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Arun Kumar Sah v. Md. Basis Ahmad And Another

Patna High Court

Dec 10, 1980

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The respondents (two brothers) as plaintiffs filed a suit for eviction of the appellant (tenant) on the ground of personal necessity under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (the Act). They sought possession of a tenanted shop occupied by the appellant for expansion of their business (watches and a "National Gift House") and to provide occupation for the three grown-up sons of respondent Basir Ahmad. The disputed rented premises are on the main Sujaganj Bazar Road in Bhagalpur. The plaintiffs already ran a small rented watch business (National Watch Company) with only a 4 to 5 cubit frontage and had purchased nearby land in 1963 where they ran the Gift House and other agencies.

At trial, the suit was dismissed for failure to establish personal necessity. On first appeal the lower appellate Court set aside the trial judgment, held that the plaintiffs required the suit holding reasonably and in good faith for personal necessity, and decreed eviction from the entire disputed premises. The defendant (appellant) filed this second appeal (the present proceeding). While admitting the appeal, the single Judge framed two substantial questions of law concerning (1) sufficiency of evidence to establish personal necessity under the Act and (2) whether the lower appellate Court should have examined whether the plaintiffs' requirement could be satisfied by partial eviction.

Legal Issues Presented

Whether the evidence led by the plaintiffs is sufficient in law to establish personal necessity within the meaning of Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947.
Whether the lower appellate Court was under a duty to examine whether the plaintiffs' requirement could be substantially satisfied by evicting the tenant from part only of the premises (i.e., whether a partial decree should have been considered and granted under the proviso to Section 11(1)(c)).

Arguments of the Parties

Appellant's Arguments (Mr. S.C. Ghose)

The finding of the lower appellate Court that the plaintiffs required the holding reasonably and in good faith for personal necessity was wrong on the materials and should be set aside.
The plaintiffs failed to prove their capital position or that they had capital sufficient to expand the business; the trial Court's observation on absence of evidence of capital was not addressed by the lower appellate Court.
The requirement under Section 11(1)(c) must exist on the date of institution of the suit and cannot be based on needs arising after the suit; therefore the Court must judge necessity as of 1971 (the filing date).
The lower appellate Court overlooked that the plaintiffs could expand their business in existing vacant space (e.g., inside the National Gift House or the back portions) and that physical layout might permit expansion without eviction.
Alternatively, even if eviction were justified, the proviso to Section 11(1)(c) contemplates partial eviction where the landlord's reasonable requirement may be substantially satisfied by evicting the tenant from part only of the building; the appellant was willing (Mr. Ghose submitted) to continue in occupation of such portion as the Court considered appropriate, and therefore the Court should consider partial eviction.
Although there was no specific pleading or evidence of such partial-occupation agreement, this Court should, in the interests of justice and given precedent, permit consideration of partial eviction even at this stage.

Respondents' Arguments

The respondents' counsel refuted the contentions raised by Mr. Ghose (the opinion records that learned counsel for the respondents refuted the appellant's submissions).
The respondents relied on the evidence that their business was expanding, that the three sons of Basir Ahmad were unemployed (and would need occupation), and on the lower appellate Court's findings that expansion could not be effected in the existing spaces and that physical means (e.g., a new staircase) could enable use of the first floor Gift House.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rahman Jeo Wangnoo v. Ram Chand, AIR 1978 SC 413 (Supreme Court)	Provisions similar to the proviso require the Court to consider whether partial eviction should be ordered even if evidence on that point was not specifically pleaded or taken at trial; appellate Court must examine the question of partial eviction.	The single Judge relied on this decision to justify remanding the matter so that the trial Court may consider whether the landlord's reasonable requirement can be substantially satisfied by partial eviction under the proviso to Section 11(1)(c).
Ranjit Singh v. Shanti Devi (Second Appeal No. 257 of 1977), Division Bench of this Court (disposed 16-8-1979)	When a case involves Section 11(1)(c), the question of partial eviction under the proviso should be considered and, if necessary, remanded for such consideration.	The opinion cites this Division Bench decision as supporting the approach of remanding for consideration of partial eviction under Section 11(1)(c).
Krishna Das Nandy v. Bidhan Chandra Roy, AIR 1959 Cal 181 (Calcutta High Court)	The appellate Court may entertain the plea of partial eviction for the first time at the appellate stage if the trial Court did not properly consider it; a court administering justice may hear a relevant point even if it was not mooted earlier, provided the other party is not prejudiced beyond recompense.	The opinion relies on this decision to support the proposition that where the statute casts a duty on the Court to consider an aspect (here, partial eviction), delay or default in pleading may be less relevant, and that an appellate remand on that limited point is permissible.

