Kanu Lal Sah vs Whether The Defendant Is Liable To ...
2022 Latest Caselaw 181 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  S.A. No. 253 of 2007

 Kanu Lal Sah                              ....     .... Appellant
                               Versus
 1(a). Raj Kishore Sah
 1(b). Basant Sah                          ....   ....   Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : M/s R.S. Mazumdar, Sr. Advocate, Rohit Roy, J. Mazumdar, S.N.Banerjee & Kaushik Sarkhel, Advocates For the Respondents : M/s B.N.Tiwary, Atanu Banerjee, Amar Kr. Sinha & Rama Kant Tiwary, Advocates

C.A.V. ON 10.01.2022 PRONOUNCED ON 31 / 01/ 2022

1. The defendant is the tenant appellant who has preferred the instant appeal against the judgment and decree of eviction passed in Title Appeal No. 160 of 2005, whereby and whereunder, the judgment and decree passed in Title (Eviction) Suit no. 61 of 1994 has been affirmed by the first Court of appeal.

2. Plaintiff filed the suit for eviction of defendant / appellant under Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1982 on the ground of default, personal necessity and of altering and damaging the tenanted premise.

3. The plaintiff Sundari Devi (now dead) was the owner of the Schedule A property which is a three storied building fully described in Schedule A of the plaint, and suit premises is part of the ground floor of this building described in Schedule B of the plaint which was rented out by the husband of the plaintiff to the defendant on a monthly rent of 300/- per month.

The further case of the plaintiff is that defendant was habitually committing default in payment of rent on several occasions. The defendant committed default in payment of rent from February, 1989 to December, 1989. The defendant voluntarily agreed to enhance the rent to Rs 300 from January 1990, but again he committed default in payment of rent for January and February. A notice for eviction was sent to him on 7.12.93 and he again committed default in payment of rent in January-February, 1995. Allegation of damaging the tenanted

premises by making alteration and addition leading to deterioration in the life of the building has also been levelled. Further ground of eviction on bonafide personal necessity has been pleaded stating that the tenanted premises was required for her son Raj Kishore Sah to start a paper, note book and magazine stall. Further necessity is stated that the she (plaintiff) was an old lady and suffering from various diseases so wanted him to start the business in the ground floor of the building so that he can be available to serve and take her care. Partial eviction would not serve the purpose as that place is most suitable for starting the business.

4. The case of the defendant interalia is that the suit was bad for misjoinder of parties as the legal heirs of deceased Munshi Prasad have not been made party in the suit and the plaintiff had no right to file the present suit as she is not the 'Karta' of the joint family. It has been denied that there had been any default on his part and the rent was being regularly paid.

The plea of bonafide personal necessity of the tenanted premises has been denied and it has been averred that it was false and concocted and the object of eviction is to give the tenanted premises to another person on higher rent after taking huge 'salami'.

Since the defendant is doing business in the premises, therefore, there is no question of damaging it in any way. Some cupboards have been fixed in the shop which cannot be regarded as damaging or making alteration in the building.

5. On the basis of the pleadings of the parties following main issues were framed by the trial Court:

V. Whether the defendant is liable to be evicted for default in payment of rent for two consecutive months.

VI. Whether the defendant has caused damage and alteration in the tenanted premises so as to entitle the plaintiff for possession after the eviction of the defendant?

VII. Whether on ground of bonafide personal necessity of plaintiff the

defendant is liable to eviction?

6. The learned trial Court after considering the evidence on record came to the finding that the plaintiff had not been able to prove his case of default or of damaging the tenanted premises but decreed the suit under Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 for personal necessity holding that the plaintiff bonafidely required the suit premises.

7. The learned First Appellate Court after hearing the parties and going through the materials available on record framed the following issues on recast:

I. Whether the suit is maintainable in its present form?

II. Whether the plaintiff has valid cause of action to bring the suit?

III. Whether the plaintiff requires the suit premises for her personal necessity as envisaged under Section 11(1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Act, 1982?

