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2003 Supreme(Pat) 929
PATNA HIGH COURT
S.K.Katriar, J.
Bhimsen Gupta
Versus
Bishwanath Prasad Gupta
Appeal from Appellate Decree No. 420 of 2000 ;
Decided On : SEPTEMBER 01, 2003
Headnote:Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982-Section 11 (1)(d)Eviction on the ground of default in payment of rent-Landlord is entitled for a decree of eviction on the ground of default in payment of rent for two months, even though the same falls beyond the period of three years prior to the date of institution of the suit, and are not consecutive. (Para 9)
1989 PUR 587; 1991(2) PLJR 373; 1999(3) PLJR 596-Relied on.
1985 PUR 923-Distinguished.
Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982-Section 15-Payment of rent during pendency of eviction suit-Payment of rent during pendency of eviction suit is a protection to the landlord to ensure that he continues to get rent during pendency of the suit and has nothing to do with the grounds of eviction and default in payment thereof is within the mischief of Section 11 (1)(d)-Tenant is liable for eviction on the ground of default in payment of rent during pendency of the eviction suit. (Paras 10 to 12)
2000(1) PLJR 975-Relied on.
AIR 1989 SC 920-Distinguished.
Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982-Section 11 (1)(c)Eviction for personal necessity-Landlords son being unemployed and the shop in question required for his settlement and suitable for opening a kirana shop and is situated in a market area-Requirement not to be fulfilled by partial eviction-Question of partial eviction does not arise and the plaintiff-landlord has a bonafide need for personal necessity. (Para 13)
Code of Civil Procedure, 1908-Section 100-Second Appeal-Substantial question of law-Issues involved in the appeal are issues of fact and no substantial question of law is involved- To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent and must have a material bearing on the decision of the case-Appeal dismissed. (Para 14 & 15)
AIR 2001 SC 965-Relied on.
2003(2) BLJR 1260-Referred to.
S.K.Katriar, J.
1. The defendant is the appellant against a judgment of reversal. This appeal is directed against the judgment and decree dated 16-8-2000, passed by the learned 7th Additional District Judge, Munger, in Munsif Eviction Appeal No. 3/2000/2/2000 (Bishwanath Prasad Gupta V/s. Bhimsen Gupta), whereby he has dcreed the suit for ejectment after setting aside the judgment and decree dated 29-3-2000, passed by the learned Munsif 2nd Court, Munger, in Eviction Suit No. 19/94 (Bishwanath Prasad Gupta V/s. Bhimsen Gupta). The suit for ejectment and consequential relief was dismissed by the trial Court and has been decreed by the learned Court of appeal below. We shall go by the description of the parties occurring in the plaint.
2. The plaintiff instituted the suit for ejectment of the defendant and recovery of possession on the grounds of default in payment of rent as well as personal necessity with respect to the plaintiffs khatal bearing holding No. 210(old), No. 332(new), situate in Mohalla Betwan Bazar, P.S. Kasim Bazar, District Munger. The defendant filed the written statement and contested the-suit. He admitted the relationship of landlord and tenant. However, according to their case, there was no default in payment of rent. Part of the period of alleged default fell beyond a period prior to three years of the date of institution of the suit, and other part of the alleged default fell during the pendency of the suit which was introduced by amendment of the plaint. Their further case was that the plaintiff does not need the suit property bona fide for their personal necessity.
3. On the basis of the pleadings of the parties, the trial Court framed the following issues for consideration:-
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(i) Whether the suit is as framed is maintainable?
(ii) Whether the plaintiff has got sufficient cause of action and right to sue ?
(iii) Whether the relationship of landlord and the tenant exists between the plaintiff and the defendant ?
(iv) Whether the defendant has defaulted in payment of rent ?
(v) Whether the plaintiff has got bonafide personal necessity of the suit premises?
(vi) Whether the suit premises is the most suitable place for kirana shop?
(vii) Whether the plaintiff is entitled to get other relief or reliefs?
4. The parties led evidence in support of their respective cases. The suit was dismissed, The plaintiff appealed which has been allowed by the impugned judgment, that if the trial Court has been set aside, and the suit has been decreed. The learned Court of appeal below has held that the defendant defaulted in payment of rent more than once. He has further held that the plaintiff bona fide needs the suit property on account of his personal necessity, namely, his unemployed son has to start a business. He has also held that the same is too small to allow a viable, partial eviction. He has, therefore, ordered for ejectment of the defendant.
5. While assailing the validity of the impugned judgment, learned counsel for the defendant (appellant) submits that the default in payment of rent for a period prior to three years for institution of the suit cannot be a ground for ejectment in terms of sec. 11 (1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act). He relies on the judgment of a learned Single Judge of this Court reported in 1985 PUR 923 (Nandgopal Prasad V/s. Most. Premlata Devi). He next submits that if the situation is viewed in the proper perspective, there would be no default during the pendency of the suit. He relies on the judgment of the Supreme Court reported in AIR 1989 SC 920 (Rasiklal V/s. Shah Gokuldas). He next submits that the tenants eviction on the ground of personal necessity should not be a ploy to evict the tenant. The plaintiff must establish that he genuinely needs it on account of personal necessity which, in his submission, has not been established in this case.
6. Learned counsel for the plaintiff (respondent) has su
