AKHILESHWAR KUMAR AND ORS.versusMUSTAQIM AND ORS.

                     AKHILESHWAR KUMAR AND ORS.                                    A
                                 v.
                          MUSTAQIM AND ORS.

                             DECEMBER 12, 2002

                  [R. C. LAHOTI AND BRJJESH KUMAR, JJ.]                            B


         Rent Control and Eviction:

           Bihar Building (Lease, Rent and Eviction Control) Act, 1882-Sections
     11 (J)(c) and 14(8) -Eviction petitiorr-On ground ofbonafide requirement-     C
    Decree in favour of landlord-However, High Court holding that requirement
    pleaded by landlord not genuine, setting aside the decree-On appeal, Held:
     Trial Court took into consideration relevant circumstances and available
    evidence-Thus the finding could not be upset by High Court in revisional
    jurisdiction.                                                                  D
          Appellants, educated unemployed, purchased suit premises for
    satisfying the requirement of appellant No.I of running business. The suit
    premises were let out to respondent by appellant's predecessor in title.
    Appellants filed eviction petition.against respondent-tenant under Section
    ll(l)(c) of the Bihar Building (Lease, Rent and Eviction Control) Act,         E
    1882. Trial Court passed partial eviction decree. Respondent-tenant filed
    revision. High Court allowed the revision and set aside the decree holding
    that appellants were engaged in supporting their father in his business
    carried on in another premises and also that there are two other shops
    available to appellants. Hence the present appeal.
                                                                                   F
          Allowing the appeal, the Court

          HELD: I.I. The approach adopted by High Court cannot be
    countenanced and has occasioned a failure of justice. Its observation that
    the requirement pleaded by appellants falls short of felt need and is merely   G
    a desire is unsustainable. Judgment of trial Court is a detailed and
    exhaustive judgment which has taken into consideration each and every
    availab~e piece of evidence and relevant circumstances assessed with
    objectivity, consistently with the relevant principles of law and hence the
    finding is one which could not have been upset by High Court in exercise
I                                                                                  H
                                        57
    58                        SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A   of its revisional jurisdiction. Moreover, the manner in which Court has
    proceeded to form an opinion at variance with the findings of trial Court
    is wholly unsustainable. 160-B; 61-B-CJ

          1.2. There is overwhelming evidence available to show that appellant
    No.I is sitting idle, without any adequate commercial activity available to
B   him so as to gainfully employ him. Appellant No.I is provisionally assisting
    his father in their family business which does not mean that he should
    never start his own independent business. High Court overlooked the
    evidence to the effect, relied on by trial Court too, that son-in-law of
    appellant No.I's father was assisting the latter in his business and there
C   was little tert to be done by his sons. 160-B-DI

           1.3. Once it has been proved by a landlord that the suit
    accommodation is required bona fide by him for his own purpose and such
    satisfaction withstands the test of objective assessment by the Court of facts
    then choosing of the accommodation which would be reasonable to satisfy
D   such requirement has to be left to the subjective choice of the needy. Court
    cannot thrust upon its own choice on the needy. The choice has to be
    exercised reasonably and not whimsically. The alternative accommodation
    which prevailed with High Court are either not available to appellant no. I
    or not suitable in all respects as the suit accommodation is. Approach of
    High Court that an accommodation got vacated to satisfy the need of
E   appellant No.2, who too is an educated unemployed, should be diverted
    or can be considered as relevant alternative accommodation to satisfy the
    requirement of appellant No.I, another educated unemployed brother,
    cannot be countenanced. So also considering a shop situated over a septic
    tank and inaccessible on account of a ditch in front of the shop and hence
F   lying vacant cannot be considered a suitable alternative to the suit shop
    which is situated in a marketing complex, is easily accessible and has been
    purchased by appellants to satisfy the felt need of one of them.
                                                                  (60-F-H;61-AI

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3226 of
G 1999.
         From the Judgment and Order dated 2.11.1998 of the Patna High
    Court in C.R. No. 449 of 199i.

        S.B. Sanyal, Ms. Manila Verma, Devashish Bharuka and Ranjan
H   Mukherjee, for the Appellants.
          AKHILESHWAR KUMAR v. MUSTAQIM (R.C. LAHOTI, J.)                  59
     Sujit K. Singh, Tathagat H. Vatdhan and Shashi B. Upadhyay, for             A
the Respondents.

