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PETITIONER: SMT. JAHEJO DEVI & ORS. A

       Vs.

RESPONDENT: MOHARAM ALI

DATE OF JUDGMENT09/12/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1988 AIR  411            1988 SCR  (2) 253  1988 SCC  (1) 372        1987 SCALE  (2)1485

ACT:      Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977: S.  72 (  l)-Eviction of tenant-Defalllt in payment of rent-Bona fide need of landlord-Concurrent findings of trial and first appellate court in favour of landlord-Whether open to High Court to interfere in second appeal. C

HEADNOTE: %      The appellants-landlords,  residents of  the  State  of Bihar, carrying on business in Meghalaya, sought eviction of the tenant  from their  suit shop  in Arrah,  Bihar  on  the ground of  default in  payment of  rent as  well as  on  the ground of  bona fide  need, and  for arrears  of rent  under s.12(1) of  the Bihar  Buildings (Lease,  Rent and Eviction) Control Act,  1977. Their  case was  that the tenant had not paid the  rent for  the period  of default  and that  due to disturbances in  Meghalaya  their  business  was  completely disturbed and  some of  the children  of the family, who had grown up,  were sitting  idle. They, therefore, wanted to do their business in the suit shop which laws adjacent to their residential house and there was a connecting door. E      The tenant  took the  plea that  he had sent the money- order to  their village  address,  and  that  there  was  no evidence to  show that there was no other house available to the landlord from which his need could not be met.      The Trial  Court came to the conclusion that the tenant was a  defaulter. He  had full knowledge about the fact that the landlord  and her  family members  did not reside at the said village.  So, even if the rent had been sent that could not be a valid tender. It further found that the case of the landlord about  personal necessity  was proved. The findings of the  trial court were armed by the First Appellate Court. These findings  were, however, reversed by the High Court in second appeal,  which  took  the  view  that  there  was  no evidence on  record to  show that the tenant knew the proper address to  which remittance  could have been made, and that there was no evidence of disturbances in Meghalaya. 254      Allowing the appeal by special leave, ^      HELD: 1.  It was  not open  to the High Court in second

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appeal to interfere with the concurrent findings of facts of the first  two courts  both on default and bona fide need of the landlord. [259D]      2. The respondent-tenant was a habitual defaulter. Even after the  knowledge of  the  proper  address  he  had  been deliberately remit  ting the  rent to a wrong address. There was, therefore, no valid tender. [256A-B]      3. The  appellants-landlords have been living and doing business in Meghalaya where there was disturbance and it was difficult for them to have residence there. They allege that they have  bona fide  reasonable need  of the  suit shop for doing  their   business,  which   was  adjacent   to   their residential house  in Arrah and there was a connecting door. There were  grown up  sons doing  no business.  There was no evidence that  there was  some  vacant  premises  which  the landlord could  conveniently occupy.  The first  two courts, therefore, in  acting on  the basis  of the  reasonable need cannot be said to have committed any such irregularity which could have  been interfered with by the High Court in second appeal. [258E-G]      M.M. Qasim  v. Manohar  Lal Sharma and others, AIR 1981 SC 1113 at page 1121, distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No . 1974 of 1987.      From the  Judgment of order dated 27.2.1987 of the High Court of Patna in S.A. No. 103 of 1983.      Dr.  Shankar   Ghosh,  and   A.K.  Srivastava  for  the Appellants.      B.B. Singh for the Respondent.      The Judgment of the Court was delivered by      SABYASACHI  MUKHARJI,  J.  Special  leave  granted  and Appeal disposed of as follows:           This is  an appeal  against the judgment and order           of the High Court of Patna in second appeal, which           was in respect of evic 255 tion from  of a  premises at  Arrah in  Bihar. This  is  the landlords’ appeal.  The landlord  sued  the  tenant  on  the ground of  default in  payment of  rent, as  well as  on the ground of  bona fide  need and also for arrears of rent. The eviction sought  for was  by a  suit and  the learned  Trial Judge, the  learned Addl.  Munsiff decreed  the suit  on the ground of  default in  the payment of rent as well as on the ground of  bona  fide  need  of  the  landlord.  It  is  not necessary in the view we have taken to set out in detail the grounds and  the findings arrived at by the Trial Court. The Trial Court  came to  the conclusion  that the  tenant was a defaulter and  that the  defendant had  full knowledge about the fact  that the landlord and her family members reside at Meghalaya. The defendant had not paid rent for the period of default i.e. from July 1974 till the date of the suit to the plaintiffs at  their address  in Meghalaya.  It was urged on behalf of  the tenant  that he sent money order to Sonabarsa address. It  was proved  that the  landlord and  her  family members do  not live  at village  Sonabarsa. So  even if the rent had  been sent,  as alleged  by the defendant the Trial Court found  as alleged by the landlord, that could not be a valid tender.  Furthermore, the  learned Addl. Munsiff found that notice  under section  106 of  the Transfer of Property Act had  been given  to the tenant on behalf of the landlord which was dated 12th November, 1977 and it was served on the

