Saluja Spares, Matkuria vs Bhagwan Kelanka

Heard learned counsel for the defendant-petitioner and learned counsel for the plaintiff-opposite party.

The defendant-petitioner is aggrieved by the impugned Judgment and Decree dated 16.08.2016, passed by learned Civil Judge, Junior Div.-I, Dhanbad, in Title Eviction Suit No.34 of 2006, whereby the eviction suit filed under the provisions of Bihar Buildings (Lease Rent and Eviction) Control Act, for eviction of the defendant from the suit premises, on the ground of personal necessity, has been decreed by the Trial Court below, on contest.

The impugned Judgment shows that the suit was decreed giving a finding that there was landlord and tenant relationship between the plaintiff and the defendant, and the plaintiff required the shop No.3, i.e., the suit property, for the bonafide personal necessity of commencing business for his daughter, who was residing with him for the last eight years, since she had been forced to leave her matrimonial home.

Though the impugned Judgment shows that the relationship of landlord and tenant was denied by the defendant petitioner, but on the basis of the evidence brought on record, this issue has been decided in favour of the plaintiff. Suffice would be to say that the defendant, who was disputing the relationship of landlord and tenant between the plaintiff and himself, had filed his evidence on affidavit, as DW-2 in the Court below, but he never appeared for his cross-examination and accordingly, his evidence had to be struck off. On the basis of the evidence of the plaintiff, who was also cross-examined, finding about the landlord and tenant relationship, has been recorded by the Trial Court below.

The main contention of the learned counsel for the defendant petitioner is that adjacent to shop No.3, from which, the eviction of the defendant petitioner was sought in the eviction suit, there is also a shop No.4 belonging to the plaintiff, and it has come in the Judgment that the said shop was got registered by the plaintiff in an execution case and the same was vacated through Court in the month of August 2008. Learned counsel for the defendant petitioner has submitted that since the adjacent shop was vacant, there was no personal necessity for shop No.3, which was in occupation of the defendant petitioner, and accordingly, the impugned Judgment and Decree of eviction passed against him, cannot be sustained in the eyes of law.

As such, the only question that remains to be decided in this revision, is whether the defendant had been able to prove that shop No.4 was belonging to the plaintiff, which was said to be vacated in the month of August 2008, and was still vacant on the date of Judgment and Decree or not.

Learned counsel for the plaintiff opposite party has pointed out from the written statement filed by the defendant petitioner in the Suit, wherein, there is no whisper in the entire written statement that shop No.4, adjacent to shop No.3, was belonging to the plaintiff and was lying vacant. Even in his evidence on affidavit, which the defendant had filed in the Court below, there is no whisper about the same, and the fact remains that he never appeared for his cross-examination and his evidence could not be taken into consideration. The fact about the shop No.4 has come only in the cross-examination of the plaintiff, wherein to the question put to the plaintiff, he has admitted that the said shop was vacated through the Court in the month of August 2008. Thereafter, there is neither any pleading, nor any evidence to show that the shop was still vacant on the date of the impugned Judgment and Decree. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment and decree, evicting the defendant petitioner from the shop in question on the ground of personal necessity, as it has come in the evidence that the said shop was required for the bonfide requirement of running business by the daughter of the plaintiff, who was residing with him.

Having heard learned counsels for the parties and upon going through the materials on record, I find that the fact that there was also a shop No.4, which was vacated through Court in the month of August 2008, has come only in the cross-examination of the plaintiff. The defendant petitioner had filed his written statement, and subsequently, he filed his evidence on affidavit on 15.5.2010, but neither in his written statement, nor in his evidence, he has stated anything about the said shop No.4. Indeed the evidence of the defendant could not be taken into consideration due to the fact that he had not made himself available for his cross-examination, but had it been the fact that the shop No.4 was belonging to the plaintiff, and still lying vacant, that fact must have been stated by him in his pleadings and evidence. There is no such pleading, or evidence, in the entire record to show that shop No.4 also belonged to the plaintiff, which was lying vacant during the pendency of suit, or on the date of Judgment and Decree. In absence, of any such pleading, the question put to the plaintiff in his cross-examination about shop No.4, ought not have been allowed by the Court below.

As such, in the facts of this case, I find that the defendant petitioner had failed, either to plead or to prove the fact, that shop No.4 was belonging to the plaintiff, which was lying vacant during the pendency of the suit, or on the date of impugned Judgment and Decree.

Accordingly, I do not find any illegality in the impugned Judgment and Decree dated 16th August 2016, passed by the learned Civil Judge, Junior Div.-I, Dhanbad, in Title Eviction Suit No.34 of 2006, decreeing the suit, giving the finding that the suit property was required by the plaintiff landlord for the bonafide personal necessity for running business by his daughter, living with him for the last eight years, worth any interference in exercise of revisional jurisdiction.

There is no merit in this revision and the same is accordingly, dismissed.