Babulal v. Mahendra Swarup Saxena — 1982 DIGILAW 272 (MP)

JUDGMENT H.G. Mishra, J. 1. This is an appeal by the defendants against the judgment and decree passed by the learned Additional District Judge on 25-7-80, whereby he has decreed the suit of the plaintiff on grounds under section 12 (1) (a) and (b) of the M.P. Accommodation Control Act, 1961, after reversing the judgment and decree of dismissal of the suit passed by the trial Court dated 19-4-1979. 2. Facts material for decision of this appeal are as under;-- The plaintiff-respondent No. 1, herein, brought the suit giving rise to this appeal on 15-5-76, for eviction of the defendants from the suit house and for recovery of arrears of rent on the allegations that defendant No. 1 Babulal, is his tenant and that he has unlawfully inducted defendants-appellant No. 2, 3 and 4 as sub-tenants; that the defendant No. 1 is in arrears of rent w.e.f. 6-5-75 i.e. the date when the plaintiff has purchased the suit house from the ex-Landlord Smt. Gyasobai, widow of Gokaliya the stipulated rent being Rs. 14/- per month it is further averred that the plaintiff served a demand-cum-quit notice on the defendant No. 1, Babulal, by registered post on 25-8-75; that inspite of service of the notice on the defendant No. 1, Babulal, he has neither paid or nor tendered the arrears of rent within two months of the receipt of the notice of demand nor has vacated himself the suit premises nor got he vacated the sub-tenants. Thus the suit, as originally brought, was on grounds under section 12 (1) (a) and (b) of the M.P. Accommodation Control Act, 1961, (for short the Act); that by amendment in the plaint, allowed by the trial Court vide order dated 2-12-78, ejectment was also sought on an additional ground falling under Clause (h) of sub-sec. (1) of section 12 of the Act, namely, the suit premises are bona fide required by the plaintiff for reconstruction and plans and estimates for which have been duly got sanctioned from the Municipal Corporation, Gwalior, on 14-7-77. It was also averred that sufficient funds are available to the plaintiff for the proposed reconstruction and that reconstruction is not possible without getting the suit premises vacated from the defendant. 3. It was also averred that sufficient funds are available to the plaintiff for the proposed reconstruction and that reconstruction is not possible without getting the suit premises vacated from the defendant. 3. The claim of the plaintiff was resisted by the defendants by a joint written statement, inter alia, on the grounds that no notice was served on the defendant No. 1, Babulal, the tenant; that the defendants other than Babulal are not the sub-tenants, but are joint tenants in possession of the suit premises; that grounds under section 12 (1) (a), (b) and (h) of the Act are not available to the plaintiff, inasmuch as in the absence of service of any notice of demand no cause of action under section 12 (1) (a) of the Act can be regarded to be available to the plaintiff; that the plaintiff does not bona fide require the suit premises moreover, he does not possess sufficient means for reconstruction of the suit premises. The averment as regards the plans and estimates got prepared by the plaintiff, is also denied. 4. After recording evidence of the parties, the trial Court held that the plaintiff has proved the availability of ground under section 12 (1) (h) of the Act, but dismissed the suit for ejectment on the findings that the plaintiff has failed to prove the service of notice to quit and that grounds under section 12 (1) (a) and (b) of the Act were also negatived. 5. Aggrieved by this judgment and decree, the plaintiff preferred an appeal which has been allowed by the lower appellate Court. The learned A.D.J. has held that the service of the notice to quit is no longer a requirement of the law; that notice served by the plaintiff on the defendant No. 1, Babulal, has to be regarded as a notice of demand of arrears of rent for the purpose of section 12 (1) (a) of the Act: that the defendant No. 1 Babulal, having made defaults in depositing the rent in compliance of section 13 (1) of the Act, as such the plaintiff is entitled to a decree on ground under section 12 (1) (a) of the Act. The ground of sub-letting under section 12 (1) (b) of the Act was, however, negatived. The ground of sub-letting under section 12 (1) (b) of the Act was, however, negatived. So far as the ground under section 12 (1) (h) of the Act is concerned the defendants did not raise any objection against the finding recorded by the trial Court on the point. Accordingly, the learned ADJ. decreed the suit under section 12 (1) (a) and (h) of the Act. Hence, this appeal. 