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1991 DIGILAW 104 (MP)

Kailashibai v. Foolchand

1991-02-26

R.K.VERMA

body1991
JUDGMENT R.K. Varma, J. -- 1. This is a second appeal filed by the tenant-defendant against the judgment and decree dated 1.9.87 passed by the Additional Judge to the Court of the District Judge, Indore, in Civil Appeal No. 71-A/87 affirming the judgment and decree dated 18.4.84 passed by the IInd Civil Judge Class II, Indore in Civil Suit No. 246-A/81 whereby the respondent plaintiff's suit for eviction of the defendant-appellant has been decreed. 2. The facts giving rise to this appeal, briefly stated, are as follows:- The respondent plaintiff filed the instant suit on 9.11.81 for eviction of the appellant-defendant from the residential accommodation in suit wherein the appellant has been living as a tenant paying monthly rent of Rs. 14/-. The plaintiff alleged the grounds of nuisance as well as his bona fide requirement under sections 12(1)(c) and 12(1)(e) of the M.P. Accommodation Control Act (hereinafter referred to as 'the Act'). The appellant-defendant resisted the suit and denied the allegations regarding both the grounds and alleged that the plaintiff had demolished the residential rooms adjoining the tenanted accommodation in which the plaintiff was living and after demolishing the rooms he constructed a godown which he has let to one laxmi Soap Factory and that the plaintiff has contracted sale of the tenanted accommodation in suit with the said soap factory and as such, the plaintiff did not bona fide require the suit accommodation. 3. The learned trial Court on the basis of the evidence recorded in the case, found that the plaintiff had proved his bona fide requirement of the suit-accommodation for the purpose of his residence and he had no alternative suitable accommodation of his own available in the city of Indore. Accordingly, plaintiff's suit for eviction was decreed on the ground of bona fide requirement only. In appeal filed by the tenant, the learned lower appellate Court has concurred with the finding of the learned trial Court on the question of bona fide requirement of the plaintiff and has therefore, affirmed the judgment and decree of eviction passed by the trial Court. Being aggrieved, the defendant has filed this second appeal. 4. In appeal filed by the tenant, the learned lower appellate Court has concurred with the finding of the learned trial Court on the question of bona fide requirement of the plaintiff and has therefore, affirmed the judgment and decree of eviction passed by the trial Court. Being aggrieved, the defendant has filed this second appeal. 4. This appeal was admitted for hearing on the following substantial question of law:- "Whether the finding on the question of bona fide requirement, as recorded by the lower appellate Court, stands vitiated on account of fact that the plaintiff-respondent converted a portion of his residential house into a non-residential one by constructing a godown and letting it out on enhanced rent?" It is not disputed that the respondent-plaintiff was living with his cousin Gyanidas in the close vicinity of the suit accommodation and that he demolished the portion adjoining the suit accommodation and constructed a godown in its place which he let out on rent to the owner of Laxmi Soap Factory. The plaintiff Moolchand, who was examined as PW-1 on 29.4.84 has stated that he had taken loan from Laxmi Soap Factory and that the rent payable in respect of the godown is being adjusted to the payment of loan. He also stated that his family comprised of eight members who were all residing in the house of his cousin Gyanidas in the close vicinity of the suit-accommodation for the last 6-7 years and that he constructed the said godown about three or four years ago. The learned lower appellate Court has held that the plaintiff has proved that the house of Gyanidas in which the plaintiff is presently living, does not belong to the plaintiff and the plaintiff had no alternative suitable accommodation of his own in the city of Indore. 5. The only question of law that arises for consideration is whether by constructing a godown in place, of the residential accommodation and letting it out on rent, the plaintiff-landlord could be said to have disentitled himself from seeking an eviction on the ground of bona fide requirement of the suit accommodation for residential purpose. The learned counsel for the parties have cited two decisions having bearing on the question viz., Shyam Bihari Singh v. Smt. Sushila Devi Mittal (AIR 1982 Delhi 255) and Narendra Kumar v. Radha Kishan (1981 MPRCJ, N. 191). The learned counsel for the parties have cited two decisions having bearing on the question viz., Shyam Bihari Singh v. Smt. Sushila Devi Mittal (AIR 1982 Delhi 255) and Narendra Kumar v. Radha Kishan (1981 MPRCJ, N. 191). The relevant observation in the case of Shyam Bihari Singh (supra) is as under:- "The shortage of residential accommodation with the landlady may be due to various reasons. In deciding an application under S. 14(1)(e) what is relevant to see is as to whether that shortage was created with a view to oust the tenant. If the landlady alters the use of the residential premises with her, for example by using them for commercial purposes, and this has been done so as to