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Arjun Dayal Jaiswal v/s Anil Kumar

    Civil Revision 1684 Of 2004

    Decided On, 13 April 2006

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH

    For the Appearing Parties: ------------



Judgment Text

NAVANITI PRASAD SINGH, J.

(1.) This civil revision application under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act by the tenant who has been ordered to be evicted from a shop premises measuring 10 feet / 7 feet on the ground of bonafide personal necessity of the landlord as envisaged under Section 11(C) of the Act. The Trial Court has considered in detail the evidences and come to a clear finding that the bonafide necessity of the plaintiff-landlord has been established as by law required and he has considered the question of partial eviction and taken into account the nature of business that the plaintiff intends and the area of the premises in question held that partial eviction will not subserve the purpose of the plaintiff. Thus the suit was decreed. There be(sic)no appeal provided under the Act, the present revision application in terms of Section 14(8) of the Act has been filed.

(2.) Sri Parmeshwar Prasad, learned senior counsel appearing on behalf of the tenant-petitioner has primarily raised, three issues:

(i) In. a proceeding instituted earlier by the father of the plaintiff for eviction of the petitioner on ground of personal necessity of setting up plaintiff in business having been rejected, applying principles of res judicata the present: suit would be barred. (ii) The Plaintiff-Opposite Party ha

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d a vacant shop at the time when the present suit was filed which could be occupied for his business but in stead he let it out on rent and choose to take this proceeding against the petitioner which establishes that, infact, the attempt was only to vacate and thus the plea of bonafide necessity was fanciful and bogus, (iii) The Court has not correctly appreciated and applied the concept of partial eviction.

(3.) The submission of the, learned Counsel is that in view of the aforesaid the suit ought to have been dismissed, if not the petitioner ought to be only partially evicted.

(4.) On the other hand learned Counsel appearing for the landlord has submitted that when the father had filed the suit for eviction in the year 1987 for setting him up in business he was only about 24 years unmarried but now he is about 34 years married with children and has his own requirements to carry on business independently. Relying on AIR 1988 Supreme Court page 1349, it is submitted that the principles of res judicata will not apply as it is well settled that the requirements is to be judged on the day when the application is made and the law is not that once it is held that there is no personal necessity thus never in future can that be. a ground for eviction.

(5.) Secondly, it is submitted that so far as putting a vacant. shop on rent prior to filing of suit is concerned the issue cannot be raised inasmuch as the plaintiff who appeared as his own witness was not. questioned in this regard nor, any evidence led in this regard by the defendant tenant and that being so this question of fact, not having been established or solicited through evidence cannot be a ground and lastly so far as the partial eviction is concerned the very measure of the shop being 10 feet by 7 feet shows that any division thereof would make it inadequate for his cloth business.

(6.) Having considered the. various submissions I find that the revision application is fit to be dismissed on merits, The facts are not in dispute. The father of the plaintiff had filed a eviction suit in the year 1986 being Eviction Suit No. 36 of 1986. One of the grounds was of personal necessity for setting up his own son in a separate business, this was not accepted by the trial Court which led to dismiss the suit by judgement dated 18.7.1987 and the same was not interfered with and the appeal was dismissed on 7.7.1989. It is almost 10 years thereafter that a partition suit was filed in which the parties compromised and on the basis of compromise decree properties belonging to family of the plaintiff was partitioned in the year 1998. It is now not in dispute that the plaintiff was allotted separate share and he was alloted two shops one of which is occupied by the petitioner. In view of this it is wrong to submit or suggest that partition was a devise to get over the earlier judgment and seek eviction, there was a gap of almost 10 years between the two proceedings.

(7.) Principles of res judicata clearly predicates that parties must be the same and the issues must be the same. In the case like present, parties are different, issues are different. Earlier it was the father intending to set up his own son in business and now the said son having grown up in the last ten years and having separated, wanting to set up his own independent business. Moreover as has been held by the Apex Court in AIR 1988 Supreme Court 1349 paragraph 8 that in such cases the principles of res judicata has no application as the need has to be judged on the day when applications for eviction are filed, the needs may change, situations may change. A decision once rendered on personal necessity cannot bind the parties ad infinitum. In view of the aforesaid the first submission of Mr. Parmeshwar Prasad cannot be accepted.

(8.) So far as the second submissions with regard to the premises being vacant is concerned I have perused the evidence and in particular the deposition of the plaintiff who had. examined himself as his witness in which no suggestion was made to him in his cross examination of the fact that there was another premises vacant shop adjacent which had been let out when the suit was filed. No further evidence to support this has been brought on record. In absence of any evidence in support of the assertion the said ground cannot be permitted to be agitated and I reject accordingly.

(9.) Lastly coming to the question of partial eviction the trial Court has considered the fact that the shop premises is only 10 feet by 7 feet. The landlord-plaintiff intends to set up a cloth shop. He was earlier working with his father. He now has separated. On his behalf it is submitted that if a shop of 10 feet by 7 feet is cut by half in either way it will become useless for his business. Equities have to be balanced, the tenant is not to survive at the cost of the landlord only and the tenant can be evicted from the premises of the landlord. Here in the present case the very purpose of eviction fail if partial eviction is ordered. Therefore, I am of the opinion that the trial court rightly decided that issue against the petitioner-tenant.

(10.) However, I may point out that in case, the landlord does not himself occupy the premises or let. out the premises in contravention to the provisions of Section 17 of the Act, the petitioner will be at liberty to take suitable steps as envisaged under Section 17 of the Act.

