Gajra Bevel Gears Ltd. v. Manohar — 1996 DIGILAW 952 (MP)

JUDGMENT 1. The defendant/appellant has directed this appeal against judgment and decree dated 31st July, 1995, rendered by XV Additional District Judge, Indore in Civil Suit-No. 30-A/96, thereby decreeing the suit filed by the respondent No.2 plaintiff, for ejectment from the suit-accommodation under section 12 (1) (b) and 12 (1) (e) of the Madhya Pradesh Accommodation Control Act, 1961 (for short 'the Act') against appellant and respondent. No. 2/defendant. 2. The facts of the case lie in a narrow compass. That respondent No. 1/plaintiff filed a suit against appellant and respondent No.2 for arrears of rent and eviction from the house situated-at 88, Chandralok Colony, Indore under different provisions of section 12 of the Act, but at the trial, the suit was contested only under section 12 (1) (b) and 12 (1) (e) of the Act, on the allegation that the appellant, after taking the suit-accommodation on rent from respondent No.1/plaintiff on 1.11.78 as per lease-deed, Exh. P/9, on 11.10.78, unlawfully without written permission of the land-lord parted with the possession of the suit-accommodation and was given to respondent No.2 (defendant No.2), thereby committing breach of contract of the agreement. The suit was also contested on the ground of bonafide requirement of the suit-accommodation for the residence of the plaintiff himself and his family members, as the plaintiff has no other reasonably suitable residential accommodation of his own in his occupation in the city of Indore, under section 12 (1) (e) of the Act. The Court declined to give its decision on issue Nos. 2, 3, 6, 7, 8 and 9. The Court recorded the findings on Issue Nos. 4, 5, 10 and 11 only and decreed the suit of the plaintiff for eviction from the suit-accommodation, of the appellant and respondent No. 2, under section 12 (1 ) (b) and 12 (1) (e) of the Act. 3. The suit was resisted by the appellant and respondent No.2 (Defendants), by filing a joint written statement. In the written statement, it is alleged that tenancy agreement was initially executed between the plaintiff and appellant (defendant No. 1). As per the agreement, the tenancy was to commence from 1.11.1978 and it was for the period of six months expiring on 1.5.1979. The said agreement, was however, not acted upon after 1.12.78. On 23.10.1978, respondent No.1/plaintiff, entered into an agreement to. sell the suit-accommodation to defendant No.2 and defendant No.2 paid Rs. As per the agreement, the tenancy was to commence from 1.11.1978 and it was for the period of six months expiring on 1.5.1979. The said agreement, was however, not acted upon after 1.12.78. On 23.10.1978, respondent No.1/plaintiff, entered into an agreement to. sell the suit-accommodation to defendant No.2 and defendant No.2 paid Rs. 25,000/by way of advance against the price, as agreed between the parties. It is stated in the written statement that from 1.12.78, defendant No.2 had occupied the suit-accommodation and during commencement of the agreement, he continued in possession of the accommodation, as tenant of the plaintiff. From 1.12.1978, the defendant No.2 was paying rent and the same being accepted by the plaintiff, thereby creating a fresh tenancy between respondent No. 1/plaintiff and respondent No. 2/defendant No.2). It is alleged that defendant No.2 filed the suit for specific performance of the contract to sell the suit-accommodation, in favour of the defendant No.2 against the plaintiff. The same is still pending in the Court for its disposal. The defendants have denied that the defendant No.1 has unlawfully parted with the possession of the suit-accommodation and handed over its possession to respondent No.2 (defendant No.2). It is also denied that plaintiff bonafide requires the suit-accommodation for his residence and for the residence of his family members. It was, contended that plaintiff wants to sell the suit-accommodation on higher price, as the prices of the properties are grown up and with this intention, filed the suit for eviction on false grounds and allegations. The objections with regard to valuation, jurisdiction and Court fees were also raised in the written statement. 4. The trial Court framed the issues and recorded evidence of the parties. As indicated earlier, the suit was contested only on the grounds of section 12 (1) (b) and 12 (1) (e) of the Act. The Court recorded findings on issue Nos. 4 and 5 in favour of the plaintiff and decreed the suit for eviction against the appellant and respondent No.2 (defendant No.2). Aggrieved by the judgment and decree of the trial Court, only defendant No.1/appellant has filed this appeal. The defendant No.2 (respondent No.2) did not file any appeal against the decree of the trial Court. 