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Most. Sushila Devi & Ors. v. Sri Lakhan Lal Sah & Ors.
Structured Summary of the Opinion
Factual and Procedural Background
Plaintiffs (opposite parties) filed a suit for eviction on the ground of personal necessity to open a kirana (grocery) shop in a shop-katra with one room and kitchen (approx. 32' north–south by 16' east–west) situated on Bari Path, Moh: Machhua Toli, Kadam Kuan town. The trial Court decreed the suit by judgment and decree dated 23 June 2001. The tenants/petitioners challenged that decree by filing Civil Revision C.R. 1435 of 2001 under the proviso to Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. This Court partly allowed that revision on 14 February 2003 (reported at 2003 (2) PLJR 345), upholding the trial Court's finding on reasonable and bona fide need but remanding the matter to the trial Court to decide the question of partial eviction in terms of the proviso to Section 11(1)(c) within four months and after giving the parties an opportunity to lead evidence. On remand, despite opportunities, the plaintiffs did not lead evidence; the defendants likewise did not lead evidence when directed. The trial Court ultimately concluded that partial eviction would not meet the plaintiffs' substantial requirement and decreed eviction of the entire premises by order dated 26 June 2003. The tenants/petitioners impugned that order in the present revision application.
Legal Issues Presented
- Whether the trial Court considered the question of partial eviction in terms of the proviso to Section 11(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, as directed by this Court.
- Whether the trial Court properly determined, on the basis of evidence, the landlord's reasonable requirement and whether that reasonable requirement would be substantially (not fully) satisfied by partial eviction.
- Whether the trial Court erred in inferring that the defendants were not agreeable to partial occupation and in using that inference to refuse partial eviction.
- Whether this Court in revision under the proviso to Section 14(8) should interfere with the trial Court's findings on partial eviction (i.e., the scope of interference: perverse, unreasonable or contrary to law).
Arguments of the Parties
Plaintiffs / Opposite Parties
- Asserted personal necessity to occupy the premises for running a kirana shop (ground for eviction).
- No specific evidence regarding the precise extent of accommodation required (the opinion records that plaintiffs did not lead specific evidence about their actual requirement on remand).
Defendants / Tenants / Petitioners
- Contended that the trial Court erroneously recorded that they were not agreeable to partial occupation; they in fact were agreeable to partial occupation.
- Submitted that a partition of the premises (for example, half-and-half) would satisfy the plaintiffs' reasonable requirement for a kirana shop while enabling the tenants to continue running a hotel business in the remaining portion.
- Argued that the trial Court failed to properly determine (on evidence) the reasonable requirement of the plaintiffs and whether partial eviction would substantially satisfy that requirement, and therefore misdirected itself in law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nasirul Haque v. Jitendra Nath Dey, (1984) 4 SCC 498 (AIR 1984 SC 1799) | Explains the test under the proviso to the corresponding provision (S.12(1)(c) of the 1977 Act): (a) court must determine objectively the extent reasonably required by the landlord; and (b) determine whether that reasonable requirement would be substantially (not fully) satisfied by partial eviction. | The Court relied on this authority to state the correct approach to partial eviction under Section 11(1)(c) proviso: determine objectively the reasonable extent and then test whether partial eviction would substantially satisfy that requirement. |
| Krishna Murari Prasad v. Mitar Singh, 1994 (1) PLJR SC 87 | Holds that eviction from the entire premises can be ordered only if a decree for partial eviction (as provided) cannot substantially satisfy the landlord's requirement. | Used to reinforce the principle that complete eviction is permissible only after concluding that partial eviction cannot substantially meet the landlord's reasonable requirement. |
| Rahman Jeo Wangnoo v. Ramchand, (1978) 3 SCC 539 (AIR 1978 SC 413) | Establishes that the proviso requires the court to consider partial eviction even in the absence of specific pleading; absence of pleading does not relieve the court of this statutory obligation. | Cited to support the proposition that the trial Court was statutorily mandated to consider partial eviction irrespective of the parties' pleadings. |
| Order of this Court reported as 2003 (2) PLJR 345 (Civil Revision C.R. 1435 of 2001) | This Court in an earlier round upheld the finding of reasonable and bona fide requirement by plaintiffs but remanded to trial Court to decide partial eviction in terms of the proviso to Section 11(1)(c) and to do so within four months. | Functioned as part of the procedural history and provided the directive to the trial Court to specifically address partial eviction; the present Court applied and enforced that remand-direction in reviewing the subsequent trial Court order. |
Court's Reasoning and Analysis
The Court proceeded in stages, strictly following the statutory scheme and precedent cited in the opinion:
- Scope of Revision: The revision application is under the proviso to Section 14(8) of the Act. The Court observed that the power under that proviso is broader than the revisional jurisdiction under the Code of Civil Procedure but is not equivalent to appellate power. Consequently, interference with trial Court findings is warranted only if they are perverse, unreasonable, or contrary to law—specifically where the trial Court overlooked material evidence, relied on inadmissible evidence affecting merits, or failed to apply the legal principles governing eviction/partial eviction.
