MAHENDRA SAO Vs. JAGARNATH MISHRA

JUDGEMENT

(1.) This Revision has been preferred by the above named petitioner, who happened to be the defendant in Eviction Suit No. 8 of 1988 before the Munsif at Daltonganj.

(2.) The suit for eviction was filed but the Opposite party-plaintiff for ejectment of the petition-defendant from the suit premises on the ground of bonafide necessity as contemplated under Section 11(1)(c) of the B.B.C. Act. The suit proceeded under Section 14 of the B.B.C. Act. In contesting the suit, the defendant took the plea that the contiguous north shop remained vacant belonging to the plaintiff-Opposite party and as such his son Ajay could have started his business in that adjacent shop room north to the suit premises and as such it was pleaded that there was no bonafide necessity of the plaintiff rather with such plea of necessity, he had filed the suit for ejectment of the defendant-petitioner. From the plaintiffs side, it was contended that the contiguous north room of the said shop house was not vacant but it was given in settlement to one Sashi Bhusan Shukla, who was in occupation of the same. To ascertain that fact, a Pleader Commissioner was appointed and his report was marked as Exhibit and both the Pleader Commissioner and PW-5 had adduced evidence to the effect that the adjacent north shop house was not vacant rather it if was in occupation of others and as such the plaintiff has the bonafide necessity to get the shop house in occupation of the defendants-petitioner be evicted for opening a business for his son, Ajay. In original court, it was held that the plaintiff had the necessity of getting a vacant space for starting business of his son, Ajay, but it was held that the adjacent north shop was vacant at the time of filing of the suit and only to defeat the plea raised on behalf of the defendant-tenant, papers were created showing induction of tenant i.e. one Sashi Bhusan Shukla in that vacant adjacent north shop house, but he has totally disbelieved the story of the plaintiff regarding filing up of the adjacent vacant north shop house through one Sashi Bhusan Shukla and only on that point it was doubted about the bonafide of the plaintiff landlord for the purpose of ejectment of the defendant-tenant. The suit was dismissed. Against that dismissal of the ejectment suit, which proceeded under Section 14 of the B.B.C. Act, a Revision petition was preferred by the plaintiff-landlord in Civil Revision No. 356 of 1989 (R), but the same was returned to plaintiff-Opposite party for filing an appeal before the appropriate forum vide order dated 31.7.1990 basing on a Full Bench decision in Civil Revision No. 45 of 1988(R). Accordingly, the plaintiff-Opposite party filed Eviction Appeal No. 2 of 1990 and the same was heard by 2nd Addl. District Judge, Palamay at Daltonganj, and by the impugned judgment and decree dated 12.12.1994 the appeal was allowed, this Civil Revision has been, preferred by the defendant-petitioners, when appellate court had reversed the finding of dismissal and granted decree of eviction against the defendant-petitioner.

(3.) There was necessity for getting a vacant space for the purpose of running of business of the son of the plaintiff, Ajay Kumar Mishra was maintained by the appellate court also as was done by the learned Munsif, but the appellate court had not reversed the finding the vacancy or otherwise regarding the adjacent north shop house or being up filled up by one Sashi Bhusan Shukla as claimed by the plaintiff-landlord. He has neither set aside the findings of the learned Munsif nor had given any finding as regards the vacancy or otherwise, but the appellate court maintained that this point, was not required to be decided as the option always lies with the landlord to choose as to which shop house is necessary for opening of a business of his son. The appellate court had observed in the following manner: Learned Munsif has unnecessarily made his judgment lengthy and cumber some in discussing the evidence lead by the parties on this point. The defendant-respondent adduced evidence to support his assertion that the plaintiff has a vacant shop room just adjacent norm to the suit shop, which is equally suitable to fulfill his alleged personal necessity. The plaintiff on the other hand, took out a commission to disprove the same and also adduced evidence, oral as well as documentary. The Commissioner (PW-7) found that PW-5 was running his own shop in the room adjacent north to the suit premises. I do not wish to detain myself any longer in discussion of evidence, on this point, when the law is as stated earlier well settled that it is for the landlord to chose between two or more of his premises as to which one would fulfil his personal necessity.