5. In the present appeal, following fact:; are not disputed. That initially, the suit-accommodation was let out by the plaintiff to the appellant (defendant No.1) on monthly rent of Rs. The defendant No.2 (respondent No.2) did not file any appeal against the decree of the trial Court. 5. In the present appeal, following fact:; are not disputed. That initially, the suit-accommodation was let out by the plaintiff to the appellant (defendant No.1) on monthly rent of Rs. 1650/- and rent note, Exh. P/9 was executed between the parties (defendant No.1 and plaintiff) in this behalf. It was also not in dispute that on 23.10.78, an agreement to sell suit-accommodation to defendant No.1, was executed between plaintiff and defendant No.2 (respondent No.2). It is also not disputed that on 12.2.1981, defendant No.2 served a notice on the plaintiff for specific performance of the contract with regard to sell of the suit-accommodation. The said notice is Exh. D/1. The plaintiff replied the notice vide Exh. D/2. It is not in dispute that on 7.3.1981, plaintiff served a quit notice, Exh. P/11 on defendant No. 1/Appellant. The reply to this notice was given by the appellant vide Exh. P/12. The present suit for ejectment against the appellant and respondent No. 2 was filed in the trial Court on 29.7.1981. It is also not disputed that after passing of the decree for ejectment in the present suit and during pendency of this appeal, possession of the suit-accommodation was taken on 3.9.1966 by the respondent No. 1/plaintifffrom the appellant in execution of the decree. After execution of the decree of eviction, during the pendency of the appeal, the appellant on 8.10.96, filed IA No. 5129/96, under Order VI Rule 17 of the Code of Civil Procedure, (for short, 'the Code'), seeking amendment in the written statement filed by the defendants before the trial Court. The application was opposed by respondent No.1 /plaintiff. It is stated in the aforesaid application that because of subsequent events in the present case, the appellant has moved the application for permitting him to incorporate subsequent facts in his written statement. It is stated that proposed additional statements of facts are necessary for just and fair disposal of the case at hand. The proposed amendment will not prejudice to the respondents. In reply to the aforesaid application, respondent No.1 has stated in his reply that amendment sought by the appellant is frivolous, belated, irrelevant, mala fide and in any way not at all necessary for just and fair disposal of the case at the stage of appeal. The proposed amendment will not prejudice to the respondents. In reply to the aforesaid application, respondent No.1 has stated in his reply that amendment sought by the appellant is frivolous, belated, irrelevant, mala fide and in any way not at all necessary for just and fair disposal of the case at the stage of appeal. The respondent No. 1 prayed for dismissal of the application. 6. I have heared Shri M.G. Upadhyaya learned counsel for the appellant, and Shri B.L. Pavecha learned Sr. Counsel with Shri Aashish Gupta learned counsel for the respondent and Smt. Rashmi Pandit learned counsel for the respondent No.2. The counsel also heared on IA No. 5129/96; seeking amendment in the written statement. The application is filed on behalf of the appellant, under Order VI Rule 17 of the Code. 7. Before considering the appeal on merits, the application IA No. 5129/96 was taken up for consideration first. 8. The counsel for the appellant contended that proposed amendment are based on subsequent event and are necessary for just and fair disposal of the case. The counsel also contended that if the application is allowed, nature of the suit will not change nor any prejudice would be caused to the respondents. The counsel submitted that proposed amendment is bona fide and therefore, the application deserved to be allowed. The counsel relied on the decision of the Apex Court reported in AIR 1975 SC 1409 - Peru Puleti Vanketeshwarwerlu v. Motor and General Traders. 