- Finality of Requirement Finding: The Court noted that its earlier judgment had already upheld the trial Court's finding that the premises were required by plaintiffs reasonably and in good faith; that finding is final. Therefore the present review is limited to whether the trial Court properly considered partial eviction under the proviso to Section 11(1)(c).
- Statutory Test Under Section 11(1)(c) Proviso: The Court quoted the proviso and summarized the legal test: (a) determine whether the landlord's reasonable requirement can be substantially (not fully) satisfied by evicting only part of the building; (b) ascertain the tenant's agreement to continue occupying the remaining part; and (c) if partial eviction substantially satisfies the requirement and the tenant agrees, pass a decree for partial eviction and fix proportionate fair rent.
- Precedent Guidance: The Court reviewed relevant Supreme Court authority (Nasirul Haque; Krishna Murari Prasad) to emphasize that the process requires an objective determination of the extent reasonably required and an assessment of whether partial eviction would substantially satisfy that need.
- Assessment of Trial Court Record: The Court examined the trial Court's findings and the evidence it considered (P.W.1, P.W.2, P.W.4 and their exhibits; D.W.3 and D.W.4). The trial Court had determined physical measurements and room configuration (including an 18'×16' front room and an approx. 10'×16' back room), found that plaintiffs did not lead evidence as to actual requirement, and then itself assessed that 12'×30' (12' east–west by 30' north–south) would be necessary for running a kirana shop leaving about 4'×30' for the defendant's hotel; the trial Court concluded such partial eviction would be highly inconvenient to the defendants and also recorded that defendants were not agreeable to partial occupation.
- Identification of Error: The Court found legal error in the trial Court's approach: it failed to properly decide (on evidence) two central questions—what was the plaintiffs' reasonable requirement to run the kirana shop and whether that reasonable requirement would be substantially satisfied by partial eviction. The trial Court had effectively made these determinations without adequate evidentiary basis and had misdirected by relying on an erroneous factual conclusion that defendants were not agreeable to partial eviction.
- Resulting Disposition: Because the trial Court did not apply the required legal tests as articulated in statute and precedent and because it misdirected itself on material questions, the appellate/revisional court concluded interference was warranted.
Holding and Implications
Holding: The impugned judgment and decree of the trial Court (dated 26 June 2003) are set aside and the matter is remitted to the trial Court to consider afresh the question of partial eviction in the light of the observations and the statutory proviso to Section 11(1)(c).
Implications:
- The trial Court is required on remand to objectively determine, on the basis of evidence, the extent reasonably required by the plaintiffs for running the kirana shop and then to decide whether that reasonable requirement would be substantially satisfied by partial eviction (and whether the tenant agrees to continue occupation of the remaining portion), applying the tests set out in the proviso and the cited precedents.
- The decision directly affects only the parties to this litigation by setting aside the earlier whole-premises eviction decree and compelling a fresh consideration of partial eviction under the statutory framework.
- The opinion applies and reiterates existing precedent and statutory law; it does not purport to lay down a new legal principle beyond those cited authorities.
This summary is strictly limited to and based exclusively on the information contained in the provided opinion.
