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Shri Abhay Chandra Jha v. Smt. Brijeshwari Devi Birji Devi Opp. Party.
Factual and Procedural Background
The revision application was initially time-barred; however, after hearing counsel and considering the limitation petition, the Court condoned the delay and allowed the limitation petition.
The tenant is the revisionist challenging the judgment and decree dated 26.9.2002 of the court below which decreed the plaintiff-opposite party's eviction suit under section 11(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. The suit related to a flat on the southern side of the second floor of a three-storeyed building (house no. 5A/3, Holding no. 3287/1561) comprising six flats; the stair-case to the roof passes through the flat in question. The suit premises was let to the tenant in 1988 and at the time of the eviction suit the rent was Rs. 1900 per month.
The plaintiff-opposite party claimed eviction on the ground of personal necessity: her family (herself, husband and son) required the flat because her son's marriage was fixed and the roof (accessible via the stair-case through the flat) was required for marriage-related religious functions and for the post-marriage residence of her son and daughter-in-law; she occupied a ground-floor flat where other nearest relations also lived and could not accommodate the newly married couple there.
The tenant admitted the stair-case passed through the flat but contested the landlord's personal necessity, stating that the plaintiff's son already lived in two rooms on the garage, that other flats were vacant and could have been used by the plaintiff, and therefore the claimed need was not bona fide or reasonable.
At trial the plaintiff examined six witnesses and filed documents; the tenant examined eleven witnesses and produced documents. The trial court found the plaintiff's need to be reasonable and bona fide and held that partial eviction (per the proviso to section 11(1)(c) of the Act) would not substantially satisfy the plaintiff's need; accordingly the trial court decreed the suit. The revision invokes the proviso to section 14(8) of the Act to challenge whether the judgment and decree are according to law.
Legal Issues Presented
- Whether the landlord's claim for eviction under section 11(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 was established as a reasonable and bona fide personal necessity.
- Whether partial eviction in terms of the proviso to section 11(1)(c) would have substantially satisfied the landlord's need.
- Whether the landlord could be compelled to occupy other premises that became vacant during the pendency of the suit, or whether Explanation-II to section 11(1)(c) permits the landlord to prefer a particular premises.
- Whether the court below's findings involved overlooking material evidence, reliance on inadmissible evidence, misdirection as to bona fide need, failure to consider the proviso to section 11(1)(c), or were otherwise unreasonable or perverse such as to warrant interference under the proviso to section 14(8) of the Act.
Arguments of the Parties
Tenant-Petitioner (Revisionist) — Arguments
- The trial court did not properly consider the question of personal need and the possibility of partial eviction.
- The son's marriage was already solemnised by the time of disposal of the suit, so the asserted need for the premises at the time of marriage no longer existed.
- Other flats became vacant during the pendency of the suit and the plaintiff could have occupied those; therefore the plaintiff's need was not genuine or bona fide.
- The tenant admitted the stair-case passed through the flat but challenged the necessity claimed by the landlord, noting that the plaintiff's son lived in two rooms on the garage which could negate the claimed need.
Plaintiff-Opposite Party — Arguments
- The plaintiff maintained that the flat was required reasonably and in good faith for the marriage functions (use of the roof via the stair-case) and for the subsequent residence of her son and daughter-in-law.
- The plaintiff supported the trial court's finding that partial eviction would not substantially satisfy her need because of the flat's layout (single bathroom, rooms opening to verandah and stair-case passing through verandah) and because she preferred that particular flat.
- The plaintiff's counsel opposed the tenant's submissions and supported the trial court's findings and decree.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Savitri Sahay v. Sachidanand Prasad, (2002) 8 SCC 765 | Interpretation of Explanation-II to section 11(1)(c) — where a landlord has two or more premises let out, it is for the landlord to choose which premises he prefers; a tenant cannot question that preference; the landlord is not required to keep other premises vacant or to offer them to the tenant during pendency of an eviction suit. | The Court relied on this Apex Court decision to support the trial court's conclusion that the plaintiff could prefer the flat in question and could not be forced to occupy other premises that became vacant; thus vacancy of other flats did not negate the bona fides of the plaintiff's need for the specific flat. |
Court's Reasoning and Analysis
The Court proceeded in stages:
- Condonation of Delay: The Court first addressed the limitation objection and, after hearing counsel and considering the averments in the limitation petition, found sufficient ground to condone the delay and allowed the limitation petition.
- Scope of Revisional Power: The revision was filed under the proviso to section 14(8) of the Act. The Court explained that the power under this provision is wider than revisional power under the Code of Civil Procedure but is not co-extensive with the appellate power. The Court set out the limited grounds on which it would interfere: overlooking material evidence, reliance on wholly inadmissible evidence, misdirection concerning bona fide and reasonable need, failure to consider mandatory provisions (such as the proviso to section 11(1)(c)), or if the finding is unreasonable and perverse.