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tenant on  29th November,  1977 which  was duly  proved. The acknowledgement of receipt of that thing was also proved. In the notice  it had  been clearly stated that plaintiff No. 3 had been  appointed attorney  by the  owners/plaintiffs  for realising arrears  of rent  and filing  suit. It  is further admitted by the defendant in his evidence that plaintiff No. 3 resides just by the side of the suit premises on the upper floor. In  spite of this the defendant wilfully neglected to pay any  rent to  plaintiff No.  3 from  29.11.77 to 19.4.78 i.e. the  date of  the suit.  Accordingly, the learned Trial judge discussed  the evidence  extensively and  came to  his finding as  aforesaid. This  finding of  the  learned  Trial judge was  affirmed by the learned Subordinate Judge to whom the appeal  was taken.  The learned Subordinate Judge in his judgment analysed  the facts.  He noted  that the tenant has stated in  his written  submission that  he used to send the rent at  Sonabarsa address  though he  got information about the purchase  of the  suit land  by the  respondent after  a great delay.  After discussing  the relevant facts which are more or  less the  same as  discussed by  the learned  Trial judge the learned Subordinate Judge being the First 256      Appellate Court  came to a conclusion that rent was not      paid and  he further  came to  the conclusion that even      after the  knowledge of  the proper  address the tenant      had deliberately remitted the rent at Sonabarsa address      and held that the tender was not valid      Inasmuch as  one of  the grounds  taken in  the  Second Appeal before the High Court was the finding on this ground. The High  Court discussed  this aspect  of the  evidence and reversed the finding. The High Court was of the opinion that the finding  that there  was default in payment of rent from 29th November,  1977 to  10th April, 1978 was erroneous. The High Court  noted that  rent had  been  remitted  for  these months to  Sonabarsa address. The High Court was in error in holding that  there was  valid tender  when in  spite of the knowledge that  Sonabarsa address  was not  the address they remitted rent  to that place. The High Court further went on to say that there was no evidence on record to show that the defendant knew the proper address. In view of the concurrent findings and in view of the letter of the Attorney on behalf of the  landlord this is an erroneous conclusion of the High Court. The  High Court,  further  expressed  the  view  that unless he  knew the  proper address no remittance could have been made  to that  address. In  our opinion,  there was  no logic in  the finding  of the  High Court that the defendant was justified  guilty in  sending rent  to Sonabarsa address and there was valid tender. The High Court, therefore was in error in  not holding  that the  respondent was  a  habitual defaulter. The other ground was the ground of bona fide need of the  landlord. So  far as  the  bona  fide  need  of  the landlord was concerned the learned Trial judge discussed the matter and  it was  admitted that the plaintiff-landlord did business in  Meghalaya,  Assam,  and  their  occupation  was business. The  defendant had  not produced any document that plaintiffs had another house and land except the suit house. This was  an averment  and assertion of the landlord. In the premises, the  learned Trial  Court came  to the  conclusion that the  landlord had  got only one house. The suit shop is attached with  the Janani  Kita of  the Plaintiffs, which is the house of the landlord. The case of the landlord was that they were  residents of  the  State  of  Bihar  and  due  to disturbance  in  Assam  and  Meghalaya  their  business  was completely disturbed, and it was not possible for them to do their  business   there,  which   was  the  only  source  of