1. This is the second round of litigation before this Court at the instance of the tenant-petitioners.
2. The plaintiffs/opposite parties filed a suit for eviction on the ground of personal necessity (for opening a Kirana shop) in the suit premises which is a shop katra with one room and kitchen measuring about 32′ north to south and about 16′ east to west facing north of Bari Path situated at Moh: Machhua Toli, P.S Kadam Kuan town, bearing part of Holding No. 13210 C. 109, Circle No. 29, Ward No. 17/12. The suit was decreed by judgment and decree dated 23rd June 2001 by the trial Court. The said judgment and decree was challenged by the tenant/petitioners by filing civil revision application being C.R 1435 of 2001 under proviso to Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the Act). The said civil revision application was allowed in part on 14.2.2003 [Reported in 2003 (2) PLJR 345]. This Court upheld the finding of the trial court with regard to reasonable and bonafide need of the plaintiffs opposite parties for eviction but remanded the matter to the trial Court to decide the question of partial eviction in terms of proviso to Section 11(1)(c) of the Act as the trial Court had not considered the said question in accordance with law. This Court directed that trial Court to decide the matter within four months after giving an opportunity of hearing to the parties if they want to lead evidence. Inspite of opportunities having been given, the plaintiffs/opposite parties did not lead evidence and took time on one or the other ground as mentioned in the order of the court below. Thereafter, the Court below directed the defendants/tenants/petitioners to lead evidence, though little time was left for them to lead evidence in view of time frame fixed by this Court, but they also did not lead evidence on the ground that the plaintiffs/opposite parties have not lead any evidence. Thereafter, the trial Court held that the partial eviction will not meet the substantial requirement of the landlord/plaintiff/opposite parties and accordingly decreed the suit for eviction for the entire suit premises by the order dated 26th June, 2003 which has been impugned in this civil revision application.
3. The Revision application has been filed under proviso to Section 14(8) of the Act which empowers this Court to satisfy itself whether the order passed by the Court is according to law or not. The power conferred to this Court under the aforesaid provision is wider than the revisional power conferred under the Code of Civil Procedure, but the same cannot be equated with the appellate power. To satisfy as to whether the order is according to law or not, the Court will interfere with the finding of the trial Court only, if the finding is perverse, unreasonable or is contrary to law in the sense that while deciding the matter, the Court has either overlooked the material evidence or has relied upon inadmissible evidence affecting the merits of the case or has not addressed itself to the legal principles governing grant of eviction/partial eviction.
4. As already stated, the finding of the trial Court that the premises was required by the plaintiffs/opposite parties reasonably and in good faith has been upheld by this court and the same has attained finality. The question for consideration is only as to whether the question of partial eviction has been considered in terms of the proviso to Section 11(1)(c) and in the light of the observations made earlier by this Court.
5. To appreciate the point, it is necessary to quote Section 11(1)(c) along with proviso which runs as follows.
“(c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord:
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 henceforth constitute the building within the meaning of clause (b) of section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5;”
6. According to the proviso the Court has to consider the question as to whether the reasonable requirement of the landlord will be satisfied substantially (not fully) by evicting the tenant from the part of the building and permitting the tenant to continue occupation of the rest and the tenant agrees to such occupation. In case the Court finds that the requirement of the landlord will be substantially satisfied by partial eviction and the tenant agrees, the Court will pass a decree accordingly and fix proportionately fair rent as provided under the aforesaid provision.
7. A similar provision under the Act of 1977 was considered by the Supreme Court in the case of Nasirul Haque v. Jitendra Nath Dey., reported in (1984) 4 SCC 498 : AIR 1984 Supreme Court 1799 (2) wherein it was held as follows:
“In determining the question of partial eviction the proviso to S. 12(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act of 1977, in terms enjoins that what is necessary to be considered is the ‘reasonable’ requirement of the landlord and whether it would be ‘substantially’ satisfied by evicting the tenant from a part only of the premises. The court has therefore in the first instance to determine the extent of the premises which the landlord ‘reasonably’ requires. Determine it objectively and not on the basis of his ipse dixit or his mere desire to occupy as much as he wants. But the Court has to, furthermore apply a test as to whether such requirement, as the court considers reasonable, will be ‘substantially’ satisfied (not fully satisfied) by ordering partial eviction. The question, thus, has to be determined by giving full effect to the concept of reasonable extent of the requirement from the perspective of ‘substantial’ satisfaction of such requirement as considered to be reasonable objectively.”