- Evaluation of Evidence on Personal Necessity: The Court reviewed the trial court's factual findings. It noted that the plaintiff gave consistent evidence that her household comprised five members and that her son’s marriage required use of the roof accessed via the stair-case passing through the flat; the trial court accepted this evidence and rejected the tenant's denial evidence. The trial court's view that the flat in question would meet the plaintiff's reasonable personal need was affirmed.
- Consideration of Partial Eviction: The trial court had found that partial eviction would not substantially satisfy the plaintiff's need, based on the flat’s physical layout — only one bathroom, three rooms opening onto the verandah, and the stair-case passing through the verandah — and on the tenant's refusal or absence of willingness to accept partial eviction. The revisional Court found no error in that assessment.
- Effect of Vacancy of Other Flats and Explanation-II: Although the trial court did not expressly find on the vacancy of other flats during pendency, the revisional Court held that even accepting that some flats became vacant, Explanation-II to section 11(1)(c) allows the landlord to choose which premises to prefer. The Court relied on the Apex Court decision in Savitri Sahay v. Sachidanand Prasad to reinforce that a landlord cannot be compelled to occupy other premises nor is the landlord obliged to keep alternate premises vacant while an eviction suit is pending.
- Conclusion on Interference: The Court found no basis—such as overlooked material evidence, misdirection, or perversity of the trial court’s findings—to interfere with the trial court's decree.
Holding and Implications
Holding:
Revision application dismissed.
The Court also explicitly condoned the delay in filing the revision application and allowed the limitation petition.
Implications:
- The decree of the court below decreeing the eviction suit under section 11(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 is upheld by the revisional Court.
- The Court held that the landlord's preference for the particular flat was permissible under Explanation-II to section 11(1)(c) and that vacancy of other flats does not automatically rebut a bona fide personal necessity claim where the landlord has valid reasons for preference and the trial court has accepted the evidence.
- No new precedent was announced by the Court; the decision applies existing statutory interpretation and relied upon an earlier Apex Court authority to sustain the trial court's conclusion. The direct effect is to affirm the trial court's decree in favor of the plaintiff-opposite party and to dismiss the tenant's revision challenge.
1. The revision application is time-barred. After hearing learned counsel for the parties and taking into consideration the averments made in the limitation petition. I find that sufficient ground has been made out to condone the delay. Accordingly, the delay in filing the revision application is condoned and the limitation petition, thus, stands allowed.
2. The tenant is the revisionist and he has filed the present revision application against the judgment and decree dated 26.9.2002 passed by the court below decreeing the suit of the plaintiff-opposite party for eviction on the ground of personal necessity under section 11(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’). The admitted fact is that the suit premises is a part of house no. 5A/3, situated in Dr. Laxmi Narayan Path, near Pole Factory, North Shrikrishnapuri in the town of Patna. Holding number is 3287/1561. The building is a three storeyed building having six flats. Its exit is towards west and there is a stair-case. There are three flats on each side (north and south) of the stair-case. The eviction suit against the petitioner has been brought with regard to the flat on the second floor towards southern side. It is an admitted position that the stair-case leading to the roof of the building passes through the flat in question. Each of the flats has three rooms, a verandah, a bath-room and kitchen. It is also an admitted position that the suit premises was let out by the plaintiff-opposite party to the tenant-petitioner in 1988 and at the time of filing of the eviction suit, the rent was Rs. 1900/- per month.
3. The case of the plaintiff-opposite party is that her family consists of herself, her husband and a son. Her son has completed education and his marriage has been fixed and the flat in question is required at the time of performance of his marriage as the stair-case passes through the said flat and the roof will be required for performance of the religious function at the time of marriage and the flat is also required after the marriage for living of her son and his married wife. She is in occupation of one fiat at the ground-floor, where two other rarest relations are living and as such it is not possible to accommodate her son and his married wife in the said flat. In other words, the plaintiff claims the suit premises on the ground of personal necessity and she requires the same reasonably and in good faith. She further stated that the said flat would only meet her requirement.
4. The tenant-petitioner admitted the fact that the stair-case passes through the said flat leading to the roof, but challenged the personal necessity of the land-lord and asserted that the son of the plaintiff lives in two rooms constructed on the garrage. Other flats are also vacant and her need could have been satisfied by occupation of the said flats, but she let out the said flats and as such the need is not reasonable and bona fide one.
5. The plaintiff-opposite party examined six witnesses and filed documents and the tenant-petitioner examined eleven witnesses and produced documents. The trial court having considered the matter found that the suit premises was required reasonably and in good faith for personal use by the plaintiff and that the partial eviction in terms of proviso to section 11(1)(c) of the Act will not substantially satisfy the need of the plaintiff-opposite party and, accordingly, decreed the suit.
6. Learned counsel appearing for the tenant-petitioner submitted that the court below has not considered the question of personal need and partial eviction in right perspective and has ignored the fact that the marriage of the son of the plaintiff was already solemnised and as such the very need, for which the suit premises was required, was not in existence at the time of disposal of the suit. He further submitted that other flats became vacant during this period and the plaintiff could have occupied the same and this conduct of the plaintiff shows that her need is not genuine or bona fide one.