Court's Reasoning and Analysis

The Court proceeded in two stages, addressing first whether the evidence established personal necessity under Section 11(1)(c) and secondly whether the proviso required the Court to consider partial eviction.

1. On the sufficiency of evidence for personal necessity:

The lower appellate Court had categorically found that the plaintiffs required the suit holding reasonably and in good faith for personal necessity; this was treated as a finding of fact. The single Judge stated that a finding of fact by the lower appellate Court, duly recorded in accordance with law, is binding unless shown to be perverse.
The trial Court's contrary finding was examined and was found to be erroneous on the materials. The trial Court had doubted the plea of expansion because the plaintiffs had not produced evidence of their capital in 1971, but the defendant's witness (D.W.1) admitted that the plaintiffs' business had expanded and other plaintiffs' witnesses supported the expansion. The lower appellate Court had also found the plaintiffs' business was growing, which the single Judge interpreted as implying sufficient capital for expansion.
The single Judge acknowledged the statutory requirement that the landlord's need must be assessed as of the date of suit, but found that the lower appellate Court's assessment that the plaintiffs' requirement existed in 1971 was supported by the record (for example, the three sons were unemployed in 1971 and the plaintiffs had long run their business and intended expansion).
The trial Court's view that existing vacant space (in the Gift House or the small rented watch room) was sufficient for expansion was rejected by the lower appellate Court and accepted by the single Judge, who noted that the dimensions and location of existing premises (e.g., small frontage, back portion not on main road) did not make expansion feasible; the lower appellate Court's differing factual assessment on this point was not disturbed.
The Court also accepted the lower appellate Court's point that, if the suit premises were obtained, structural changes (for example constructing a staircase from Sujaganj Bazar Road to access the first floor where the Gift House is located) could enable reasonable expansion—another factual consideration supporting the finding of necessity.

2. On the proviso to Section 11(1)(c) (partial eviction):

The proviso contemplates that where the Court thinks the landlord's reasonable requirement may be substantially satisfied by evicting the tenant from part only of the building, and the tenant agrees to continue in occupation of the rest, the Court shall pass a decree accordingly and fix proportionate fair rent. The single Judge analyzed this textually and observed that this situation arises after the Court accepts the landlord's reasonable requirement.
Mr. Ghose argued that the physical configuration of the premises might allow the plaintiffs' requirement to be substantially satisfied by evicting the tenant from only a portion (for example to permit construction of a staircase) and that the defendant would agree to remain in the remainder; however, there was no pleading or evidence to this effect in the trial or lower appellate proceedings.
The Court addressed whether such a plea (consent to occupy part only) could be entertained at the stage of second appeal in the absence of pleading, issue or evidence. It reviewed authority (Supreme Court and High Court decisions) which instruct that where the statute casts a duty on the Court to consider a particular aspect (here the proviso), the appellate Court should ensure the matter is considered even if the point was not previously mooted and evidence not led, provided prejudice is not fatal.
The Court noted that learned counsel for the respondents did not claim prejudice and did not oppose consideration on remand. Given the statutory mandate (the proviso) and the cited authorities (Rahman Jeo Wangnoo; Ranjit Singh v. Shanti Devi; Krishna Das Nandy v. Bidhan Chandra Roy), the single Judge held that remand was necessary so that the trial Court could frame the appropriate issue, receive evidence, and decide whether partial eviction would substantially satisfy the landlords' reasonable requirement.
The Court made clear procedural directions: the trial Court should frame an issue on whether the proviso applies, allow parties to adduce evidence, hear counsel, and then decide whether full eviction is necessary or partial eviction (with proportionate rent fixed) would meet the landlords' requirement. The Court further held that absence of a specific pleading under the proviso should not prevent the trial Court from acting to fulfill the statute's mandate.

Holding and Implications

Holding (core ruling): The single Judge confirmed the lower appellate Court's finding that the plaintiffs had established personal necessity reasonably and in good faith under Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. However, the matter is remanded to the trial Court to determine, under the proviso to Section 11(1)(c), whether the landlords' reasonable requirement may be substantially satisfied by evicting the tenant from a part only of the premises.