6. During the pendency of this appeal, the defendants-appellants submitted an application (I.A. 56/82) for amendment in the written statement and the other application (I.A. No. 1297/82) under Order 41 rule 27 read with section 151 CPC. for permission to produce estimate to show that there has been a tremendous increase in the cost of construction with the march of time and now the reconstruction will involve nearly Rs. 55, 412/- as on 24-3-82. The appellants have also submitted an application (I.A. No. 4080/81) for condoning the defaults made in depositing the rent. These applications are opposed by the plaintiff-respondent as being wholly unnecessary and submitted that they are mala fide to unduly delay the proceedings, moreso, when the defendants had stated not to press the finding recorded by the trial Court on the point in favour of the plaintiff. 7. In this appeal, Shri A.K. Mangal, assisted by Shri A.K. Shrivastava, learned counsel for the appellants, contended (1) that the findings recorded by the learned ADJ. that the notice dated 25-8-75 was served on defendant No. 1 is not based on any legal evidence and is simply based on surmises and conjectures; (ii) that in order that ground under section 12 (1) (a) of the Act may be regarded available to the plaintiff-landlord, the service of notice of demand in writing in the manner prescribed is a condition precedent and since no notice is said to have been served on defendant No. 1. Babulal, who is the tenant of the suit premises according to the plaintiff, the learned ADJ. acted illegally in decreeing the suit on that ground; (iii) that the ground under section 12 (1) (h) of the Act is not available to the plaintiff inasmuch as he has failed to prove the availability of funds necessary for the proposed reconstruction. Babulal, who is the tenant of the suit premises according to the plaintiff, the learned ADJ. acted illegally in decreeing the suit on that ground; (iii) that the ground under section 12 (1) (h) of the Act is not available to the plaintiff inasmuch as he has failed to prove the availability of funds necessary for the proposed reconstruction. It was also contended that the applications under Order 41 rule 27 read with section 151 and under Order 6 rule 17 CPC should be allowed and that condonation of delay in depositing the rent may also be allowed It was further submitted that either the suit be dismissed or it may be remanded for an inquiry to be made in the light of the facts as alleged in those applications by the defendant-appellants. 8. Mr. K.L. Batham, learned counsel for the respondent, argued in support of the impugned judgment and decree and submitted that the defect in the notice has to be pleaded specifically in the written statement; and since the defendants have not pleaded the defect in the notice served by the plaintiff, they cannot be permitted to raise the objection in that behalf ; that the plaintiff has proved by his own statement the factum of receipt of the notice by the defendant No. 1 Babulal, and as has been relied on by the learned ADJ. on the point, a challenge to this finding of fact is not permissible in an appeal under section 100, CPC. on the point, a challenge to this finding of fact is not permissible in an appeal under section 100, CPC. that on the plea set out by the defendants in their written statement, they are joint tenants and since the service of the notice has been admitted and/or proved to have been effected on Govindram and Deviram, who are brothers of Babulal living with him as joint-tenant, service on them should be regarded as service on Babulal also that the defendant No. 1 has committed defaults in depositing the arrears of rent in accordance with the provisions of section 13 (1) of the Act, therefore, no ground whatsoever has been made for condonation of defaults found to have been made in depositing of the rent in accordance with section 13(1) of the Act; that a challenge to the finding recorded by the trial Court in favour of the plaintiff under section 12 (1) (h) of the Act as duly proved was given up before the first appellate Court, accordingly, the defendants have no right to be heard and to reagitate on that question of non-availability of that ground to the plaintiff-landlord specially when there is no affidavit of the counsel arguing the appeal before the learned ADJ. has been filed nor those of the appellants have been filed stating that the challenge to the finding on the point was in fact thrown by them before the ADJ. and, that even otherwise, the plaintiff has proved the ingredients essential to entitle him to take a decree for ejectment under section 12 (1) (h) read with section 12 (7) of the Act. 9. Having heard the learned counsel for the parties. I have come to the conclusion that the appeal deserves to be partly allowed to the extent indicated hereinafter. 