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1999 DIGILAW 878 (MP)

Radhey Shyam Soni v. Kamta Prasad Shukla

1999-10-28

S.P.KHARE

body1999
JUDGMENT S.P. Khare, J. 1. This is a second appeal by the defendant under Section 100 C.P.C. The following question of law was formulated by the order dated 29.4.1997 at the time of admission of this appeal :- Whether the lower appellate Court was right in granting a decree under Section 12 (1) (f) and 12 (1) (h) of the M.P. Accommodation Control Act, 1961 as pleaded by the respondents. 2. There is concurrent finding of fact of the trial Court and the first appellate Court that the ground for eviction under Section 12 (1) (f) of the M.P. Accommodation Control Act, 1961 has been established. It has been found that the suit accommodation had been let out for non-residential purpose i.e. for a shop and it is required bonafide by the plaintiff for carrying on the business of general stores by his two major sons and for this purpose he has no other reasonably suitable non-residential accommodation of his own in the city. 3. In this appeal it has been argued on behalf of the appellant that the plaintiff has not pleaded in his plaint that he has no other reasonably suitable non-residential accommodation of his own for the business of his sons. It is pointed out that it is admitted that the plaintiff has in his possession two rooms on the first floor and these are suitable to fulfil the need of the plaintiff's sons as the business can be carried on in those rooms meant for non-residential purpose. The first appellate Court has held that there is no shop of general stores at Fort Road, Rewa on the first floor. The evidence has been adduced by both the sides on the question of alternative accommodation as that was specifically the subject matter of issue no. 1 and therefore it is not of much significance that the same was not specifically pleaded in the plaint. The Court cannot be asked to make a hyper-technical approach. In Murugesan Vs. Ramallngam 1995 Supp (3) SCC 107 and Patny Vs. Dundoo (1994) 4 SCC 734 it has been held by the Supreme Court that the omission to plead specifically regarding the alternative accommodation available with the landlord is not fatal if no prejudice is caused to the tenant. The Court cannot be asked to make a hyper-technical approach. In Murugesan Vs. Ramallngam 1995 Supp (3) SCC 107 and Patny Vs. Dundoo (1994) 4 SCC 734 it has been held by the Supreme Court that the omission to plead specifically regarding the alternative accommodation available with the landlord is not fatal if no prejudice is caused to the tenant. In the present case both the parties were alive to the issue whether the accommodation available on the first floor is reasonably suitable for the business need of the two sons of the plaintiff. The question is whether the accommodation on the first floor is reasonably suitable for running the business of general stores by the two sons of the plaintiff. That question has been answered in the negative by both the courts. It is well known that the shop of a general stores on the ground floor would attract more customers than the shop of the first floor. Therefore, there is nothing unreasonable if the plaintiff requires the shop on the ground floor for the business of his major sons. The accommodation on the first floor even if it is of non-residential nature is not suitable for the business of general stores. Recently the Supreme Court in S.S. Gupta Vs. M.C. Gupta AIR 1999 SC 2507 after considering all the earlier case law of this Court and the Supreme Court has held that once the Court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. Though these observations have been made in the context of Section 12 (1) (e) of the Act same would apply while considering the case under Section 12(1)(f)of the Act. 4. The appellants had submitted an application on 21.9.1999 for framing additional substantial questions of law on the points mentioned above. That is not considered necessary as those are covered by the question which has already been formulated by this Court at the time of the admission of the appeal and the answer to that question has been given above. The plaintiff after obtaining possession of the accommodation in pursuance of the decree based under Section 12 (1) (f) the Act can always re-build or re-construct that accommodation according to his requirement and then occupy the same. There is no legal impendiment in doing so. 5. This appeal is dismissed. Appeal dismissed