9. In reply, the counsel appearing for respondent No.1 contended that amendment proposed in the application are not related to the subsequent events and the facts proposed in paragraph 1-A of the application are already on record and the parties have led the evidence on the proposed facts. The counsel also contended that the amendments proposed in paragraph 1- B of the application are based on the events arose in the case after execution of the decree of eviction. The counsel also contended that the amendments proposed in paragraph 1- B of the application are based on the events arose in the case after execution of the decree of eviction. The counsel invited my attention to the provisions of section 17 (2) and section 45 (I) of the Act and contended that if the landlord does not occupy the suit-accommodation after execution of the decree for eviction within stipulated period then the tenant has remedy to file an application before Rent Controlling under section 17 (2) of the Act and on the aforesaid grounds, proposed amendments are unnecessary, irrelevant and not necessary to just and fair disposal of this appeal. The counsel, therefore, submitted that application is not based on bona fides and deserved to be dismissed. The counsel relied on decisions of this Court reported in 1996 (I) MPWN SN 102; Rajkumar Singh v. Balkishan and 1985 MPRCJ 251; Mohd. Ishak and others v. Mst. Sarswati Devi and others. 10. Considering rival contentions of the counsel, on perusal of record and the pleadings of the parties, in my view, the amendments proposed in the application are not relevant or necessary to be incorporated at the stage of appeal. On perusal of the plaint, it emerged that the facts proposed in paragraph 1-A of the application are already on record and in corroboration of the aforesaid facts, Manohar (PW 1) and Deepa (PW 3) have stated the facts in their statements. In the aforsaid circumstances, the amendments proposed in paragraph 1-A of the application are not necessary and are accordingly deserved to be rejected. Similarly, I agree with the contention of the learned counsel appearing for the respondents No.1 that amendments proposed in paragraph 10-B of the application are not based on subsequent events arose during pendency of the case but the facts proposed in the aforesaid paragraph are based on the events after execution of the decree of eviction. Therefore, the amendment as proposed in paragraph 1-B of the application are also irrelevant and not necessary for the disposal of the appeal. 11. In Mst. Saraswati Devi's case (supra) while dealing with amendments at appellate stage on alleged subsequent events, this Court has held as under: "The power to order amendment is inherent in Court. Therefore, the amendment as proposed in paragraph 1-B of the application are also irrelevant and not necessary for the disposal of the appeal. 11. In Mst. Saraswati Devi's case (supra) while dealing with amendments at appellate stage on alleged subsequent events, this Court has held as under: "The power to order amendment is inherent in Court. Though the provision of R. 17 should be liberally construed, it is settled principle of law that suits must be tried on the original cause of action and this principle not only govern suits but appeals also. Sometimes, circumstances do change necessiating amendments based upon subsequent events, but the aim of the Court should shorten the span of litigation to prolong. If the prayer for amendment based upon the subsequent events is allowed, it would become necessary to remand the case; fresh issues shall be required to be framed and fresh evidence will have to be recorded. Thus, it will set the clock back from where it has started. The suit was filed on 3.10.1966. A litigation has to end somewhere like a life. Even the wars, since Mahabharat have ended after destruction of life and properties but they had to come to an end. Therefore, for the reasons stated hereinafter, I refuse to allow the proposed amendment contained in IA No. 1939 of 1985, as it is not only malafide but also belated." 12. In view of the aforesaid circumstances and the law applicable, the application (IA No. 5129/96) seeking amendment, filed on behalf of the appellant deserves to be dismissed. It is, accordingly, dismissed. 13. Considering the case on merits, as indicated above, the trial Court allowed the plaintiff's suit for eviction against the appellant and respondent No. 2 (defendant No.2) only on the grounds mentioned in section 12 (1) (b) and section 12 (1) (e) of the Act. For considering the case of the plaintiff under section 12 (1) (b) of the Act, the aforesaid provision is reproduced as under :-. 12. Restriction on eviction of tenants--(1) Notwithstanding anything to the contrary contained in any other law of 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) . . ... . