Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 1062 (MP)

Bhaiyalal v. Basanti Bai

2000-09-26

S.C.PANDEY

body2000
This is an appeal under Section 100 of the Code of Civil Procedure, filed by the defendant/tenant against the judgment and decree dated 13.3.1991 passed by the District Judge, Bhopal, in Civil Appeal No. 34-A/90, arising out of the judgment and decree dated 19.12.1986, passed by Vth Civil Judge Class-II, Bhopal, in Civil Suit No. 260-A/84. The respondents filed a suit for ejectment of the appellant from the suit-shop, situate at Shahjehanabad. Bhopal, under Section 12 (1)(f) of Madhya Pradesh Accommodation Control Act 1961 (henceforth 'the Act'), stating that they had no alternative accommodation of their own and the suit-shop is bonafide required for opening a tea-shop by the respondent No.2 Santosh Kumar Jain. There were other grounds also for eviction under Section 12 (1) (b) and 12(1)(c) of the Act. The respondents/plaintiffs had stated that they wanted to construct a new shop where the present shop is situate, for the business of the respondent No.1. They wanted to use the lower portion for the purpose of tea-shop and the upper portion as residence. It was further alleged that it was not possible to get the new construction done without getting the suit-shop vacated. However, there was express plea to the effect that the respondents shall live in the first floor of the shop and they will use the ground floor for the purpose of hotel; and for this purpose they required the suit-shop. It was also pleaded that the respondent wanted to get the shops of the adjoining tenants also vacated. The appellant/defendant, in his written statement, opposed the plea of the respondents/plaintiffs on each and every ground. The learned Trial Judge, inter alia, framed the issue on the question of Section 12 (1)(h) of the Act and decreed the suit. So far as the other grounds mentioned by the respondents in their plaint, under Sections 12 (1)(f) and 12 (1)(c) were concerned, the learned Trial Judge rejected the plea of the respondents on these grounds. In appeal, the lower Appellate Court confirmed the finding and conclusion of the learned Trial Court and maintained the order of passing a decree under Section 12(1)(h) of the Act, passed by the Trial Court, in favour of the respondents/plaintiffs. In appeal, the lower Appellate Court confirmed the finding and conclusion of the learned Trial Court and maintained the order of passing a decree under Section 12(1)(h) of the Act, passed by the Trial Court, in favour of the respondents/plaintiffs. This Court, by order dated 22.4.1991 admitted this appeal and framed the following substantial questions of law for consideration :- "(1) Whether the requirement of S. 12(7) of the M.P. Accommodation Control Act are required to be complied with by the plaintiff before seeking eviction u/s. 12 (1)(h)? (2) Whether without recording a finding as to the application of S. 12 (7), a decree for eviction could be passed u/s. 12 (1)(b) of the M.P. Accommodation Control Act? (3) Whether it was incumbent upon the trial Court to have mentioned the time during which the tenant could have taken possession of the premises and the landlord should have completed the reconstruction of the building?" Subsequently, on 11.4.2000 the following additional substantial question of law was framed :- "Whether the plea raised by the respondents for eviction of the appellant is covered by Section 12 (1)(f) of Madhya Pradesh Accommodation Control Act. 1961 or it is a plea under Section 12(1)(h) of the said Act as per the decision of the Supreme Court in Ramniklal Pitambardas Mehta v. indra Daman Amratlal Seth. AIR 1964 SC 1676 ?" In this appeal, there is also a cross-objection on record, filed by the respondents on 3.2.1992 regarding the rejection of their claim on other grounds under Section 12(1)(c) and 12(1)(f) of the Act by the Lower Appellate Court. This cross-objection was reported to be barred by six days. The respondents had, therefore, also filed I.A. No. 1796/92 under Section 5 of Limitation Act on 26.2.1992 for condoning the delay in filing the cross-objection, to which the appellant had also filed his reply on 4.8.1992. Therefore. before framing the aforesaid additional substantial question of law on 11.4.2000, having heard the learned counsel for the parties on the question of condonation of delay in filing the cross-objection by the respondents. I.A. No. 1796/92 was rejected and so also the cross-objection was too dismissed by this Court being barred by time. Therefore, the subsequent substantial question of law framed by this Court on 11.4.2000 has to be decided first. The Supreme Court. I.A. No. 1796/92 was rejected and so also the cross-objection was too dismissed by this Court being barred by time. Therefore, the subsequent substantial question of law framed by this Court on 11.4.2000 has to be decided first. The Supreme Court. in the case of Ramniklal Pitambardas Mehta v. indra Daman Amratlal Seth, reported in AIR 1964 SC 1676 . had pointed out that a ground like similar to one mentioned in Section 12(1)(h) of the Act is for letting out to the tenant the accommodation after reconstruction. The tenant is required to vacate the house for building or rebuilding or making thereto any substantial additions or alterations because the landlord alleges and proves that they cannot be carried out without the accommodation being vacated. Under Section 18 of the Act there is a provision for recovery of possession on the allegation of the tenant if a decree under Section 12(1)(h) of the Act is passed. Therefore, it is obvious that after building, rebuilding or making any substantial additions or alterations to the suit-shop, the appellant could claim back the possession of the suit-shop, if the plea of the respondents/plaintiffs was under Section 12(1)(h) of the Act. However, it is apparent from the pleadings, as already stated, that the respondents wanted to get a decree under Section 12(1)(f) and wanted to reconstruct the suit-shop for opening a tea-shop for the respondent No.2 Santosh Kumar Jain. There case was that they wanted to demolish and then rebuild the suit-shop for carrying out the business by the respondent No. 1. Obviously, they did not want to re-let the suit-shop after its reconstruction. In view of these pleadings. there was no question of getting the decree for eviction under Section 12(1)(h) of the Act. The view of this Court is supported by the decision of the Supreme Court in the case of Ramniklal Pitambardas Mehta (supra) in which their Lordships of the Supreme Court, considering a similar ground as is mentioned in Section 12(1)(f) of the Act, laid down as follows, at page 1679, paragraph 16 :- “(16) The provisions of Cl. (hh) cannot possibly apply to the case where a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish premises and to erect a new building on them. The provisions of Cl. (hh) cannot possibly apply to the case where a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish premises and to erect a new building on them. The provisions of Cl. (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants. ......” In view of the finding recorded by this Court that there was no plea under Section 12(1)(h) of the Act raised by the respondents, the substantial questions No. (1), (2) and (3) framed by this Court on 22.4.1991 need not be answered. So far as the additional substantial question of law, framed by this Court on 11.4.2000 is concerned. it is answered by saying that the respondents had not raised any plea under Section 12(1)(h) of the Act; and since the cross-objection filed by the respondents against the finding recorded by the Lower Appellate Court under Section 12(1)(f) of the Act, has already been rejected by this Court on the ground of limitation, it is not possible to consider the plea of the respondents under Section 12(1)(f) of the Act in this appeal. The result is that this appeal succeeds and is hereby allowed. The judgment and decree of the Lower Appellate Court as well as that of the Trial Court are hereby set aside and the suit filed by the respondents/plaintiffs is dismissed. No costs.