Back
2006 Supreme(Pat) 928
PATNA HIGH COURT
Syed Md.Mahfooz Alam, J.
Bhuvneshwar Pd.Gupta
Versus
Dharmnath Prasad
Appeal From Appellate No. 251 of 1990 ;
Decided On : OCTOBER 12, 2006
Headnote:Code of Civil Procedure, 1908-Section 100-Second Appeal-Appeal against judgment of reversal-Suit for eviction decreed by the trial Court and reversed by the lower appellate court-The High Court sitting in second appeal is not empowered to reappreciate the evidence of the parties in order to take a different view from the view taken by the first appellate Court as the same is final court of fact but the H. C. is entitled to interfere if it is found that the findings of the lower Court are perverse i.e. based on no evidence or impugned appreciation of evidence-In the present case, the reasoning given by the first appellate court for differing with the view of the trial Court regarding the expenditure done on the repair of the suit house is most unsatisfactory and unreasonable-The first appellate court should have differentiated the meaning of repair from alteration and addition-Under law, a tenant is permitted to do minor repairs and cannot be allowed to make alteration and addition in the tenanted house-Findings of the lower appellate court based on no-consideration and improper appreciation of the material evidence on record and are perverse. (Paras 11, 14 and 15)
Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982-Section 9(2)Repair of the building by the tenant-Tenant may carry out the repair work himself at a cost not exceeding one months rent and is permitted to deduct such cost from the rent but he is not permitted to make exorbitant expenditure on repair-If the landlord neglects to carry out repair, House Controller should be approached-No such permission taken from the House Controller to make the huge expenditure and the contesting defendants held not entitled to claim adjustment-Contesting defendants held as defaulter and on that score also the findings of the lower appellate court held perverse-Second appeal allowed-Judgment and decree of lower appellate court set aside and that of the trial Court confirmed-Appellant held entitled to recover arrears with 24% interest. (Paras 17 to 20)
1983 PLJR 390-Referred to.
Syed Md.Mahfooz Alam, J.
1. This second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 10.4.1990 passed by Sri Eric Mechyari, Additional District Judge, Saran, Chapra in Title Appeal No. 4 of 1987 reversing the judgment and decree dated 31.7.1987 passed by Sri Md. Mustaquim, Munsif Ist, Chapra in Eviction Suit No. 19 of 1985 whereby the learned Munsif had decreed the suit of the plaintiff-appellant for eviction of the defendants from the suit premises.
2. The plaintiff is the appellant in this second appeal. The case of the plaintiff, in brief, is that she is the owner of the suit house by virtue of the registered gift dated 14.12.1956 executed by her father-in-law in her favour. The original defendant Nos. 1 and 2 were tenants in the suit house at a monthly rental of Rs. 75.00 . The tenancy was started according to the English Calendar month. The original defendants 1 and 2 were paying rent to the plaintiffs father-in-law but after execution of the gift deed they were paying rent of the suit house to the plaintiff and in token of payment of rent, the plaintiff was granting Sada rent receipts to the original defendant Nos. 1 and 2. The defendant Nos. 3 and 4, who were contesting the suit and are at present respondent Nos. 1 and 2 in this second appeal, are nephews of defendant Nos. 1 and 2. The original defendant Nos. 1 and 2 after constructing their separate house shifted to their respective houses but at the time of vacating the suit house, they sublet the suit house to defendant Nos. 3 and 4 (respondent Nos. 1 and 2). Further case is that defendant Nos. 3 and 4 are residing in the suit house without making payment of rent to the plaintiff and the plaintiff had also never treated them as tenants as they were sub-lessees from the original defendant Nos. 1 and 2. Further case is that the defendants were not paying rent of the suit house for the last four years from the date of filing of the suit and on demand, they failed to pay rent of the suit house to the plaintiff and hence, the plaintiff filed the suit for eviction of the defendants and also for payment of arrears of rent.
3. It appears that inspite of service of notice, the original defendant Nos. 1 and 2 did not appear to contest the suit. Defendant Nos. 3 and 4 appeared in the suit and filed their written statement and contested the suit. At present the original defendant Nos. 3 and 4 are contesting parties and they have been made respondent Nos. 1 and 2 but before this Court they did not appear at the time of argument in this appeal. However, their case is that the original defendant Nos. 1 and 2 were tenants in the suit house at a monthly rental of Rs. 40.00 only but in the year 1975 and 1977 both the defendants constructed their separate house and as such, both the defendants shifted to their respective house. However, the suit house remained in their occupation upto September, 1983 as both the defendants were using the suit house as their godown. Further case is that in the month of September 1983 the original defendant Nos. 1 and 2 vacated the suit house and then defendant No. 3 approached the plaintiffs husband, namely, Bhuvneshwar Prasad Gupta, who agreed to let out the suit house on rent. The plaintiff also agreed to let out the suit house to defendant Nos. 3 and 4 and thereafter the defendant Nos. 3 and 4 (respondent Nos. 1 and 2) were inducted as tenants in the suit house. Further case is that on account of having been used as godown, the suit house had become unfit for residential purpose without repair and as such, defendant No. 3 arrived at an agreement with the husband of the plaintiff to the effect that the repair work would be done by the defendant No. 3 and the cost of repair would be adjusted towards future rent. The rent of the suit house was fixed at Rs. 75.00 per month. Further case of the defendants-respondents is that the plaintiff started making demand of enhanced rent at the rate of Rs. 125.00