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . '.' . . . . . . . . . . . . . . . . .. . . . . . . . . . (b) that the tenant has whether before or after commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise." 14. On perusal of the aforesaid provision it emerged that if original tenant after entering into an agreement of tenancy with the plaintiff, unlawfully sublets, assigns or otherwise parts with the possession of the suit-accommodation either in part or whole then a decree for eviction can be passed against such tenant from the accommodation given to him on rent. 15. Learned counsel for the appellant contended that in the present case it is not the case of the plaintiff that defendant No. 1 sublet the suit-accommodation to defendant No. 2 and thereby handed over possession of the suit-accommodation to him. The arguments advanced, are two fold. The first contention is that in the plaint allegations, no facts are pleaded for eviction which are necessary to be pleaded as per provisions of section 12 (1) (b) of the Act. The other contention of the counsel is that if it is considered that the facts are pleaded with regard to section 12 (1) (b) of the Act then at the most, the facts constitute the case only a parting with the possession .of the suit-accommodation. The counsel invited my attention to section 14 of the Act and submitted that under section 14 of the Act, the tenant is prohibited from subletting or transferring or assigning of his rights in the tenancy but in the aforesaid said section otherwise parting with the possession of the suit-accommodation is not included. Therefore, the tenant on the facts alleged in the plaint cannot be evicted from the suit accommodation under the provisions of section 12 (1) (b) of the Act. The counsel also submitted that in view of the facts mentioned in the reply to the quit notice, Exh. Therefore, the tenant on the facts alleged in the plaint cannot be evicted from the suit accommodation under the provisions of section 12 (1) (b) of the Act. The counsel also submitted that in view of the facts mentioned in the reply to the quit notice, Exh. P/l2 and the facts stated in the written statement, the defendants have pleaded that a new tenancy from 1.12.1978 is created in favour of the defendant No.2 (respondent No.2) which was being accepted by the plaintiff. As no case of sub-tenancy or unlawful parting with the possession of the suit accommodation is made out, the decree passed by the trial Court under the aforesaid provisions deserves to be demolished. 16. In reply to the aforesaid contention, the counsel for the respondent No. 1 (plaintiff) has submitted that in paragraph 8 of the plaint, the facts constituting the grounds under section 12 (1) (b) of the Act, are specifically pleaded on behalf for the plaintiff. The act of unlawful parting with possession of the suit-accommodation by the original tenant after commencement of the tenancy also gives cause of action for eviction from the suit-accommodation under the aforesaid provisions. The counsel submitted that the Court has rightly considered the provisions of section 12 (1) (b) of the Act and passed the decree for eviction in favour of the plaintiff. The counsel also contended that from the facts and evidence on record, the allegation on the fresh tenancy from 1.12.78 between the plaintiff and defendant No. 2 is not made out. From the admissions of the defendant in the written statement and in the reply to notice, Exh. P/12, a case of unlawful parting with the possession of the suit-accommodation with written consent of the land lord is proved against the defendant and once, the case of subletting or parting with the possession of the suit-accommodation is found proved, the tenant looses protection of section 12 of the Act against the decree for eviction. The counsel also submitted that no evidence is led on behalf of the defendant which proves that possession over the suit-accommodation of the defendant No.2 was not unlawful, and it was by way of tenant under the fresh agreement of tenancy. The counsel also submitted that no evidence is led on behalf of the defendant which proves that possession over the suit-accommodation of the defendant No.2 was not unlawful, and it was by way of tenant under the fresh agreement of tenancy. The counsel also submitted that by mere payment of rent by a person and acceptance of it by the landlord, does not necessarily establish relationship of landlord and tenant between the parties, therefore, even if it is proved that some amount was paid by the defendant No.2 to the plaintiff against the rent of the suit-accommodation, does not create relationship of landlord and tenant between plaintiff and defendant No.2. The counsel relied on the following decisions of the Apex Court and of this Court :- (i) 1977 JLJ 434, Narain v. Illdian Mill Stores, Raipur; (ii) AIR 1975 SC 2156 ; (iii) 1972 JLJ 532 , Motilal Bhatia v. Yusuf AU and others; (iv) AIR 1954 SC 758 , Sheodhari Rai v. Surajprasad and others; (v) AIR 1987 SC 1242 , Ramsarup Gupta v. Bishun Narain; (vi) 1972 JLJ 121 , Ziaul Hara alld others v. Pannalal Nanoomal. 