen in the share of one of his cosharer and he was required to vacate and shift to some other place for his business. The need of the plaintiff was, therefore, reasonable and bonafide as has been found by both the Courts below.

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Since I have not found any substance in the contention of the appellants in criticizing the said finding(s) of the Courts below the appeal is bound to fail. The submission(s) of the defendants with regard to the findings on the point of defaulter in payment of rent are, therefore, not required to be gone into.

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The appeal is found devoid of raising any

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substantial questions of law and merits to be dismissed.

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It is, accordingly, dismissed.

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(Kishore Kumar Mandal, J)

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Shyam/U

Sanjay Kumar Singh @ Sanjay Pr v. Sanjay Kumar Gupta

Case brief

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Sanjay Kumar Singh @ Sanjay Pr v. Sanjay Kumar Gupta

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