Implications and consequences:

The lower appellate Court's decree on the substantive finding of personal necessity is upheld.
The case is remanded to the trial Court with directions to:

Frame an issue specifically on whether the landlords' reasonable requirement can be substantially satisfied by partial eviction pursuant to the proviso to Section 11(1)(c).
Permit the parties to adduce evidence and address the court on that limited issue.
If, after evidence, the trial Court finds full vacation is necessary to substantially satisfy the landlords' requirement, the suit shall be decreed in full; if partial eviction suffices, an appropriate partial-decree shall be passed and a proportionate fair rent fixed for the portion retained by the tenant, in accordance with the proviso.

The single Judge directed that the absence of a specific pleading under the proviso shall not prevent the Court from complying with the statutory mandate to consider partial eviction.
There will be no order as to costs in this Court.

No additional findings or broader new legal precedents were announced by this opinion; the Court relied on existing case law to justify remanding the limited question of partial eviction for evidentiary consideration.

Order accordingly.

Show all summary ...

1. This is defendant's second appeal against the judgment of reversal passed by the learned Second Additional Subordinate Judge, Bhagalpur, in an appeal arising from a suit for eviction filed by the two brothers, who are respondents.

2. The suit for eviction was filed by the respondents as plaintiffs on the ground of personal necessity, namely that they required tenanted shop in occupation of the appellant for their personal requirement and business, as also for the three sons of respondent Basir Ahmad, who are all grown-up. The disputed rented premises in which the appellant runs a cloth shop exists on the main Sujaganj Bazar Road leading to Bhagalpur Railway Station, and passing through one of the main markets of the town of Bhagalpur. The respondents run a business in watches by the name and style of the National Watch Company in a small rented shop, having undisputedly only a frontage of 4 to 5 cubits in breadth. Certain purchases were made by the plaintiffs in the year 1963. The lands purchased are near the disputed shop. They have no frontage towards the main Sujaganj road. In a portion of this purchased land the plaintiffs also run a business of watches, locally called as ‘National Gift House’. Several agencies of sewing machine and other articles were also obtained by them. For expansion of their business, particularly with a view to provide occupation to the three sons of respondent Basir Ahmad, the plaintiffs, on refusal of the defendant to vacate the suit premises, filed the instant suit for eviction, which was resisted by the appellant.

3. The trial Court dismissed the suit of the plaintiffs on the ground that the plaintiffs had not succeeded in establishing personal necessity.

4. The respondent took up the matter in appeal. The lower appellate Court held that the respondents required the suit holding reasonably and in good faith for their personal necessity and consequently after setting aside the judgment of the trial Court, it decreed the plaintiffs' suit for eviction from the entire disputed premises, which has given rise to this second appeal at the instance of the defendant.

5. Two substantial questions of law were formulated by the learned single Judge of this Court while admitting this second appeal. They are mentioned in order No. 11 dated 5-1-1980. The first is whether the evidence led by the plaintiffs is sufficient in law to establish personal necessity within the meaning of the Bihar (Rent) Control Act? The second is whether the lower appellate Court was under the duty to examine the question if the necessity of the plaintiffs can be satisfied by a partial decree in the present case?

6. The submission of Mr. S.C Ghose, learned counsel for the appellant, was twofold. His first submission was that on the materials on record the finding of the lower appellate Court about the suit holding being required by the plaintiffs reasonably and in good faith for their personal necessity was wrong and should be set aside. The second submission was on the lines as indicated in point No. 2 formulated at the time of admission of the appeal. Learned counsel for the respondents refuted the contentions raised by Mr. Ghose.

7. The lower appellate Court held categorically that the plaintiffs required suit holding reasonably and in good faith for their personal necessity. This is a finding of fact. A finding of fact duly recorded by the lower appellate Court in accordance with law is binding on this Court. It is true that this finding recorded by the lower appellate Court is contrary to the finding recorded by the trial Court but on the materials on record the trial Court appears to be in error in arriving at this finding.