17. In view of the aforesaid submissions and perusal of record, I find that in paragraph 8 of the plaint, the facts pleaded clearly constitute a ground for eviction under section 12 (1) (b)' of the Act, on the allegation of unlawful parting with the possession of the suit-accommodation without written consent of the plaintiff/landlord. The plaint paragraph 8 read as under :- ^^oknh us fdjk;knkjh LFkku ;g izfroknh Øekad 1 dks uSokfld vk'k; ds fy, fdjk;s ls fn;k Fkk ijarq izfroknh Ø-1 us fcuk ys[kh vuqefr ls fdjk;k nkjh LFkku dk vkf/kiR; R;tdj izfroknh Ø-2 ¼es- xtjk xs;lZ fy-½ dks lwiwrZ fd;k vkSj izfroknh Ø-2 ;g fdjk;knkjh LFkku dk miHkksx ,oa mi;ksx ys jgs gSa bl izdkj fdjk;knkjh vuqca/k dks Hkax fd;kA 18. As regards contention of the learned counsel for the appellant on the wordings of section 14 of the Act are concerned, the controversy was considered by the Division Bench of this Court in Satyabhama Devi v. Ramkishore Pandey, reported in 1975 JLJ 57 = 1974 MPLJ 906 . As regards contention of the learned counsel for the appellant on the wordings of section 14 of the Act are concerned, the controversy was considered by the Division Bench of this Court in Satyabhama Devi v. Ramkishore Pandey, reported in 1975 JLJ 57 = 1974 MPLJ 906 . The Division Bench of this Court, after considering provisions of section 12 (1) (b), section 14 and section 43 (3) of the Act has held as under :-- "If the language of section 12 (1) (b) and section 43 (3) of the M.P. Accommodation Control Act is carefully examined it would appear that on account of certain drafting error, the legislative intant has not been properly expressed. In section 43 (3) it is wrongly assumed that section 12 (1) (b) itself prohibits sub-letting, assignment and parting with possession. The prohibition is contained in section 14 so far as subletting and assignment is concerned but section 14 does not cover parting with possession in other manner. The expression "In contravention of clause (b) of section 12 (1)" in section 43 (3) must be read as meaning without the consent of the landlord. From the language of section 43 (3) it is clear that it treats all the three acts of tenants i.e. sub-letting, assigning and otherwise parting with possession alike. Therefore, on a proper construction thereof read with clause (b) of section 12 (I) and section 14 it would appear that all the three acts are unlawful when committed without the previous written consent of the landlord. If the tenant, therefore, parts with possession otherwise than by sub-letting or assignment without the written consent of the landlord he is liable to be evicted." In view of the aforesaid decision of the Division Bench of this Court, the contention of the learned counsel for the appellant, cannot be accepted as the Division Bench has held that if the tenant parts with possession otherwise than by sub-letting or assignment without the written consent of the landlord makes himself liable to be evicted under section 12 (1) (b) of the Act. 19. In 1977 JLJ 434 (supra),. this Court has held that the initial onus of proving unlawful sub-letting in the first instance lies upon the plaintiff. Sub-tenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. 19. In 1977 JLJ 434 (supra),. this Court has held that the initial onus of proving unlawful sub-letting in the first instance lies upon the plaintiff. Sub-tenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. When such circumstances are proved prima facie, the burden placed on the plaintiff is discharged and onus shifts on the defendant to establish positive aspect about the capacity in which the alleged sub-tenant is occupying the premises and that he has not parted with the whole or a part of the tenanted accommodation. In the present case, from admissions of the defendant in the written statement and in reply to notice, Exh. P/12, unlawfully parting with the possession of the suit-accommodation by original tenant/appellant, is primafacie established and as such the burden shifts on defendant to prove that after entering into an agreement of tenancy, the possession of the defendant No.2 of the suit-accommodation is not unlawful. In this regard defendant have contended that fresh