create the shortage of residential accommodation with her with a view to seek the eviction of a tenant, then in such a case the landlady would not be entitled to any relief. On the other hand, the change of user of the residential premises for commercial or professional purposes may be bona fide for the purposes of earning a livelihood. If the changed user is in accordance with law then, if the remaining residential accommodation with the landlady is insufficient, the landlady can justifiably move an application and seek the eviction of a tenant under S. 14(1)(e). Where the bona fides of the landlady are not in doubt, the tenant will not be heard to say that the shortage of accommodation is due to the landlady's own creation and the tenants eviction should not be ordered. A landlady is entitled to use the accommodation with her in any way she pleases. If the use of the accommodation for commercial purpose is bona fide and in accordance with law then she would be entitled to plead that the remaining accommodation with her is insufficient for residential purposes." The relevant observation having bearing on the question under consideration in the case of Narendra Kumar (supra) is as follows:- "No provision in law is shown to the effect that a landlord cannot use residential accommodation for non-residential purpose. The restrictions imposed on the right of landlord by clause (e) and/or (f) of section 12(1) of the Act are confined to seeking eviction through a Court of law only. Accordingly a landlord is free to convert residential premises into non-residential one and use them for "the purpose of starting and/or continuing his business. The restrictions imposed on the right of landlord by clause (e) and/or (f) of section 12(1) of the Act are confined to seeking eviction through a Court of law only. Accordingly a landlord is free to convert residential premises into non-residential one and use them for "the purpose of starting and/or continuing his business. In this case, the factum of three rooms (after removal of the intervening roof, two rooms merely) being in occupation of the plaintiff for non-residential purpose in connection with the oil-expeller business is a fact even admitted by the defendant. The conversion in question is not shown to have been resorted to by way of mere camouflage and/or subterfuge to boost up the alleged requirement." 6. From the evidence on record, it is apparent that the respondent-plaintiff had constructed the godown in place of residential portion in his occupation much before filing of the suit on 9.11.81. The plaintiff Moolchand (PW-1) who was examined on 29.4.83 has stated that he had shifted to reside in the house of his cousin 6-7 years ago and that the godown was constructed 3-4 years ago. From this it is dear that the plaintiff did not file the suit immediately after shifting to his cousin's house or while making construction of the godown which appears to have been constructed in the year 1979-80. The learned counsel for the appellant has pointed out from the evidence of Gyanidas (PW -2) that the plaintiff Moolchand has been living in a room in the house of Gyanidas for the last five years which indicates that the plaintiff shifted to reside in the house of Gyanidas in the year 1978 and not before. Be that as it may, there is no suggestion either in written statement or in the evidence to say that the appellant-plaintiff constructed the god own in place of the residential portion in occupation of the plaintiff mala fide with the ulterior object of evicting the appellant-tenant from the suit-accommodation. It cannot be denied that the owner of house property is free to plan his economy and to convert the portions of his house property to a more profitable use. 7. It cannot be denied that the owner of house property is free to plan his economy and to convert the portions of his house property to a more profitable use. 7. In the circumstances of this case, I am not inclined to hold that the respondent-plaintiff had planned his economy and constructed a godown with the mala fide intention to create bona fide requirement for his residence in respect of the suit-accommodation. It cannot be denied that when the plaintiff filed the suit, he was not possessed of any alternative residential accommodation of his own in the town. In the circumstances, the concurrent finding of bona fide requirement as given by the Courts below cannot be regarded as vitiated on the ground that the plaintiff has constructed a godown by demolishing the residential portion in his occupation. The learned lower appellate Court has also noticed that in this case it is not the intention of the defendant that the plaintiff has by constructing the godown mala fide converted the residential accommodation into non-residential. The decisions cited above, are not of much help to the appellant-defendant in view of the fact that the plaintiff cannot be said to have resorted by way of mere camouflage and/or subterfuge to boost up the alleged requirement. It must, therefore, be held that no case has been made out for interference in this second appeal with the concurrent finding of fact of the Court below on the question of bona fide requirement of the plaintiff. 8. Consequently, this appeal fails and is hereby dismissed. There shall, however, be no orders as to costs.