Jharkhand High Court
Ratan Lal vs Ratan Lal on 8 April, 2021
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[Civil Appellate Jurisdiction)
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S.A. No. No.28 of 2007
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(Against the judgment and decree dated 19.12.2006 and
03.01.2007, passed by the court of learned District
Judge, East Singhbhum at Jamshedpur, in Eviction
Appeal No.02 of 2006, reversing and setting aside the
judgment and decree dated 18.01.2006 and 24.01.2006,
passed by the court of learned Sub-Judge - V, East
Singhbhum at Jamshedpur in Eviction Suit No.53 of
1993)
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Smt. Kalindi Devi .... Appellant
Versus
1. Ratan Lal
2. Arjun Lal
3. Mahendra Lal
4(a).Mrs. Kanchan Kumari
4(b).Shivam Verma
4(c).Saubhagya Verma
5. Kishori Lal
6. Sharda Devi
7. Geeta Devi
8. Binda Devi
9. Meena Devi
10. Mamta Devi .... Respondents
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For the Appellant : Mr. V. Shivnath, Sr. Advocate
Mr. Niraj Kishore, Advocate
For the Respondents : Mr. Manjul Prasad, Sr. Advocate
Mr. Jitesh Kumar, Advocate
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PRESENT
HON'BLE MR. JUSTICE AMITAV K. GUPTA
(Through Video Conferencing)
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JUDGMENT
08th April, 2021
1. This second appeal is directed against the judgment
and decree dated 19.12.2006 and 03.01.2007,passed by
the learned District Judge, Jamshedpur, in Eviction Appeal
No.02 of 2006, reversing and setting aside the judgment
dated 18.01.2006 passed by the Sub-Judge -V, Jamshedpur,
in Eviction Suit No.53 of 1993 and directing the appellant/
defendant to hand over the vacant possession of the suit
premises to the respondent/ plaintiff.
2. The plaintiff/ landlord (respondent in the present
appeal) instituted Eviction Suit No.53 of 1993 under
Section 11(c) of the Bihar Building (Lease, Rent and
Eviction) Control Act, 1982 now Jharkhand Building
(Lease, Rent and Eviction) Control Act, 2000
(hereinafter to be referred to as 'The Act' for short) for
eviction of the defendant/ tenant (appellant herein) from
the suit premises as the plaintiff required the suit premises
to start a business for his son, namely Mahendra Lal, who
was sitting idle. The suit was decreed in favour of the
plaintiff whereafter the defendant/ tenant preferred Civil
Revision No.185 of 2000(R) before this High Court. The
learned Single Judge allowed the revision with the finding
that the need of the plaintiff/ landlord could be fulfilled and
satisfied by partial eviction from the suit premises. Being
aggrieved, both the parties challenged the order before the
Supreme Court in Civil Appeal Nos.917 of 2002 and 918 of
2002. The Hon'ble Supreme Court, on hearing the parties,
by order dated 01.02.2002, set aside the order of the High
Court and remitted the matter to the trial court for
deciding the question of partial eviction.
3. The trial court, on consideration and discussion of
the evidence adduced by the parties, recorded its finding
that the need and requirement of the plaintiff/ landlord
could be met and satisfied by allotting Schedule - C
portion of the suit premises to the plaintiffs/ landlord and
Schedule - A & B to the defendant/ tenant (the appellant)
and accordingly passed the judgment dated 18.01.2006.
Being aggrieved by the judgment of the trial court, the
plaintiffs/ landlord preferred Eviction Appeal No.02 of
2006 before the learned District Judge, Jamshedpur. The
first appellate court, while setting aside the judgment of
the trial court, held that the bonafide need and
requirement of the plaintiff/ landlord could only be
satisfied by handing over of the vacant possession of the
entire suit premises by the tenant and reversed the finding
of partial eviction.
Consequent thereto, the appellant/ tenant has
carried this second appeal before this Court impugning the
judgment of the first appellate court. This Court, by order
dated 23.07.2008, admitted the appeal for hearing on
formulation of the following substantial question of law;
(I) Whether the judgment and decree passed
by the court of appeal below can be sustained in
law while reversing the judgment of the trial
court, it has failed to meet all the reasonings for
passing decree for partial eviction ?