tenancy is created between respondent No. 1 and respondent No. 2 (defendant) on the ground that the plaintiff entered into an agreement to sell the suit-accommodation to defendant No. 2 and secondly on the ground of acceptance of some amount from defendant No.2 by way of rent and after filing of the suit also the deposit against arrears of rent was made by the defendant No. 2. The defendants have not led any positive evidence to establish that a fresh tenancy was created between the plaintiff and respondent No.2 (defendant No.2) with effect from 1.12.1978. As indicated ellrlier, once parting with the possession of the suit-accommodation by the original tenant in favour of some other person is prima facie established, the burden shifts on the defendant to prove that his possession over the accommodation is not unlawful. In the instant case, mere payment of rent or deposit in the Court, does not amount to creation of the tenancy between the plaintiff and respondent No. 2 (defendant No.2). The relationship of the landlord and tenant, cannot be established on the basis of a payment of rent as also acceptance of the same by the plaintiff. In the instant case, mere payment of rent or deposit in the Court, does not amount to creation of the tenancy between the plaintiff and respondent No. 2 (defendant No.2). The relationship of the landlord and tenant, cannot be established on the basis of a payment of rent as also acceptance of the same by the plaintiff. The same view was expressed by the Apex Court in Sheodhari Rai's case (supra) wherein it is held that "Payment of rent does not necessarily establish relationship of landlord and tenant. Such payment may only prove permissive occupation not amounting to any right or title to possession." Similar view was reiterated by the Apex Court in Motilal Bhatia's case (supra). 20. In AIR 1990 SC 808 , Pushpa Devi v. Milkhi Ram, while considering definition of tenant under East Punjab Urban Rent Restriction Act, 1949, the Supreme Court has held that for the purpose of avoiding a decree on ground of arrears of rent, the person claiming to be a tenant is also under obligation to deposit rent in Court to avoid a decree for eviction on the aforesaid grounds and for this purpose, the Apex Court has held that the definition of tenant should be construed liberally so as to include a person claiming to be tenant. In the aforesaid case, the Apex Court has held as under :- "Taking into account of the intention of the legislature and the purposes for which proviso was enacted, the obligation to tender the rent under the proviso on the first hearing date does not depend upon the existence of admitted jural relation ship of landlord and tenant. When an action for eviction is brought by the landlord on ground of default, the proviso stands attracted. The benefit of the proviso could be availed of by the tenant and also by those who claim to be the tenant." 21. In view of the aforesaid position of law, by mere payment of rent or deposit in Court, does not amount to create relationship of landlord and tenant between respondent No. I/plaintiff and defendant No.2. As such in absence of any positive evidence on record with regard to creation of tenancy between the respondent No.1 and defendant No.2, it cannot be concluded that defendant No.2 was lawfully in occupation of the suit-accommodation from 1.12.78. 22. As such in absence of any positive evidence on record with regard to creation of tenancy between the respondent No.1 and defendant No.2, it cannot be concluded that defendant No.2 was lawfully in occupation of the suit-accommodation from 1.12.78. 22. It is settled that in case under section 12 (1) (b) of the Act, once the fact is established that original tenant after induction of the tenancy with whom has sublet or assigned or otherwise parted with possession of the accomodation then he looses protection under section 12 of the Act. In AIR 1975 SC 2156 ; Gajanan v. S.H. patel; the Apex Court has held (hat subletting or unlawfully parting with possession of the suit accommodation may exist on the date of the suit or on the date of passing of the decree. A single act of unlawful subletting or parting with possession of the suit-accommodation is sufficient for a decree of eviction against the tenant. In the aforesaid while dealing with the controversy has held as under :- "The provisions of the Act indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of section 13 (1) (e), namely that he has sublet. The language is that if the tenant has sublet, the protection ceases. It cannot be contended that the subletting must continue at the date of the suit for passing the decree for eviction. The tenant's liability to eviction arises once the fact of unlaful subletting is proved at the date of the notice." 