- (1.) THE present Revision application is filed under Section 14 sub clause (8) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 being aggrieved and dissatisfied by the judgment and order dated 29.04.2011, passed in Eviction Suit No. 19 of 1997, by the learned Subordinate Judge, VI, Jamshedpur, whereby the defendant has been directed to vacate the suit premises and to deliver the khas vacant possession of the suit premises to the plaintiffs within three months from the date of the order.
(2.) THE learned counsel for the petitioner by referring the judgment and the evidence discussed in the judgment, submitted that the court below has not properly appreciated the evidence on record and thereby committed error while passing the decree in favour of the plaintiffs. The learned counsel for the petitioner by referring the plaintiffs' witnesses i.e. P.W. 1, pointed out from the cross -examination that in paragraph 26, 27, 33 and 40, certain admissions have been made by the plaintiffs' witnesses. Likewise, admission made in paragraph 17 of P.W. 3 is also referred by the learned counsel for the petitioner. The learned counsel for the petitioner further submitted that the Defendants' Witness No. 2 and Defendants Witness No. 3 have supported the case and in this context, he has also referred the examination -in -chief of these witnesses. The learned counsel for the applicant further submitted that the plaintiffs' case is based on bona fide personal necessity and in this context, the averments have been made in the plaint that they are three brothers and the two brothers are unmarried, because of shortage of space and considering this personal requirement of the plaintiffs, the court below passed an order in favour of the plaintiffs and thereby allowed the suit. It is further submitted that from the evidence on record, and on the basis of certain admissions, the facts reveals that two sons of the plaintiffs are residing in abroad (Saudi Arabia). However, this fact has not been properly considered and appreciated by the court below while considering the ground of personal necessity. It is further submitted that the ground of personal necessity is not proved on the basis of evidence on record. However, the court below by accepting the pleadings and the supportive evidence of the plaintiffs' witnesses, passed a decree of eviction in favour of the plaintiffs. It is further submitted that the court below has also not explored the probability of partial eviction. The learned counsel for the petitioner by referring proviso of Section 11 (1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 2000, pointed out that duty is cast upon the Court to explore the possibility of partial eviction. By referring the impugned order, the learned counsel for the petitioner pointed out that the court below has failed to appreciate this aspect of the matter. The learned counsel for the petitioner further submitted that the plaintiffs are required to prove their own case but they themselves have demolished their case on the basis of certain admissions made by the witnesses during cross -examination. The learned counsel for the petitioner further submitted that the ground of personal necessity is also required to be existed on the date of passing of the decree, therefore, subsequent development, if any are also relevant for the purpose of deciding the issue in question. However, the court below failed to appreciate this aspect and thereby committed an error while allowing the suit. The learned counsel for the petitioner, in support of his contentions, has referred to and relied upon the following judgments: (i) 1991 (2) P.L.J.R. 224 1998 (2) BLJR 1353 As against that, the learned counsel for the Opposite Parties while supporting the judgment passed by the court below, submitted that the court below is required to pass judgment on the basis of the pleadings of the parties and the evidence on record and in this context, the learned counsel for the Opposite Parties has referred certain averments made in the plaint i.e. paragraphs 6 and 7 as well as the Schedule attached to the plaint. The learned counsel for the Opposite Parties has further submitted that there is formal denial of paragraphs 6 and 7 in paragraphs 12 and 13 of the written statement filed by the defendants. There is no specific denial by the defendants with regard to the averments made in paragraphs 6 and 7 of the plaint. In this context, the learned counsel for the Opposite Parties has placed reliance and invited attention to Order VIII Rule III of the Code of Civil Procedure. The learned counsel for the Opposite Parties further submitted that the court below has rightly and properly appreciated the evidence on record. In this context, the learned counsel for the Opposite Parties has referred to the oral evidence adduced by P.W. 1. By referring paragraphs 9, 10, 11, 12, 13 and 14 of the oral evidence adduced by P.W. 1, it is further submitted that this witness has supported the case of the plaintiffs. It is further submitted that in the cross -examination, this witness has stated about his one brother, who is at present serving at abroad (Saudi Arabia). In this context, the learned counsel appearing for the Opposite Parties has submitted that his two brothers have not permanently shifted to Saudi Arabia but for the purpose of earning, they have gone to Saudi Arabia for some period, therefore, the ground of personal necessity cannot be demolished on this count alone. The learned counsel for the Opposite Parties further pointed out that the defendants have tried to put forward their case in paragraph 18 of the written statement, but there is specific denial in paragraph 28 of the oral evidence given by P.W. 1. The learned counsel for the Opposite Parties further submitted that the defendants witnesses have also miserably failed to prove the contention raised by them in their written statement. In this context, the learned counsel for the Opposite Parties by referring the oral evidence given by the Defendants witnesses and more particularly, in the examination -in -chief and the cross -examination, pointed out that they have deposed beyond the pleadings and the averments made in the written statements have not been proved by the oral evidence given by these witnesses. It is also pointed out that the court below is required to decide the case on the basis of the evidence on record, i.e. the pleadings and the oral evidence. It is further submitted that in the present case, though the stand was taken in paragraph 18 of the written statement, but the same has not been proved by any of the witnesses. The learned counsel for the Respondents by referring the oral evidence given by the defendants witnesses Nos. 2 and 3 from paragraphs 31 and 10 respectively, pointed out that the plaintiffs were very much present when the trial was going on and there is specific reference/note to this effect in the oral evidence given by these two witnesses. The learned counsel for the Opposite Parties further submitted that so far as the point/issue raised with regard to the partial eviction, as provided in Section 11 (1) (c) of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 is concerned, the court below has rightly and properly appreciated this issue, which is discussed in Issue No. VIII in paragraph 13 of the judgment. The learned counsel for the Respondents has also referred to the proviso of Section 11 (1) (c) of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 during the course of his submission. The learned counsel for the Opposite Parties has lastly submitted that the scope of Revision under Section 14 of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 is also required to be taken into consideration while deciding the present Revision application. In support of his contentions, the learned counsel for the Opposite Parties has referred to and relied upon the following judgments: (i) (2012) 8 SCC 148 (ii) 1993 (1) P.L.J.R. 87 2007 (4) P.L.J.R. 98 (iv) 2003 (1) J.L.J.R. SC 171 (v) AIR 2003 (SC) 532 2004 (8) SCC 490
(3.) IN reply to the submissions made by the learned counsel for the Opposite Parties, the learned counsel for the petitioner submitted that the plaintiff's witness No. 1 in his cross -examination in paragraph 40 has admitted that they are having five rooms and despite this admission, the court below did not consider this evidence and thereby committed error in allowing the suit filed by the plaintiffs. It is further submitted that the desire expressed by the plaintiffs cannot be said to be bona fide. The said requirement is required to be proved by cogent evidence. It is further submitted that the plaintiffs have not proved their case for personal requirement and the same is also reflected from certain admissions made by the plaintiffs' witnesses during their cross -examination, the ground of personal bona fide requirement, as claimed by the plaintiffs has not been proved. However, the court below has not properly appreciated this aspect of the matter and thereby committed an error in passing the judgment and decree.;