10. To take up, first for consideration, the question of availability of ground under section 12 (l) (a) of the Act, it is essential to look at the provisions enacted thereunder it reads as under:-- 12. I have come to the conclusion that the appeal deserves to be partly allowed to the extent indicated hereinafter. 10. To take up, first for consideration, the question of availability of ground under section 12 (l) (a) of the Act, it is essential to look at the provisions enacted thereunder it reads as under:-- 12. Restriction on eviction of tenants.--Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely: (a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which notice of demand for arrears of rent has been served on him by the landlord in the prescribed manner; In order to show that the aforesaid ground is available to the plaintiff-landlord, it has to be proved that notice of demand of arrears of rent was sent by the plaintiff-landlord to the defendant in the prescribed manner and that it was served on the tenant and further that the tenant had failed to pay the arrears of rent within two months of the receipt thereof. The manner of service of any notice or intimation under section 12 (1) (a) has been prescribed by rule 15 of the M.P. Accommodation Control rules, 1966 which reads as under-- 15 Services of notice, etc;--Unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served.-- (a) By delivering it "to the person" or (b) By forwarding it to the person by registered post with acknowledgment due. (Emphasis supplied). In this case, the plaintiff has alleged in the plaint para 4 that service of notice, according to rule 15 above, was sent by registered post on 25.8.75 to the defendant No. 1. However, neither the receipt of the registration of the notice, nor any acknowledgement-due receipt showing that it has been received by the defendant No. 1, Babulal, has been brought on record. The plaintiff (though wrongly described in the statement as Mahendrasingh' has as PW. However, neither the receipt of the registration of the notice, nor any acknowledgement-due receipt showing that it has been received by the defendant No. 1, Babulal, has been brought on record. The plaintiff (though wrongly described in the statement as Mahendrasingh' has as PW. 1 merely stated in para 4 of his statement as under;-- Prativadi No. 1 Ki Aur Kharid Binahak Se Hi Kiraya Baki Hai Jo Bavjood Mang Ada Nahin Kiya. Kiraya Ada Karne Ke Liye Prativadi No. 1 Ko notice Bhi diya. Draft notice P. 3 Hai. Notice Ki Prati Prativadi Krimank 2, 3, 4 Ko Bhibheji Thi. Notice Sabhi Ko Prapt Hua, Prativadi Sabhi Ko Prapt Hua, Prativadi Krimank 3, 4, Ko Prapti Ki Rasiden Pradarsh P. 4 Aur 5 Hain. Now relying on this statement, the learned ADJ. has held that the notices sent to Govindram and Deviram have been received, so also the notice sent to defendant No. 1 Babulal, must have been received by him. The reasoning so employed by the learned ADJ. to conclude that the notice was actually served on and was actually received by the defendant No. 1 Babulal, the tenant, is essentially conjectural in character. The plaintiff has not even stated in his deposition that he had sent the proper addressed notice by registered post to defendant No. 1, Babulal the tenant. More-over, undisputedly, the notice alleged to have been sent as per draft, Ex. P. 3 is not properly addressed inasmuch as 'Babulal' is described to be the son of 'Govind' whereas he is the son of 'Baldev'. The plaintiff has failed to lay the foundation for the presumption enacted by section 28 of the M.P. General Clauses Act, 1957, (Act No. 3 of 1957) as amended by M.P. Act No. 6 of 1960, section 28 of the said Act reads as under:-- 28 Meaning of service by posts:--Where any Madhya Pradesh Act authorises or requires any document to be served by post, whether the expression 'service' or either of the expression "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting "by registered post" a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. (Emphasis supplied). (Emphasis supplied). Since in this case, the plaintiff has