23. As a result of the foregoing discussions, I do not find any error of fact or of law, is committed by the trial Court in passing a decree of eviction against the appellant and respondent No.2, under S. 12 (1) (b) of the Act, from the suit accommodation. The findings of the trial Court on issue No.4 with regard to ground under section 12 (1) (b) of the Act, are well founded and based on proper appreciation of facts and application of law, as such requires no interference in this appeal. The findings on Issue No.4 are, accordingly, affirmed. 24. The findings of the trial Court on issue No.4 with regard to ground under section 12 (1) (b) of the Act, are well founded and based on proper appreciation of facts and application of law, as such requires no interference in this appeal. The findings on Issue No.4 are, accordingly, affirmed. 24. On the point of bonafide requirement of the suit-accommodation for the residence of the plaintiff/landlord himself and for his family members, is concerned, the burden lies on toe plaintiff to prove his bona fide requirement and that he has no other reasonably suitable accommodation of his own, in his occupation in the town or city. With regard to availability of any other accommodation of his own, it is admitted that the plaintiff has no accommodation of his own in the city of Indore. The question arises for decision is whether the plaintiff needs the suit-accommodation bona fide. 25. With regard to the bona fide need, position of law is well settled. A mere assertion by the landlord that he requires the suit-accommodation in occupation of his tenant arises on presumption that he genuinely requires the premises for his use. The burden of proof of genuiness or bona fide requirement of the suit-accommodation for his use, lies upon the landlord and the Court is expected to decide the aforesaid fact on the basis of the record objectively. It is also settled that term 'bona fide' or 'genuine' speaks of state of mind of the landlord. Genuineness that proceeds from his reputed sources sincere and not false, fictitious, simulated or spuriqus. In this respect Hon. Supreme Court in the case of Sarwate T.B. v. Nemichalld (1969 JLJ 973 = 1966 MPLJ 26), has held as under:- "The burden of proving that he genuinely requires non-residential accommodation within the meaning of section 4 (h) lies upon the landlord. A more assertion by the landlord that he requires for his use the premises in occupation of the tenant raises no presumption that he genuinely requires the premises for his use. It will be a question of fact in each case whether the onus has been discharged and a finding on this question being one of fact, cannot be interfered within second appeal." 26. It will be a question of fact in each case whether the onus has been discharged and a finding on this question being one of fact, cannot be interfered within second appeal." 26. The Full Bench of this Court in Damodar v. Nandram, 1960 JLJ 473 = 1960 MPLJ 925 , has held as under :- "The word "genuine" means that which proceeds from its reputed source, sincere and not false, fictitious, simulated, spurious. This is the meaning ascribed to the derivative of "genuinely" occurring in section 4 (h) of the Madhya Pradesh Accommodation Control Act. The word "requires" implies that it is more under the force of personal circumstance than under the impulse of desire that the landlord needs the premises, though the element of desire is not altogether absent." Similar principle is reiterated by this Court in Draupadibai v. Premsingh ( 1991 MPLJ 426 , wherein it is held as under :- "The term 'bona fide' or 'genuine' speaks of statement of mind of the landlord. 'genuine' means that which proceeds from his reputed sources sincere, not false, fictitious, simulated or .spurious. So long as the landlord acts in a reasonable manner projecting the case of his need before the Court and if the need is termed as malafide tainted, device for setting at naught the purpose of the law, it has to be respected." 