IV. Whether the plaintiff's necessity can be served by partial eviction of the tenanted premises?

8. The learned appellate Court, on Issue No.III held that the plaintiff had succeeded to establish bonafide personal necessity as ground for eviction. On Issue No. IV it has been noted that suit premises comprises of only two rooms which are interconnected and entry into the inner room is through the outer room and there is no scope for serving partial necessity by erecting an internal wall in the room. After giving these specific reasons this issue has been decided in favour of the plaintiff.

9. The appeal has been preferred on the ground that learned Courts below have failed to appreciate that plaintiff failed to discharge the onus of proving her case of personal necessity. The plaintiff had alternative vacant accommodation but no finding on the point of partial eviction has been recorded. With the death of the plaintiff the ground of personal necessity no longer subsists.

10. In view of the above concurrent finding of facts recorded by both the

learned Courts below, the matter for consideration is whether there is any substantial question of law for hearing the instant appeal?

11. The appellant has relied on the following authorities:

I. (2001) 5 SCC 705 Deena Nath Vs Pooran Lal which arose from a case under M.P. Accommodation Control Act, 1961 it has been held that held that statutory requirement of bonafide personal necessity must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti; and landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city.

II. 1998(3) PLJR 541 Sachidanand Prasad Vs Savitri Sahay.

III. 2007(2) JCR 162 (Jhr) Kripa Shankar Dwary Vs Nandlal Charan Dwary.

12. At the outset, it needs to be stated that pleadings of the appellant/defendant that tenanted premise had been taken on lease on payment of 'salami' is against the express provision under Section 3 of the Act 1982. Once the law prohibited payment of salami a plea which was contrary to law could not be considered. The second plea that plaintiff is a not the karta of the joint family, so could not bring the suit is also devoid of any merit as the tenant cannot question the title of the land lord under Section 116 of the Evidence Act.

13. On the main plea of personal necessity, it has been argued on behalf of the appellant that the plaintiff's son Raj Kishore Sao is already carrying business in tea and electronic goods from his three storied house at Dalpatti in Jharia, has been rejected by both the learned Court below on the basis of the evidence on record that Raj Kishore Sao was unemployed. I do not see any reason or ground to disturb this finding of fact recorded by both the learned Courts below. Further, Explanation II to Section 11 specifically provides--"Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference".

14. Lastly, coming to the plea of partial eviction the appellate Court framed Issue No. IV whether plaintiff's necessity can be served by the partial

eviction of the tenant from the disputed premises? The learned appellate Court has assigned specific reason and has stated that the inner room was inter-connected with the outer room and there is no other passage to approach the inner room. The size of the room also does not make partial eviction a viable and feasible option.

15. Under the circumstance, I do not find any substantial question of law involved in the present case. The Judgment and decree passed by the learned Court below is affirmed.

16. Before parting I find that the suit for eviction was filed in 1994 and decree for eviction was passed in 2005 and the appeal has been dismissed in the year 2007. Neither the cost has been awarded in this case nor any reason as required under Section 35(2) for not allowing cost has been given by the trial Court. More than sixteen years have elapsed since the order of eviction has been passed against the defendant/appellant.

17. This case is yet another example of unjust gain made by the party on the wrong who despite the order of eviction has continued in the illegal occupation of the tenanted premise by simply procrastinating the matter in appeal. One of the reason for delay in civil adjudication is that quite often delay is profitable for the party on the wrong and there lies the incentive for causing delay by various means, which includes filing frivolous interlocutory applications and unmerited appeals.

18. In order to meet precisely such situation, the Hon'ble Apex Court in Karnataka Rare Earth Vs. Deptt. of Mines & Geology, (2004) 2 SCC 783held that "When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost.

In Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd., (2005) 1 SCC 705 the Hon'ble Apex Court held that the tenancy terminates from the date of the decree passed by the lower forum. The Court held, "We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy. 18. That apart, it is to be noted that the appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd. [(1999) 2 SCC 325] this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property." Delhi High Court while dealing with similar matter held in Trilochan Singh v. Daya Shankar, 2010 SCC Online Del 4139 : "40. To help redeem the situation, and also set an example for

litigants and prevent them from abusing the process and taking advantage of laws, delays to benefit themselves and deprive another of the usufruct of his property, I propose to examine the matter further and pass orders. 49. Every party is expected to comply with the law and the contract that he has entered into and his failure to do so and his causing unnecessary litigation should mean a penalty and not a benefit for him. Our Courts are overloaded because it is widely believed that to force the other party to start litigation will in the end be beneficial for the wrong-doer.