8. The submission of Mr. Ghose was that this finding suffered from certain infirmities, which, according to Mr. Ghose, vitiated the judgment of the lower appellate Court. The main plea taken by the plaintiffs was personal necessity for expansion of the business. The trial Court observed in its judgment that the plea of expansion of the business cannot be regarded as convincing for the reason that no evidence was led by the plaintiffs-landlords to show as to what was their capital in 1971 when the suit was filed or their present capital. Mr. Ghose contended that this aspect had not been considered by the lower appellate Court. As stated above, the plaintiffs set up a case of expansion of the business of their own as also for the three sons of Basir Ahmad who are all grown up boys and are undisputedly unemployed although one of them has graduated and the other two passed intermediate examination. The defendant did not dispute in his pleading that the plaintiffs had no capital to expand their business. Rather, D.W 1 admitted that the business of the plaintiffs had expanded. There is also the evidence on behalf of the plaintiffs' witnesses to support this part of the case of the plaintiffs. The lower appellate Court has also found that the plaintiffs' business is growing day to day. These impliedly mean that the plaintiffs must have sufficient capital for expansion of the business and, there is, therefore, no reason to disturb the finding of fact arrived at by the lower appellate Court.

9. The second submission of Shri Ghose was that the requirement mentioned in Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, (hereinafter to be referred to as ‘the Act’) must be the requirement on the date of institution of the suit, and the Court will not be justified in allowing the prayer for eviction on the ground of the requirement arising subsequent to the filing of the suit. This position cannot be disputed, but, as satisfactorily discussed in the judgment of the lower appellate Court, the materials on the record justify a finding about reasonable requirement and in good faith even in the year 1971 when the suit was instituted. At marginally noted page 12 of the lower appellate Court's judgment, it has been found that in the year 1971 the three sons of Basir Ahmad were unemployed. These sons of Basir Ahmad might not have attained majority at the time of institution of the suit and might have been students, but the plaintiffs, who are undisputedly running their business since long before the institution of the suit, might have intended to expand their business in the particular context of the employment of the three sons of Bisar Ahmad.

10. There is another aspect of the matter also, which leads to the consideration of another argument advanced by Mr. Ghose, namely, the finding of the trial Court that there is sufficient space in the ground floor of the National Gift House for keeping almirah and displaying goods. According to Mr. Ghose, this aspect of the case has not been considered by the lower appellate Court. The dimensions of the shop in which the Gift House is located, are only about 30′ × 12′. It is in the back portion of the National Watch Company, a shop of the plaintiffs situate in a rented premises. The shop in which the Gift House is situated is not located in the main Sujaganj Road. The National Watch Company is itself located in a rented room quite small in size, its frontage on the main Sujaganj Road being 4 × 5 cubits. After giving these reasons the lower appellate Court has found that it does not agree with the finding of the trial Court that the plaintiffs can expand their business in the space lying vacant inside.

11. There is still a third aspect which the lower appellate Court has rightly considered, namely, that if the suit premises is obtained by the plaintiffs, they can construct a staircase right from Sujaganj Bazar Road for going upon the first floor of the premise locating Gift House.

12. Having considered all these aspect and the materials on the record the lower appellate Court recorded the above findings of fact.

13. The submission of Ghose further was that any and every requirement of the landlord may not attract the provisions of Section 11(1)(c) of the Act for which the requirement must be reasonable and in good faith. What is reasonable and in good faith is a question of fact to be determined on the evidence on the record and the circumstances flowing therefrom. The lower appellate Court on a consideration of the evidence and the circumstances flowing therefrom has recorded a finding that the requirement of the plaintiff is reasonable and in good faith. I do not see any reason to disturb this finding of the lower appellate Court.

14. The result is that it is held that the evidence on the record is sufficient in law to establish the ground of personal necessity to attract the provisions of Section 11(1)(c) of the Act as correctly found by the lower appellate Court.

15. This takes me to the consideration of the second point urged by Mr. Ghose which, in my opinion, has to prevail. There is a proviso to sub-section (1)(c) of Section 11 of the Act which runs as follows:—

“Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall thenceforth constitute the building within the meaning of Clause (aa) of Section 2, and the rent so fixed shall be deemed to be the fair rent fixed under S. 5.” The situation contemplated in the proviso can arise after the case of the landlord about his requirement being reasonable and in good faith is accepted. This Act was intended for the benefit of the tenant. Circumstances may arise where continuance of a tenant in a portion of the rented premises may not stand in the way of reasonable requirement of the landlord being substantially satisfied. The proviso, therefore, lays down that where the Court thinks that the requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix proportionately fair rent as contemplated therein. This aspect has not been considered by the two Courts below.