27. Adjudging the plaintiffs case from the above angle, the plaintiff has varied his grounds of the need on changed circumstances arose at different times during long pendency of the suit. As per plaint allegation at the time of institution of the suit, the plaintiff based his claim on the ground that he and his family members are residing in the tenanted premises and his landlord had fled the suit for eviction against him. It was also alleged that after transfer of the plaintiff from Indore to various places viz. Jaipur, Lucknow and Madras, adversely affecting the education of his daughters and for these reasons, he has decided to settle his family at Indore, and therefore, requires the suit-accommodation for his residence and for the residence of his family members. During pendency of the suit, the plaintiff on account of heart ailment, decided to seek voluntary retirement from his service and to shift at Indore and on this ground also he amended his plaint. During pendency of the suit, the plaintiff on account of heart ailment, decided to seek voluntary retirement from his service and to shift at Indore and on this ground also he amended his plaint. It was also pleaded that on his transfer from Bhopal, he was ordered by his employer, to vacate the house provided to him and on this ground the plaintiff prayed for bona fide requirement of the suit-accommodation. The counsel for the appellant submitted that in view of different stands taken by the landlord at different stages, satisfy that the need of the landlord of the suit-accommodation for his residence and for the residence of his family members is not genuine or bona fide. The trial Court has committed an error in deciding issue No. 5 in favour of the plaintiff and in passing the decree for eviction against the tenant under section 12 (1) (e) of the Act. 28. Leaned counsel for the respondent No. 1, has submitted that the test of bonafide need should always be objective and not subjective. The plaintiff had placed all the circumstances which were available at different stages and proved them by adducing the evidence, which prove that the plaintiff/landlord's need was all the time, i.e. from service of quit notice and filing of the suit till today, was always genuine and bona fide. In the instant case, the amendment carried out by the plaintiff in the plaint at different stages only shows that the circumstances have changed at different stages but the bona fide need of the landlord remains as such throughout. Considering the statement of Manohar (PW 1), Geeta (DW 2) and Deepa and different documents Ex. P/] to P126 filed on behalf of the plaintiff, clearly make out the case of genuine requirement of the suit-accommodation in favour of the plaintiff for his residence and for the residence of his family members. The defendants have not led evidence in rebuttal. which indicate that requirement of the suit accommodation is false, fictitious, simulated or spurious and not genuine or bona fide. 29. The defendants have not led evidence in rebuttal. which indicate that requirement of the suit accommodation is false, fictitious, simulated or spurious and not genuine or bona fide. 29. In view of the facts and evidence on record, and the law applicable to the case, I am of the opinion that the trial Court has not committed any error in deciding issue No.5 in favour of the respondent No.1/plaintiff and in passing the decree for eviction against the appellant and respondent No.2 (Defendant No.2) under section 12 (1) (e) of the Act. The finding recorded on issue No.5 also does not require any interference and are, accordingly, affirmed. 30. During the course of argument, learned counsel for the respondent No.1 contended that as per facts stated in the written statements filed on behalf of the appellant and respondent No.2 it emerged that from 1.12.78, appellant/defendant No.1 ceases to be the tenant of the suit-accommodation and left with no rights in the suit-accommodation as a tenant. As such he is not a person affected by the impugned decree of eviction and has no locus standi to file this appeal under section 96 of the CPC against the judgment and decree of the trial Court. 31. In reply to the aforesaid contention, learned counsel for the appellant submitted that the appellant was a party before the trial Court-and the decree for eviction is passed against him, therefore, he had right to file this appeal under section 96 of the CPC. 32. As I have considered the present appeal on merits, I do not find it necessary to consider the aforesaid controversy and record any finding on the point of locus standi of the appellant to file this appeal. 33. In the result, I do not find any substance or merit in the present appeal. It is, accordingly, dismissed with costs and the judgment and decree of the trial Court are affirmed. The appellant shall bear his own cost of this appeal and shall pay the cost of the respondent No.1. Counsel fee, as per scnedule, if certified. Decree be drawn up accordingly.