failed to prove that notice was properly addressed, pre-paid and posted by registered post, the presumption enacted by section 28 of the said Act, did not become operative in the case and the plaintiff has also, in fact, not stated that he saw the notice being received by the defendant No. 1 Babulal, the tenant, Accordingly, the finding recorded by the learned ADJ. on the point in para No. 11 of the impugned judgment as based on no legal evidence is essentially conjectural in character. The finding recorded by the trial Court to the effect that no notice has been proved to have been served on the defendant No. 1 Babulal, the tenant, deserves to be restored Accordingly, it is held that the plaintiff has failed to prove the service of notice of demand for arrears of rent on the defendant No. 1, Babulal, the tenant, in the prescribed manner. 11. Faced with this situation, Mr. Batham, learned counsel for the plaintiff respondent, advanced a further contention to the effect that on the plea set out be the defendants in answer to the suit, namely, that they arc joint tenant in occupation of the suit premises, the service on some of them, namely, on Govindram and Deviram should be regarded to be the service on all the joint tenants including the defendant No. 1, Babulal. In support of this contention reliance is placed on Firm Sriniwas Ram Kumar v. Mahabir Prasad [supra]. No doubt in that case, it has been held that:-- When the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be noting improper is given the plaintiff a decree upon the case which the defendant himself make. In the light of this principle, in the case of Firm Sriniwas Ram Kumar (supra), in which the plaintiff brought a suit for specific performance of contract merely, a decree for recovery of loan admitted to have been advanced by the defendants in answer to the suit was decreed. In the light of this principle, in the case of Firm Sriniwas Ram Kumar (supra), in which the plaintiff brought a suit for specific performance of contract merely, a decree for recovery of loan admitted to have been advanced by the defendants in answer to the suit was decreed. However, the aforesaid principle cannot usefully extended and employed in the service of the defendants appellant's because notwithstanding anything to the contrary contained in any other law or contract, no suit can be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more grounds enumerated in sub section (1) (a) to (p) of section 12 of the Act,. The non obstante clause of section 12 (1) has the overriding effect and whatever may be the principles of general law they cannot out-weigh the obstinate requirements of pleadings and proof of grounds as laid down in the aforesaid Clause. The mandate of law as enumerated in Clause (a) of section 12 (1) of the Act is the service of notice of demand on the tenant by a landlord in the prescribed manner. Accordingly, the plaintiff has to win or fall with his plea and proof on the point. He cannot succeed on the case set out by the defendants in their written statement. The plaintiff's case as set out in the plaint is that Babulal, defendant No. 1, alone is his tenant. As such, in order to avail the ground under section 12 (1) (a) of the Act, the plaintiff had to prove service of the notice on the defendant No. 1, Babulal the tenant. The service on other defendants, who are stated to be in possession of the suit premises as sub-tenants cannot be regarded to be a valid service of notice as envisaged by section 12 (1) (a) of the Act read with rule 15. The words 'to the person' occurring in the said rule, connote that the service has to be on the tenant and tenant alone. In order to resist this conclusion, reliance was tried to be placed on the following observations in Buddh v. Bedaria 1980 JLJ SN 20. Budha the defendant, appellant No. 1 is the Karta, being eldest male member of the family of which the other appellants are also the members. Service on one of the co-tenants is service on all. In order to resist this conclusion, reliance was tried to be placed on the following observations in Buddh v. Bedaria 1980 JLJ SN 20. Budha the defendant, appellant No. 1 is the Karta, being eldest male member of the family of which the other appellants are also the members. Service on one of the co-tenants is service on all. The aforesaid observations cannot be pressed into service in this case because there besides Budha, other members of his family, who were stated to be tenants of the suit premises, were impleaded as co-tenants In the instant case, the defendant other than Babulal are not impleaded as co-tenants but as sub-tenant. 