(II) Whether the court of appeal below has
erred in law in holding that the trial court's decree
for partial eviction will amount to thrusting the
court's choice upon the plaintiff/ landlord ?
4. The brief facts of the case is that the appellant/
defendant has been in occupation of Shop No.2, situated
on the eastern portion of holding No.151 of Sakchi Bazar,
measuring 20.1/2' x 6' ft. and the adjacent room measuring
7' x 9.1/2' ft situated on the southern side in the rear
portion of Schedule - A (as described in the plaint) and an
adjacent shop room measuring 19' x 7' ft., of Schedule - B
(as described in the plaint) situated on the southern
portion of Schedule - A shop room. The plaintiff/ landlord
purchased the suit property from the predecessor-in-title
who had inducted defendant No.1 as a tenant in the suit
premises. Consequent to the sale, the defendant became
the tenant of the plaintiffs. The plaintiffs used to realize
rent from her. It is pleaded that the plaintiffs/ landlord
requires the aforesaid suit premises, reasonably and in
good faith, for setting up jewellery business for his son
Mahendra Lal, who has been sitting idle. The suit premises
is suitable for the said business as it is located in Sakchi
market which is a hub of commercial activities. It has been
pleaded that the plaintiff repeatedly requested the
defendant to vacate the suit premises, but she did not
vacate the same. She refused to receive the legal notice,
whereupon the suit was instituted under Section 11(c) of
the Act.
5. The defendant/ tenant (appellant herein) in her
written statement refuted the plea of personal necessity
and asserted that the plaintiffs are already running a
jewellery shop in the said holding under the name and
style of "Dwarika Jewellery". She has stated that a shop
has been recently vacated, as such, the need and
requirement of Mahendra Lal (son of plaintiff No.01), can
be satisfied by occupation of the said vacant shop. She
asserted that the plaintiffs have other shops and the plea of
personal necessity of the plaintiffs is merely a pretence. It
was averred that Mahendra Lal is already engaged and
carrying on jewellery business at a place which is more
suitable than the suit premises and the need and
requirement of the suit premises for personal necessity by
the plaintiffs is whimsical and not genuine.
6. Mr. V. Shivnath, learned senior counsel for the
appellant/ tenant, while assailing the judgment of the first
appellate court, has strenuously argued that the Supreme
Court, after hearing the parties, remitted the case to the
trial court with the observation " ......... that the question
so far as the partial eviction is concerned, the same ought
to have been considered by the trial court and not the
revisional court ..........". It is contended that the Apex
Court has used the word 'consider' so far as the partial
eviction is concerned which demonstrates that the Apex
court was of the view that the partial eviction would satisfy
the need of the plaintiff-landlord. It is submitted that as per
the direction of the Apex Court, the trial court, on
evaluation and appreciation of the evidence on record,
recorded its satisfaction that the partial eviction would
meet the need and requirement of the plaintiff-landlord.
7. It is argued that the trial court has considered and
discussed the evidence and held that though there was no
pleading of partial eviction, however, on consideration of
the evidence adduced by the parties, it has recorded the
finding, by assigning cogent reasons, that the appellant/
tenant has been carrying on his business in the suit
premises for the past two decades and considering the
fact, that the plaintiffs have other shops in the locality,
therefore, the court arrived at the conclusion that partial
eviction would meet the need and satisfy the requirement
of the plaintiffs-landlord. Accordingly, the trial court
allotted Schedule - C property to the plaintiff for opening
of jewellery shop by providing a passage in Schedule - B of
the suit premises with access to Schedule - A of the
property.
8. It is submitted that the plaintiffs have raised the
grievance that Schedule - C property is situated in the
alley. It is urged that this aspect has been considered by
the trial court and it has been observed that there are
other shops situated in the alley. The trial court has taken
into account the fact that the appellant/ tenant has
established the goodwill and reputation of his shop. Thus,
considering the comparative hardship the tenant will face
on eviction from the suit premises, the court has arrived at
the finding that allotment of Schedule - C property in
favour of the plaintiff will satisfy the need and requirement
of the plaintiffs.
9. Learned senior counsel has emphatically argued that
the learned first appellate court has reversed the findings
of the trial court on the question of partial eviction without
appreciating the fact, that as per the direction of the
Supreme Court, the trial court has, on appreciation of
evidence, considered the question of partial eviction and
assigned cogent reasons for the same.