     The Judgment of the Court was delivered by

      R.C. LAHOTI, J. A decree for eviction upholding availability of ground
under clause (c) of sub-Section (I) of Section 11 of the Bihar Buildings         B
(Lease, Rent & Eviction) Control Act, 1982 (hereinafter 'the Act', for short)
was passed in favour of the appellant-landlords and against the tenant-
respondents by learned Munsif, Biharsharif. A revision preferred under Section
14(8) of the Act has been allowed by the High Court and decree of trial court
set aside. The aggrieved landlords are in appeal by special leave.               C
        It would suffice to briefly sum up and notice the facts, as alleged and .
found proved by the trial Court. Out of the four plaintiff-appellants, three are
brothers and fourth is the sister. They are all sons and daughter of Ram
Chandra Sao. Ram Chandra Sao has been running a business of dealing in
onions and potatoes. Out of his three sons, plaintiff No. I passed B.Sc. in D
1984, plaintiff No.2 passed B.A. Hons. in 1994 and plaintiff No.3 passed
matriculation in 1988. All the three sons are educated unemployed. The three
brothers are in need of non-residential premises for running business, each of
his own and separately from each other. The suit premises consist of two
shops combined together which were let out to the respondent-tenants by one
Dr. Bhuvnesh Kumar, the predecessor in title of the plaintiffs. The plaintiffs E
have purchased the suit premi~es through registered deed of sale for satisfying
the requirement of Akhilesh Kumar, plaintiff No.I, who wants to start his
own retail business of clothes with capital made available by the financial
assistance from the father. The trial Court found the requirement to be
reasonable and in good faith. However, the trial Court formed an opinion that F
partial eviction would satisfy the requirement of Akhilesh Kumar and,
therefore, by decree dated 21.12.9.6 directed part of the suit premises, as
specified in the decree of the trial Court, to be vacated. The respondent-
tenants preferred a revision. The High Court has not dislodged the essential
findings arrived at by the trial Court that Akhilesh Kumar is an educated
unemployed and is in need of settling himself independently in business. G
However, what has prevailed with the High Court in reversing the decree of
the trial Court may be noticed. The High Court holds that all the plaintiffs
are engaged in supporting the father in potato and onion business which is
being carried on in another premises and, therefore, it is difficult to believe
that plaintiff No. I wants to start any business of his own. Secondly, there are H
    60                         SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A two other shops available to the plaintiffs wherein plaintiff No. I could have
    started the business if at all he intended bona fide to do so. But that was not
    done. The High Court summed up its conclusion by observing that the
    requirement pleaded by the plaintiffs was not genuine; it was rather mere
    desire, the element of need being absent.

B           In our opinion, the approach adopted by the High Court cannot be
    countenanced and has occasioned a failure of justice. Overwhelming evidence
    is available to show that the plaintiff No. I is sitting idle, without any adequate
    commercial activity available to· him so as to gainfully employ him. The
    plaintiff No. I and his father both have deposed to this fact. Simply because
C   the plaintiff No. I is provisionally assisting his father in their family business,
    it does not mean that he should never start his own independent business.
    What the High Court has overlooked is the evidence to the effect, relied on
    by the trial Court too, that the husband of plaintiff NoA, i.e. son-in-law of
    Ram Chandra Sao, was assisting the latter in his business and there was little
    left to be done by the three sons.
D
          So is the case with the availability of alternative accommodation, as
  opined by the High Court. There is a shop in respect of which a suit for
  evict\on was filed to satisfy the need of plaintiff No.2. The suit was
  compromised and the shop was got vacated. The shop is meant for the business
E of plaintiff No.2. There is yet another shop constructed by the father of the
  plaintiffs which is situated over a septic tank but the same is almost inaccessible
  inasmuch as there is a deep ditch in front of the shop and that is why it is
  lying vacant and unutilized. Once it has been proved by a landlord that the
  suit accommodation is required bona fide by him for his own purpose and
  such satisfaction withstands the test of objective assessment by the Court of
F facts then choosing of the accommodation which would be reasonable to
  satisfy such requirement has to be left to the subjective choice of the needy.
  The Court cannot thrust upon its own choice on the needy, Of course, the
  choice has to be exercised reasonably and not whimsically. The alternative
  accommodation which have prevailed with the High Court are either not
  available to the plaintiff No. I or not suitable in all respects as the suit
G accommodation is. The approach of the High Court that an accommodation
  got vacated to satisfy the need of plaintiff No.2, who too is an educated
  unemployed, should be diverted or can be considered as relevant alternative
  accommodation to satisfy the requirement of plaintiff No.I, another educated
  unemployed brother, cannot be countenanced. So also considering a shop
H situated over a septic tank and inaccessible on account of a ditch in front of
          AKHILESHWARKUMAR v. MUSTAQIM [R.C. LAHOTI,J.)                      61
the shop and hence lying vacant cannot be considered a suitable alternative A
to the suit shop which is situated in a marketing complex, is easily accessible
and has been purchased by the plaintiffs to satisfy the felt need of one of
them.

      We find it difficult to sustain the observation of the High Court that the
requirement pleaded .by the plaintiffs falls short of felt need and is merely a    B
desire. The judgment of the trial Court is a detailed and exhaustive judgment
which has taken into consideration each and every available piece of evidence
and relevant circumstances, assessed with objectivity, consistently with the
relevant principles of law and hence the finding is one which could not have
been upset by High Court in exercise of its revisional jurisdiction. Moreover,     C
as we have pointed out, the manner in which the High Court has proceeded
to form an opinion at variance with the findings of the trial Court is wholly
unsustainable.

        The appeal is allowed. The impugned judgment of the High Court is
set aside. Instead, the decree passed by the trial Court is restored with costs    D
throughout. The tenant"respondents are allowed four months' time from today
for delivering vacant and peaceful possession to the landlord"appellants and
in between clearing and continuing to clear the arrears of rent but subject to
his filing the usual undertaking within a period of three weeks from today in
the executing Court.
                                                                                   E
N.J.                                                          Appeal allowed.