The submission of Mr. Ghose was that the position of the premises locating Gift House was such that even after allowing the tenant to continue in occupation of a portion of the suit premises, the personal requirement of the plaintiff-landlords may be substantially satisfied by evicting the tenant from a portion to enable the plaintiffs to construct a staircase right from the flank of Sujaganj Road to the premises locating the Gift House, if necessary, to provide accommodation for show of the materials for sale. The proviso refers to the agreement of the tenant and is conditioned by such an agreement. The submission of Mr. Ghose was that although there was no such pleading and do evidence was adduced, the defendant would be agreeable to continue only in such portion of the suit premises as might be considered appropriate by the Court on a consideration of the substantial satisfaction of the requirement of the landlords.

16. A question arises whether such a plea should be allowed to be taken at the stage of second appeal in the absence of any pleading, issue or evidence or even grounds taken in the second appeal. Mr. Ghose contended that the provision of the Act having been enacted for the benefit of the tenant this Court should not hesitate in allowing such a plea and in support of his contention he referred to two decisions, one of the Supreme Court and the other of a Division Bench of this Court. The Supreme Court decision is reported in AIR 1978 SC 413 (Rahman Jeo Wangnoo v. Ram Chand). In the case in paragraph 2 their Lordships observed as follows:—

“… .. …The trial Court and the first appellate Court have really not considered this question on merits; indeed evidence itself has not been taken on the score that there has been no specific plea in that behalf. We are satisfied that the proviso aforesaid mandates the Court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted.”

Their Lordships directed the first appellate Court to go into the question as to whether the reasonable requirement of the landlord may be substantially satisfied by evicting the tenant from a part only of the premises as contemplated in the proviso with certain observation mentioned above. It is true that the Act that was under the consideration of the Supreme Court in this decision was the Jammu and Kashmir Houses and Shops Rent Control Act (34 of 1966) but Shri Ghose contended, whose contention was not refuted by the learned counsel for the respondents, that the provision of the said Act was similar to that contained in the proviso to Section 11(1)(c) of the Act. The second was a decision of the Division Bench of this Court in Ranjit Singh v. Shanti Devi (Second Appeal No. 257 of 1977) disposed of on 16-8-1979. While remanding the case their Lordships ordered that the question of partial eviction of the tenant under Section 11(1)(c) of the Act should be considered.

17. There is yet another decision of the Calcutta High Court in Krishna Das Nandy v. Bidhan Chandra Roy (AIR 1959 Cal 181) where it was held that there was enough justification under the statute, namely, West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950) to allow the plea of partial eviction to be taken by the defendant for the first time before the appellate Court if it had not been considered on considered properly by the trial Court. Their Lordships observed that

“sitting in this Court for administering justice, I have never refused to listen to a point, relevant to the case, merely because it was not mooted earlier unless the other party happened to be prejudiced thereby beyond recompense .. … …”

The further observations were that where

“the statute casts a duty on the Court to consider a particular aspect of the matter, the question of delay or default on the part of a party may not be strictly relevant .. … …”

Learned counsel for the respondents did not complain regarding the appellant being in any way prejudiced if the matter is sent back for reconsideration on this limited point and in face of the decision of the Supreme Court in the case of Rahman Jeo Wangnoo (AIR 1978 SC 413) (supra) he raised no objection before this Court in allowing the contention of Mr. Ghose. In such a situation a remand of the matter on this limited point appears to be necessary.

18. The result is that the appeal succeeds in part. While the finding of the lower appellate Court about personal requirement of the respondents being reasonable and in good faith is confirmed, the matter is remanded to the trial Court for going into the question as to whether the reasonable requirement of the respondents may be substantially satisfied by evicting the appellant from a part only of the premises in question as contemplated in the proviso to Section 11(1)(c) of the Act. The trial Court will frame an issue to this effect, allow the parties to adduce evidence regarding the same and on hearing counsel for the parties shall give a finding on this limited issue. If after taking evidence the Court is satisfied that the entire premises in suit must be vacated to substantially satisfy the reasonable requirement of the landlords, the suit shall be decreed in full. If, on the other hand the Court finds that the proviso applies and that partial eviction will meet the ends of justice, as visualised in the proviso, an appropriate order will be passed on that footing. The Court shall proceed on the footing that the absence of a specific pleading under the said proviso does not stand in the way of the obligation of the Court to act in compliance with the mandate of the statute. There will be no order as to costs in this Court.