12. So far as reliance on Nathusingh v. Laxman Rao 1960 JLJ 540 wherein it has been laid down that the defendant has to plead specific defects in the notice, is concerned, the same cannot be regarded to be available to the plaintiff in this case. Here the plea is that notice of demand was not served at all on the defendant No. 1 Babulal, the tenant. A distinction has to be made between a case of non-service of notice and a case of defect in the notice served. It is true that after pronouncement of the decision in V. Dhanpal Chattiar v. Tasodai Ammal 1980 JLJ 1 (SC) the service of notice to quit is no longer requirement in a case governed by special statute like the MP. Accommodation Control Act 1961 but the requirement of the special law on the point regarding service of the notice demand of arrears of rent on the tenant in the prescribed manner continues to be legally essential ingredient of the cause of action for a suit based on ground like section 12 (1) (a) of the Act. In view of the discussion aforesaid, differing from the learned ADJ. and agreeing with the learned trial Judge, it is held that the plaintiff has failed to prove the service of notice of demand of arrears of rent in the prescribed manner on the defendant No. 1; Babulal, the tenant. Accordingly, the ground under section 12 (1) (a) of the Act is not available to him. In this view of the matter, even if the defendant has made any default in depositing the rent in compliance with section 13 (1) of the Act, it is of no consequence. Accordingly, the ground under section 12 (1) (a) of the Act is not available to him. In this view of the matter, even if the defendant has made any default in depositing the rent in compliance with section 13 (1) of the Act, it is of no consequence. Accordingly, the application (I.A. No. 4080/81) submitted by the appellants in this Court for condonation of defaults in depositing the arrears of rent appears to be wholly unnecessary and is rejected as such. 13. This brings to the question of availability of ground under section 12 (1) (h) of the Act to the plaintiff. The plaintiff in the trial Court produced and proved plans Ex. P-7C, P 8C, permission of the Municipal Corporation, Ex. P. 9, the estimate, Ex. P. 10 showing the costs of the proposed construction will be Rs. 23,280 and the details of the estimate of construction Ex P 11. In order to prove the estimate and is details, M.R. Qurreshi has been examined as P.W.8. He duly proves the estimate, Ex. P.W. and its details (Ex. P. 11). No cross-examination has been directed against him. Furthermore, the plaintiff has as P.W. 1, in para 8 of his deposition, stated that he is entitled (vide Ex. P. 12) to raise house building loan from the A.G. Office. It has been stated in Ex. P. 12 that the plaintiffs basic pay is Rs. 330 and he is entitled to a house-building advance. He has also stated that the loan which can be sanctioned to him is 75 times of his basic pay. He has further stated that he bona-fidely requires the suit premises for reconstruction and that they cannot be reconstructed without getting them vacated from the defendants. It is significant to note that as stated by the plaintiff the house-building loan can be granted within 3 months and the construction has to be started in that very financial year in which the loan is granted, and that failure to do so, will make one liable to disciplinary action besides liable to make payment of interest. On the basis of the evidence so led by the plaintiff bona fide requires the suit premises for reconstruction; that sufficient funds are available to him; and, that proper plans and estimates have been duly prepared. On the basis of the evidence so led by the plaintiff bona fide requires the suit premises for reconstruction; that sufficient funds are available to him; and, that proper plans and estimates have been duly prepared. In the appeal before the learned A.D.J. the defendant could have challenged these findings, but inst ad of challenging them, they elected to give up the challenge on the point. In para 13, of the impugned judgment, the learned A.D.J. has observed on the point as under: -- Prativadi--Prati-appellarthi Gan Ne Is Vinishchaya Ke Viruddh Koi Pratakshep Nahin Kiya Hai. No affidavit of challenging the correctness of the aforesaid observations has been filed either of the counsel who argued the appeal or that of the appellant. Accordingly, it has to be regarded that the point was given up before the learned