10. Learned senior counsel has canvassed that the
Supreme Court, in Madhukar & Ors. Vs. Sangram and
Ors.; (2001) 4 SCC 756, has propounded that duty and
obligation is cast on the first appellate court to come into
close quarters with the reasoning and finding of the trial
court and assign cogent reasons for disagreeing with the
findings of the trial court.
It is submitted that in the instant case it is evident
that the first appellate court, while reversing the findings
of partial eviction, has not assigned any reason for
disagreeing with the findings of the trial court, as such the
substantial question of law leans in favour of the appellant,
and therefore, the judgment of the first appellate court is
fit to be set aside and the case requires to be remanded to
the first appellate court for deciding the question afresh on
the question of partial eviction, by assigning proper
reasons.
11. At the very outset it appears that the argument
advanced by the learned senior counsel that usage of the
word 'consider' by the Apex Court is demonstrative of the
fact that the Supreme Court was of the view that the
partial eviction would meet the need and requirement of
the plaintiff/ landlord, is palpably fallacious and
misconceived.
This Court is in agreement with the contention of Mr.
Manjul Prasad, learned senior counsel, appearing on behalf
of the respondents/ landlord, that the Supreme Court in
Chairman, LIC of India Vs. A Masilamani; (2013) (1)
JCR 188 (SC), has held that usage of the word and term
'consider' postulates consideration of all relevant aspects
of a matter by application of judicial mind with reference
to the materials available on record and the word
'consider' does not, by any stretch of imagination, mean
final determination of the issue. In this context, it is
pertinent to note that the Supreme Court while remitting
the matter has observed " ......... that the question so far
as the partial eviction is concerned, the same ought to
have been considered by the trial court and not the
revisional court ..........". On plain reading of the words and
language and the direction given by the Hon'ble Supreme
Court, it is abundantly clear that the Apex Court was of the
view that revisional court should not have gone into the
question of partial eviction as the question of partial
eviction was to be considered and adjudicated by the trial
court. Thus, the argument advanced by the learned senior
counsel for the appellants stands rejected.
12. Mr. Manjul Prasad, learned senior counsel, appearing
on behalf of the respondent/ landlord has argued that the
plaintiffs had pleaded that they required the suit premises
for Mahendra Lal (son of plaintiff No.01) who was sitting
idle and since the family members of the plaintiffs are
engaged in business of jewellery accordingly, they wanted
the suit premises for starting a jewellery shop for him. It is
submitted that the trial court has held that though there
was no pleading of partial eviction, but it has, on surmises
and conjectures, recorded the finding of partial eviction
and concluded that allotment of Schedule - C portion of the
suit premises would satisfy the need and requirement of
the plaintiff/ landlord. It is argued that the first appellate
court on consideration and discussion of the evidence and
after assigning cogent reasons, has disagreed with the
findings of the trial court and reversed the finding of the
trial court on the question of partial eviction.
Learned senior counsel has submitted that the
Supreme Court, in Sugani Vs. Rameshwar Das & Anr.;
AIR 2006 SC 2172, has held that the points of facts which
have not been raised in the trial court or the first appellate
court, cannot be raised in the second appeal and the
question of law, as formulated, do not involve any
substantial question of law hence the instant appeal
deserves to be dismissed.
13. Heard. In the backdrop of the rival submissions, the
moot question which requires determination by this Court
is (i) whether the judgment of the first appellate court is
founded on sound reasonings for reversing the findings of
the trial court; (ii) whether the question of law formulated
in the present appeal involves any substantial question of
law ?
14. It is not disputed that both the courts below on the
basis of the evidence on record have held that the
plaintiffs/ respondents have established that their
requirement of the suit premises for starting a jewellery
business is reasonable and bona fide.
15. On perusal of the trial courts' judgment, it is noticed
that the trial court, on the basis of evidence found that the
suit premises comprising of Schedule - A, B and C is in a
zig zag form measuring 322.5 sq. feet. In paras - 6, 7 and
10, the trial court has held that there is no specific
pleading or evidence as to what area of Schedule - A, B
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and C of the suit premises is required by the plaintiff/
landlord. After recording the above findings the trial court,
in para - 7, has decided the question of partial eviction
stating that the plaintiffs have not disputed the fact that
they are not satisfied with the existing jewellery business,
being carried on by them, adjacent to the shops in
Schedule - A, B & C.