7. Learned counsel appearing for the plaintiff-opposite party combated both the submissions and supported the findings arrived at by the court below.
8. This revision application has been filed under the proviso to section 14(8) of the Act, which empowers this Court to see as to whether the jugment and decree passed by the court below are according to law or not. The power under the said provision is wider than the revisional power under the Code of Civil Procedure but even then it cannot be equated with the wide appellate power as vested in the appellate court to decide the question as to whether the order is according to law or not. This Court will interfere with the impugned judgment if it finds that the court below has overlooked the material evidence having a bearing on the question or has relied upon a wholly inadmissible evidence or has misdirected while considering the bona fide and reasonable need of the plaintiff or has overlooked the settled principles while considering the evidence on record or has not considered the question of partial eviction in terms of the mandatory provision as contained in the proviso to section 11(1)(c) of the Act. Apart from the aforesaid ground, if the finding is unreasonable and perverse, the Court will interfere and record its own finding.
9. So far as the personal need of the plaintiff-opposite party is concerned, the consistent evidence of the plaintiff is that five members i.e herself, her husband, her son and two other nearest relations are living in the flat in her occupation and after marriage her son and his wife cannot be accommodated in the said flat and, therefore, she requires the flat in question to meet the personal need at the time of marriage of her son by occupying the flat as well as using the roof above the same through stair-case, passing through the flat and for residence of her son and daughter-in-law after their marriage. The court below has found that the said evidence is consistent and acceptable. The denial evidence by the defendant-petitioner has not been accepted by the court below. It has also considered the question of non-occupation of other flats, which became vacant during the pendency of the suit. The court below noticed Explanation-II to section 11(1)(c) of the Act and held that the said provision permitted the landlord to ignore other premises and to prefer a particular premises. The court below also considered the question of partial eviction and found that in view of the fact that there is only one bath-room and all the three rooms used to open in the verandah and the staircase also passes through the verandah to the roof, the partial eviction will not substantially satisfy the need of the plaintiff. This finding has been arrived at by the trial court after taking into consideration the fact that the tenant never desired that he would agree for a partial eviction in terms of the proviso to section 11(1)(c) of the Act. Thus, nothing has been pointed out by the learned counsel for the tenant-petitioner to show that any material evidence was overlooked by the trial court or it has not considered the evidence in the right legal perspective, in other words the trial court has ignored the principles governing the consideration of question of eviction on the ground of reasonable and bona fide need. Though the trial court has not given any finding on the question that other flats became vacant during the pendency of the suit, but even if it is accepted as stated by the defendant-petitioner that some flats became vacant during the pendency of the suit, which could have been occupied by the landlord-opposite party, the same would not make any difference so far as the question of eviction from the premises in question is concerned. Explanation-II to section 11(1)(c) of the Act provides that 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. This provision has been recently considered by the Apex Court in the case of Savitri Sahay v. Sachidanand Prasad, reported in (2002) 8 SCC 765, wherein it has been held at paragraph no. 9 as follows:—
“9. Under normal circumstances if a landlord during the trial gets vacant possession of some other premises which are equally suitable and chooses to let them out on higher rent then it may be arguable that the need of the landlord, made out in the eviction petition, was not reasonable or in good faith. However, section 11(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 provides specifically, in Explanation-II, that even though a landlord may have two or more premises which have been let out, it is for the landlord to choose which one would be preferable to him or her and the tenant could not question such preference. In this case, the appellant had indicated a preference for the flat occupied by the respondent. She had given reason why she preferred this flat. She was an old lady. She, therefore, could not climb to the first floor and thus the two flats on the first floor were not suitable to her. The other flat on the southern side of this building faced a road which was a very busy road and would, therefore, be noisy. This particular flat faced the bungalow in which she has been residing for so many years and also faced an open piece of land belonging to her husband. Explanation-II to section 11(1)(c) permitted the landlord to ignore other premises and to prefer a particular premises. The appellant having made a preference cannot be forced to occupy other premises which may become avalable. Further, the appellant was not required to keep those premises vacant because her eviction suit was pending, nor was there any duty cast on the appellant, under any provision of law, to offer those other premises to the respondent. If the respondent had so desired, he could have offered to vacate the flat preferred by the land lady and move into one of those other premises. If the appellant had refused to accept such an offer, it possibly could have been said that the landlady was merely seeking to get vacant possession in order to get higher rent. In that case it could have been inferred that the need of the appellant was not genuine and/or in good faith. No such case has been made out.”
10. Thus, the plaintiff-opposite party could not be forced to occupy other premises as the premises in question, according to her, would meet the reasonable personal need and the said need has been found to be bona fide and in good faith by the trial court on appreciation of evidence.
11. For the reasons aforementioned. I find no merit in this revision application and it is, accordingly, dismissed.
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