50. To tackle Court delays, the motivation for raising disputes and delaying litigation must be removed. A party who makes a claim or raises a dispute before a Court must know that whenever the case is decided, and if it is decided against him, not only all benefits that he may have received in the meantime will have to be paid back, but all losses of the other party will also have to be compensated. Unless all losses and deprivations of the successful party have been fully compensated for, the Court fails in its task of doing justice. If Courts pass orders directing payment of realistic costs and compensation that sufficiently make up for the losses of the other, the motivation behind raising of disputes will be removed and the Courts will be freed of a lot of frivolous litigation. Where a lessee whose lease has been determined, or a tenant who is no longer entitled to protection of rent control laws, fails in his obligation to deliver possession to the landlord, he and all those who are occupying the premises with him and if the tenant be dead or gone the legal heirs or others who are in possession incur the liability of mesne profits towards the landlord. Such liability arises by reason of their failure of comply with the law and deliver possession to the owner. 53. A person, cannot say that I am occupying but I am not liable for mesne profits. Each person would be liable. If a person who is impleaded as a respondent to the eviction petition or an appeal and is not interested really in the subject matter of the appeal, and may not even be in possession, on receiving notice from the Court, does not file an affidavit in the Court stating that he is not concerned with the premises, he runs the risk of the Court, when finally deciding the matter, also making him liable for any mesne profits."

Roshan Lal Vegetable Products Pvt. Ltd. v. Param International, 2011 SCC Online Del 325 9. "Both to do justice and to remove the factor of this difference as encouraging disputes and court delays, it is necessary that courts must assess mesne profits at a figure which closely resembles the rate at which the premises in question could have been let or the rate at which the lessee could have hired similar premises, i.e., prevalent market rate of rent."

The Calcutta High Court applied the principle of restitution in C.O. 1627 of 2015 in its order dated 30.11.2015 wherein it was held, "the appellate court shall not be guided by the factors that the parties at one point of time while creating the tenancy have agreed at the meagre amount of rent, at the time of putting the condition for passing the order of stay. It is dependent upon the various factors before the Appellate Court on the prevalent market rent in a nearby premises......... Appellate court is within its power and jurisdiction to direct the appellant to pay the occupational charges at the prevalent market rent but at the same time the court should not be totally fixed the quantum which in other way operate harshly upon the appellant and the order appears to be punitive and in terrorism."

19. There is a long line of judicial precedents wherein the order of restitution has been passed to discourage unjust enrichment by using protracted litigation as tool in perpetuating the illegal possession. The object of passing such an order is to restore to the successful party of what it had lost and been deprived of. There is a sanctity of judicial process and the party making a plea in the Courts of law need to do so with all responsibility and not to harass the other side so that he may even abandon his claim/defence altogether or to make an unjust gain from the delays Keeping in view the judgments, quoted above, there must be proper restitution which is necessary to do complete justice and remove incentives for obstructions and delays. I deem it fit and proper to order restitution in the present case.

For the reasons recorded in the earlier part of the judgment the appeal is dismissed, but I direct an enquiry into the mesne profit for the period from the date of eviction order (2nd September, 2005 till the delivery of possession. The mesne profit shall be the assessed market rent for every

three years from the date of eviction order and will be determined by the competent authority as per law. For this purpose, the proceedings will continue and the case is remanded back to the trial Court or the successor Court for enquiry into the mesne profits in terms of this judgment. The amount so determined will be executable as a decree for recovery of money, along with the interest at the rate of 12% per annum from 2nd September, 2005 to 31st March, 2016 and from 1.4.2016 at the rate of 9%.

The appeal stands dismissed.

Consequently, I.A. No. 6361 of 2014 stands disposed of.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 31st January, 2022 AFR / A.K.T.