8. Again in the case of Krishna Murari Prasad v. Mitar Singh., reported in 1994 (1) PLJR SC 87 the Apex Court dealing with the aforesaid proviso held that the order of eviction from the entire premises could be made only if a decree for partial eviction in the manner provided could not substantially satisfy the landlord's requirement.
9. Thus, according to the settled law, the Court while considering the partial eviction has to consider firstly the extent of the premises and then to consider the reasonable requirement of the landlord which has to be determined on the basis of the evidence on record and not on the basis of mere desire or wish of the landlord and thereafter the Court has to consider as to whether the said reasonable requirement would be satisfied substantially and not fully by partial eviction.
10. It is well settled that the proviso to Section 11(1)(c) of the Act mandates the Court to decide the question of partial eviction. Even the absence of pleading does not stand in the way of the obligation cast on the Court to act in compliance with the requirement of the statutory provision. (See Rahman Jeo Wangnoo v. Ramchand, reported in (1978) 3 SCC 539 : AIR 1978 SC 413).
11. From perusal of the judgment of the Court below it appears that the Court has considered the evidence of P.W 1 Vijay Kumar (Plaintiff No. 3), P.W 2 Lakhan Sao (Plaintiff No. 1) and P.W 4 Raj Kishore Prasad, advocate and his reports, Ext-1/1 and ½ as well as the evidence of D.W 3 Vinod Kumar and D.W 4 Rameshwar Prasad (defendant No. 1). The Court has determined the extent of the premises and has come to a definite finding that 16′ × 30′ or 32′ space is available in the disputed premises. 16′ situate towards the main road and 30′ or 32′ (approximate) space is available from north to south and there are two rooms as per Exts-1/1 and 1/2; one room measuring 18′ × 16′ in front and back room is 10′ × 16′ approximately. The trial Court has also found that both parties have not led evidence with regard to actual requirement, particularly, the plaintiff has not specifically mentioned about the requirement and thereafter the trial Court himself considered the question and according to it, 12′ east to west and 30′ or 32′ north to south is necessary for running a Kirana shop and the remaining area left is 4′ × 30′ which will be available to the defendant who is running a hotel business and that will not meet the requirement and the defendants have not agreed for such settlement, from which he inferred that they are not agreeable for partial occupation. The trial Court has also held that the partial eviction might satisfy the reasonable requirement of the plaintiffs/opposite parties but it will be highly inconvenient to the defendants, as such the partial eviction is not possible.
12. Learned counsel appearing for the defendants/tenants/petitioner submitted that the Court below has committed an error of record in saying that they are not agreeable to partial occupation of the premises, rather they were agreeable to partial occupation and on the other hand they submitted that if the suit premises is divided half and half, the reasonable requirement of the plaintiffs/opposite parties will be satisfied and the tenants/petitioners will also run a hotel business in the said premises. The plaintiffs required the premises for running a Kirana business as well as the tenants/petitioners was running a hotel in the same since long and they are ready to run hotel business in half of the premises. Even according to the trial Court, the plaintiffs/opposite parties did not mention about the requirement. The trial court did not make any effort to find out as to whether the partition of the premises half and half will meet the substantial requirement of the plaintiffs/opposite parties. In other words, the trial court has committed an error of law in not deciding the second and third questions, namely, as to what is the reasonable requirement of the plaintiffs/opposite parties to run the Kirana Shop and as to whether the said reasonable requirement would be substantially satisfied by partial eviction. The trial Court has misdirected in deciding the said question by wrongly observing that the defendants are not agreeable to the partial eviction. When the court has to decide as to the reasonable requirement of the plaintiffs/opposite parties, it has to consider the evidence on record and not to summarise as has been done in this case.
13. Accordingly, the impugned Judgment passed by the trial Court is set aside and the matter is remitted to the trial court to consider the question afresh in the light of the observation made above.
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