(11.) Thus in view of the findings above this application is dismissed but no order as to costs.

1. This civil revision application under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act by the tenant who has been ordered to be evicted from a shop premises measuring 10 feet / 7 feet on the ground of bonafide personal necessity of the landlord as envisaged under Section 11(C) of the Act. The Trial Court has considered in detail the evidences and come to a clear finding that the bonafide necessity of the plaintiff-landlord has been established as by law required and he has considered the question of partial eviction and taken into account the nature of business that the plaintiff intends and the area of the premises in question held that partial eviction will not subserve the purpose of the plaintiff. Thus the suit was decreed. There be(sic)no appeal provided under the Act, the present revision application in terms of Section 14(8) of the Act has been filed.

2. Sri Parmeshwar Prasad, learned senior counsel appearing on behalf of the tenant-petitioner has primarily raised, three issues: (i) In. a proceeding instituted earlier by the father of the plaintiff for eviction of the petitioner on ground of personal necessity of setting up plaintiff in business having been rejected, applying principles of res judicata the present: suit would be barred. (ii) The Plaintiff-Opposite Party had a vacant shop at the time when the present suit was filed which could be occupied for his business but in stead he let it out on rent and choose to take this proceeding against the petitioner which establishes that, infact, the attempt was only to vacate and thus the plea of bonafide necessity was fanciful and bogus, (iii) The Court has not correctly appreciated and applied the concept of partial eviction.

3. The submission of the, learned Counsel is that in view of the aforesaid the suit ought to have been dismissed, if not the petitioner ought to be only partially evicted.

4. On the other hand learned Counsel appearing for the landlord has submitted that when the father had filed the suit for eviction in the year 1987 for setting him up in business he was only about 24 years unmarried but now he is about 34 years married with children and has his own requirements to carry on business independently. Relying on AIR 1988 Supreme Court page 1349, it is submitted that the principles of res judicata will not apply as it is well settled that the requirements is to be judged on the day when the application is made and the law is not that once it is held that there is no personal necessity thus never in future can that be. a ground for eviction.

5. Secondly, it is submitted that so far as putting a vacant. shop on rent prior to filing of suit is concerned the issue cannot be raised inasmuch as the plaintiff who appeared as his own witness was not. questioned in this regard nor, any evidence led in this regard by the defendant tenant and that being so this question of fact, not having been established or solicited through evidence cannot be a ground and lastly so far as the partial eviction is concerned the very measure of the shop being 10 feet by 7 feet shows that any division thereof would make it inadequate for his cloth business.

6. Having considered the. various submissions I find that the revision application is fit to be dismissed on merits, The facts are not in dispute. The father of the plaintiff had filed a eviction suit in the year 1986 being Eviction Suit No. 36 of 1986. One of the grounds was of personal necessity for setting up his own son in a separate business, this was not accepted by the trial Court which led to dismiss the suit by judgement dated 18.7.1987 and the same was not interfered with and the appeal was dismissed on 7.7.1989. It is almost 10 years thereafter that a partition suit was filed in which the parties compromised and on the basis of compromise decree properties belonging to family of the plaintiff was partitioned in the year 1998. It is now not in dispute that the plaintiff was allotted separate share and he was alloted two shops one of which is occupied by the petitioner. In view of this it is wrong to submit or suggest that partition was a devise to get over the earlier judgment and seek eviction, there was a gap of almost 10 years between the two proceedings.

7. Principles of res judicata clearly predicates that parties must be the same and the issues must be the same. In the case like present, parties are different, issues are different. Earlier it was the father intending to set up his own son in business and now the said son having grown up in the last ten years and having separated, wanting to set up his own independent business. Moreover as has been held by the Apex Court in AIR 1988 Supreme Court 1349 paragraph 8 that in such cases the principles of res judicata has no application as the need has to be judged on the day when applications for eviction are filed, the needs may change, situations may change. A decision once rendered on personal necessity cannot bind the parties ad infinitum. In view of the aforesaid the first submission of Mr. Parmeshwar Prasad cannot be accepted.

8. So far as the second submissions with regard to the premises being vacant is concerned I have perused the evidence and in particular the deposition of the plaintiff who had. examined himself as his witness in which no suggestion was made to him in his cross examination of the fact that there was another premises vacant shop adjacent which had been let out when the suit was filed. No further evidence to support this has been brought on record. In absence of any evidence in support of the assertion the said ground cannot be permitted to be agitated and I reject accordingly.

9. Lastly coming to the question of partial eviction the trial Court has considered the fact that the shop premises is only 10 feet by 7 feet. The landlord-plaintiff intends to set up a cloth shop. He was earlier working with his father. He now has separated. On his behalf it is submitted that if a shop of 10 feet by 7 feet is cut by half in either way it will become useless for his business. Equities have to be balanced, the tenant is not to survive at the cost of the landlord only and the tenant can be evicted from the premises of the landlord. Here in the present case the very purpose of eviction fail if partial eviction is ordered. Therefore, I am of the opinion that the trial court rightly decided that issue against the petitioner-tenant.

10. However, I may point out that in case, the landlord does not himself occupy the premises or let. out the premises in contravention to the provisions of Section 17 of the Act, the petitioner will be at liberty to take suitable steps as envisaged under Section 17 of the Act. Thus in view of the findings above this application is dismissed but no order as to costs
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