While assigning such reasoning, the trial court has failed to
appreciate that the question of partial eviction has to be
based on the basis of the material evidence and in
accordance with the provisions of Section 11(c) of the Act.
In this context it is relevant to take note that the trial
court, in para - 10, has discussed the settled legal position
that it is the landlord's choice to choose which portion of
the suit premises would satisfy his need and requirement,
but it has not applied the proposition of law and allotted
the western portion of the suit premises, i.e., Schedule - C,
opening in the alley situated in a residential area and
where there is negligible business activity, observing that
Schedule - C would meet the need and requirement of the
plaintiff/ landlord as the plaintiffs did not raise any
grievance that they were not satisfied with their existing
business. Such finding and reasoning of the trial court was
uncalled for and in the teeth of the settled proposition.
16. It further appears that the trial court has stated that
since the defendant/ tenant has been carrying on the
business for past twenty (20) years in the suit premises,
therefore he is likely to suffer more as compared to the
landlord and has accordingly decided the question of
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partial eviction and allotted the shop situated in the rear
portion of the suit premises despite taking note of the
settled legal proposition that it is for the plaintiff/ landlord
to choose as to which shop belonging to him was more
suitable for him for starting his business. It is evident that
the trial courts' reasoning on the question of partial
eviction is neither here nor there and is self-contradictory
and not sustainable in law or on facts.
17. At this stage, it is imperative to reiterate that
Explanation - II of Section 11 of the Act, contemplates
and provides for giving preference to the landlord to
choose as to which of the premises let out by him will
satisfy the reasonable need and requirement of the
landlord and tenant or tenants shall not be allowed to
question such preference of the landlord.
18. In this connection it is pertinent to state that the
Jharkhand Building (Lease, Rent and Eviction)
Control Act, does not provide or contain any specific
provisions postulating or contemplating for assessing and
measuring the comparative hardship, advantages and
disadvantages to the parties.
The Hon'ble Supreme Court in Budhwanti v. Gulab
Chand Prasad; (1987) 2 SCC 153 has held that the
application of the test of comparative hardship between
the landlord and the tenant was an extraneous test as no
such provision has been prescribed or postulated under the
Act for going into it's reckoning.
19. in Mst. Bega Begum and Ors. v. Abdul Ahad
Khan (dead) by L.Rs. And Ors.; (1979) 1 SCC 273 the
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question for assessing relative advantage and
disadvantages to both the parties was considered, because
Explanation to Section 11(i)(h) of Jammu and Kashmir
Houses and Shop Rent Control Act, 1966, provided for and
contemplated for assessment of relative advantages and
disadvantages to the parties. It was observed by the Apex
Court that it is no doubt true that the tenant will have to be
ousted from the house if a decree of eviction is passed but
such an event will take place whenever a decree of eviction
is passed and merely because the tenant will have to be
ousted from the house where he was running his activity
cannot, by itself, be considered a hardship and be a valid
ground for refusing the landlord a decree for eviction. This
decision leans in favour of the plaintiffs/ landlord especially
when reasonable and bona fide requirement is made out by
the landlord. In the given facts and circumstances the onus
shifts on the tenant to establish the comparative hardship
and disadvantages for denying the decree of eviction to the
landlord. The tenant cannot insist on getting an alternative
accommodation of similar nature in the same locality
because that will be asking for the impossible.
20. The Hon'ble Apex Court in the case of Bentool Steel
Products (P) Ltd. v. O.M.A. Mohammed Omar; (2008)
17 SCC 679 while referring to the case of Bega Begum
v. Abdul Ahad Khan; (1979) 1 SCC 273 has held that
merely because the tenant will have to be ousted from the
tenancy premises on account of a decree for eviction being
passed is irrelevant to be considered as a hardship because
asking by the tenant for availability of premises similarly
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situated in all respects, the same as the tenancy premises
would be asking for almost an impossible and if that factor
is to be taken into consideration as a relevant factor, then a
decree for eviction would not be liable to be passed in any
case at all.