A.D.J. Accordingly, the defendants have no right to raise the contention that, ground under section 12 (1) (h) of the Act is not available to the plaintiff. Even otherwise, the expression "necessary funds for reconstruction of the suit promises are available with the landlord" used in section 12 (1) (h) of the Act cannot be constructed to connote that only on proof of the fact that liquid assets are with the landlord, the said ground can be regarded to be available to him. In Ramkrishna v. Jamunabai SA No. 8/1981, 1982 MPRCJ 17, A.R. Navkar, J. expressed himself on the point thus:-- The other aspect of the case will be that it is not necessary that the landlord should have liquid assets with him. If, in the instant case the landlady has potential to raise the money required, that itself will be sufficient to hold that she has got sufficient means to reconstruct. In this case, the plaintiff has proved his entitlement to receive a loan in an amount of his basic pay multiplied by 75 as discussed above. It appears, that in view of unassailability of the evidence so led by the plaintiff, a challenge to the finding recorded by the trial Court was deliberately given up before the learned A.D.J. 14. Now, two applications have been filed by the defendants (i) under Order 41, rule 27 read with section 151 C.P.C. (I.A. No. 1297/82) and, (ii) the other for amendment of the written statement (I.A. No. 56/82). Now, two applications have been filed by the defendants (i) under Order 41, rule 27 read with section 151 C.P.C. (I.A. No. 1297/82) and, (ii) the other for amendment of the written statement (I.A. No. 56/82). These applications appear to have been filed with the aim of postponing the decision of the case till dooms-day. Extra-ordinary powers vested in this Court under Order 41, rule 27 C.P.C. cannot be exercised in their favour. The revised estimate, now tried to be brought on record, neither appears to be necessary to enable this Court to pronounce the judgment nor has any substantial case been made out by the appellants for permitting its production. Accordingly, the application under Order 41, rule 27 (I.A. No. 1297/82) is hereby rejected. So also the application for amendment in the written statement (I.A. No. 56/82) deserves to be rejected on the ground that the defendants had raised a similar plea and if they failed to make out the plea so set out in their written statement, they have to thank themselves. The application, accordingly, appears to be mala fide and as such, it is hereby rejected. 15. In result, the appeal partly succeeds and is allowed to the extent that the judgment and decree for eviction on the ground under section 12 (1) (a) of the Act are hereby set aside. However, the decree for eviction under section 12 (1) (h) of the Act is maintained as against the defendant appellants. 16. When put to election in accordance with section 18 (1) of the Act, on behalf of the defendant No. 1, it was stated by Shri A.K. Mangal that he elects to re-enter the suit premises on their being reconstructed. However, the decree for eviction under section 12 (1) (h) of the Act is maintained as against the defendant appellants. 16. When put to election in accordance with section 18 (1) of the Act, on behalf of the defendant No. 1, it was stated by Shri A.K. Mangal that he elects to re-enter the suit premises on their being reconstructed. Accordingly, the time-schedule is fixed as under:-- (a) The defendant-appellant No. I Babulal, will vacate the suit premises and get vacated from other defendants on or before 31st August 1982 (Thirty-first Of August Nineteen-Hundred Eighty-two) and handover possession to the plaintiff through Court on or before the aforesaid date; (b) that the plaintiff will reconstruct the suit premises on or before 31st August 1983 (Thirty-first of August, Nineteen Hundred Eighty-three) and on completion of the reconstruction, will give an intimation in writing to defendant-appellant No. I Babulal, the tenant, through the Court, to re-enter the suit premises; and; (c) the defendant-appellant No. 1 will deposit the entire rent due upto-date within a period of 2 months from to day and will go on depositing rent at the stipulated rate of rent i.e. Rs. 14/- p.m. by the 1st of each succeeding month in respect of the period of his occupation of the suit premises. 17. In view of the divided success, the costs in this Court shall be borne by the parties as incurred. The costs of the Courts below shall be as directed by the learned Additional District judge. Let a decree be drawn accordingly.