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maintenance of  their family members. The Plaintiffs’ family and some  of the children of the Plaintiffs family had grown up and  were sitting  idle according  to the landlord. Hence the plaintiffs  wanted to  do their business at Arrah in the suit shop. The suit shop admittedly, it was 257 found, was situated on the main road and it was suitable for the business  and it  was  connected  with  the  residential portion  of   the  landlord  through  a  door.  Under  those circumstances the  landlord alleged  that she  had bone fide reasonable need  of the  Slit shop for doing their business. The case  of the  landlord regarding  personal necessity was found to  be conclusively  proved by  several  witnesses  as noted by  the learned  Trial judge.  The learned Trial judge also found that there was disturbance in Assam and Meghalaya and it  was difficult  to have  residence in  another State. This fact according to the learned trial judge was proved by plaintiffs’ witnesses.  It was  also proved by the admission of the  Plaintiff No.  9 in paragraph 11 and Plaintiff No. 6 in paragraph  2 in  support of  the case  of  the  plaintiff regarding personal  necessity. On the basis of the aforesaid evidence the  learned Trial judge found that the case of the landlord about  personal necessity  was proved. On the same, this finding  was affirmed  by the  First Appellate Court as follows:           "The  second   question  is  whether  there  is  a           personal requirement  of the  suit  house  by  the           respondent. In  the W.S. vide para-9 the appellant           has stated  that the  plaintiff Nos.  1 and 2 have           got a  prosperous business  in Meghalaya.  In  his           evidence the  appellant (D.W.  9 vide  para 9) has           stated that agitation is going on in Assam and the           Assamese are  driving out  the citizens  of  other           States from  Assam. While  the arguments  in  this           appeal were  being heard  the learned  counsel for           the respondent  argued that the condition in Assam           has  further   deteriorated  and   it  has  become           inhabitable for  the residents of other states. He           submitted  that   the  judicial   notice  of  this           development  can  be  taken  of  because  of  this           provides strength  to the  original contention  of           the plaintiff. He relied on a decision reported in           1981 B.B.C.J.  S.C.  165.  From  the  evidence  of           appellant himself  it is  clear that  the Biharies           better say  not Assamies are being driven out from           Assam. It  is fact then definitely the requirement           of the  suit house by the respondent is reasonable           and  bona   fide,  because  they  will  definitely           require the  suit house  for their  maintenance at           Arrah. Moreover  the defendant  D.W.9 vide  para 8           has also  admitted that  the many  persons in  the           respondent’s  family   have   attained   majority.           Naturally these  major members  of the  family, in           the aforesaid background, require for the family a           place to  settle themselves  in business.  It  has           been  argued   that  some   other  shops   of  the           respondents are  vacant, and so the requirement of           the suit 258           house is  not bona  fide. What shop is suited best           to the interest of the respondent is a prerogative           of the  landlord and the tenant can’t question his           choice. Therefore,  even if some houses are vacant           since the  family of  the  respondent  has  become           large and  the members  have become major then the

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         requirement of  the suit  house is  bona fide  and           reasonable. I  have also  gone  through  the  oral           evidence  adduced   from  both   the  sides   very           carefully and  also considered  the effect of each           of the  documents proved  by both  the  sides  and           their bearing on the merit of the suit. "      As mentioned  hereinbefore being  aggrieved thereby the appellants went  up in  Second Appeal before the High Court. The High  Court on this aspect was of the view that personal necessity was  not proved.  According to  the High Court the said findings  were based  on conjectures. The High Court by its reasoning  stated that  the plaintiffs were not in Assam and there  was no such evidence of disturbance or failure in Meghalaya from  which it  could be  proved that  people from Bihar could  feel apprehensive.  The High  Court  held  that there was  no evidence  of any  movement  in  the  State  of Meghalaya nor  were there any evidence that Biharis had been driven out  from that  State. Firstly, it appears to us that on the  basis of the evidence that the first two courts have acted, it  was not  open to the High Court to interfere in a matter like  this in  Second Appeal.  Be that  as it may the need, it  appears, was  reasonable. The  landlords  are  not living in  Assam. They  are living  and  carrying  on  their business in  Meghalaya. The plaintiffs allege that they have bona fide  reasonable need  of the suit shop for doing their business, which  was adjacent  to the  residential house and there was a connected door. There are grown up sons doing no business. In  that view of the matter if the Trial court and the first  appellate Court  had acted  on the  basis of  the reasonable need,  this cannot  be said  that the courts have committed  any  such  irregularity  which  could  have  been interfered with  by the  High Court in second appeal. In our opinion, the  High Court was unjustified in interfering with the concurrent  findings of  facts. Section  12(1)(c) of the Bihar Buildings  (Lease, Rent and Eviction) Control Act 1977 provided for partial eviction in certain circumstances.      Learned counsel for the respondent submitted to us that in this case there was no evidence to show that there was no other house available to the landlord from which the need of the landlord  could not  be met.  He drew  our attention  to certain observations  of this  Court in M.M.Qasim v. Manohar Lal Sharma and others AIR 1981 259 SC 1113 at page 1121 to the following effect:           "When examining a case of personal requirement, if           it is  pointed  out  that  there  is  some  vacant           premises  with   the   landlord   which   he   can           conveniently occupy,  the element  of need  in his           requirement would be absent. To reject this aspect           by saying  that the  landlord  has  an  unfettered           right to  choose the  premises is  to negative the           very raison d’etre of the Rent Act."      In our  opinion these  observations  do  not  have  any application to  this case  mainly because in this case there was no  evidence that  there was  some vacant premises which the landlord  could conveniently  occupy.  The  occasion  to examine this aspect did not arise.      In our opinion the High Court was in error in upsetting the concurrent  findings of  facts both  on default and bona fide need  of the landlord and the judgment and order of the High Court  of Patna therefore,. are set aside. Accordingly, the appeal  is allowed in the facts and circumstances of the case. There will be no order as to costs. P S.S.                                       Appeal allowed. 260

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