21. The Apex Court in the case of Akhileshwar Kumar
v. Mustaqim; (2003) 1 SCC 462 has held that once it has
been proved by a landlord that the suit premises
accommodation is required bona fide by him and such
satisfaction withstands the test of objective assessment by
the court of facts then choosing of the accommodation
which would be reasonable to satisfy such requirement has
to be left to the subjective choice of the needy. The court
cannot thrust its own choice upon the needy. Of course, the
choice has to be exercised reasonably and not whimsically.
22. It is pertinent to state that comparative hardship is a
question of fact, to be decided on the basis of the evidence
on record. The judge of facts should place himself in the
armchair of the landlord and put a question to himself --
whether in the given facts established by the landlord the
need to occupy the premises can be said to be natural,
real, sincere, honest and if the answer is in the positive
then the need is bona fide. Once the court records its
satisfaction of the reasonable and bona fide requirement of
the premises or additional premises then in the matter of
choosing out of one accommodation available to the
landlord, his subjective choice is to be respected by the
court by permitting the landlord to choose the
accommodation which the landlord feels would be most
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suited for the purpose. The court would not, in such a case,
thrust its own wisdom upon the choice of the landlord by
observing that not one but the other accommodation must
be accepted by the landlord to satisfy his such need. The
need or genuine requirement needs a practical approach
instructed by the evidence on record. An approach either
too liberal or too conservative or pedantic must be guarded
against.
The Court, in the first instance, is therefore required
to determine the extent of the premises which the landlord
reasonably requires and determine it objectively and not
on the basis of his ipse dixit or mere desire to occupy as
much as he wants. In fact, the Court has to apply a test as
to whether such requirement, as the Court considers
reasonable, will substantially satisfy (not fully satisfied) by
ordering partial eviction.
23. Now adverting to the argument advanced by the
learned senior counsel that the first appellate court has not
assigned cogent reasons while reversing the findings of the
trial court on the question of partial eviction. It is
abundantly clear from perusal of the judgment of the first
appellate court, that the appellate court in para - 16 & 17
has elaborately discussed the evidence and the findings of
the trial court and has observed that even the defendant
was not ready to occupy Schedule - C of the property as it
was not suitable for the business as it was situated in the
western end of the suit premises where the business
activity was insignificant. The learned appellate court has
considered the comparative hardship which the parties are
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likely to suffer and held that if the plaintiff's need is
established then the question that a twenty year old tenant
is likely to suffer more than the plaintiff is unwarranted
and irrelevant factor. The appellate court has meticulously
examined the evidence and after assigning cogent reasons
has reversed the findings of the trial court. In fact, the
first appellate court has elaborately discussed the factual
and legal aspect and rightly held that it is the discretion of
the landlord to exercise his choice as to which portion of
the tenanted suit premises will satisfy the need and bona
fide requirement for setting up his business.
Thus in view of the reasons assigned by the first
appellate court in para - 16 & 17 of the judgment the
argument advanced by the learned counsel is not
sustainable.
24. The trial court, while deciding the question of partial
eviction has allowed Schedule - C of the suit premises
which opens in the alley having insignificant business
activity, and this will not suit the bonafide need of the
landlord for starting the jewellery business for his son.
In view of the findings of the appellate court, it has
been established that the landlords have a genuine
requirement to possess the suit premises which is suitable
for starting the jewellery business. The findings of the
appellate court is well reasoned and substantiated by the
evidence on record.
25. It is amply clear that the learned trial court as well as
the appellate court have recorded a concurrent finding
that the entire suit premises, i.e., schedule - A, B & C,
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were required for starting the jewellery business by the
plaintiffs and the suit premises is also not much spacious.
Considering the evidence on record and the facts and
circumstances of the case, no valid reason and ground has
been made out to grant decree of partial eviction in favour
of the appellant/ tenant.
26. For the foregoing reasons and discussions made
hereinabove, in my considered opinion, there is no valid
ground or cogent reason to interfere with the findings
recorded by the learned appellate court. The questions as
formulated are questions of facts and do not involve any
substantial question of law. In the result, the second appeal
is, hereby, dismissed.
(AMITAV K. GUPTA, J.)
High Court of Jharkhand, Ranchi
Dated the 08th April, 2021
Chandan/- N.A.F.R.
