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2001 DIGILAW 45 (CHH)

Shri Gurucharan Singh v. Premabai Shrivastava

2001-04-19

R.S.GARG

body2001
JUDGMENT R.S. Garg, J. 1. By this appeal the appellant/defendant challenges the correctness, validity and propriety of the judgment and decree dated 22-4-99, passed in regular appeal No. 4-A of 1998, by the-learned Third Additional District Judge, Durg, confirming the judgment and decree dated 1-1-98, passed by the Addl. Civil Judge, Class I, Durg, in Civil Suit No. 58-A of 1997, decreeing the plaintiffs suit and directing eviction of the appellant from the suit premises. 2. The facts in nut-shell are that the land-lady filed a civil suit for eviction of the present appellant, inter alia stating that her grand-sons have attained majority and she being the grand-mother was required to settle them in the life and in the said process, she was requiring the suit premises bona fide for the business prospects of her grand-sons. In Paragraph 3 of the plaint she pleaded that her grand-son Vivek Shrivastava needed the premises. In Paragraph 4, she pleaded that she was in need of the premises for her another grand-son Sandeep Shrivastava and as for the said purpose she did not possess any other reasonable alternative accommodation of her own in the township of Durg, the defendant deserved to be evicted from the suit premises. As an additional ground, in Paragraph 5 of the plaint, it was further pleaded that the tenant had acquired another reasonable suitable accommodation for the purposes of the business, therefore, also he deserved to be evicted. The defendant contested the suit on all possible grounds. After recording the evidence and hearing the parties, the learned Trial Court decreed the suit. 3. Being aggrieved by the said judgment and decree, the appellant preferred First Appeal, as the same proved futile, the defendant has come to this Court under Section 100 of the Code of Civil Procedure. 4. The present appeal has been admitted for hearing on the following substantial questions of law: "(1) Whether on the facts and in circumstances of the case, the suit of the plaintiff/landlord could be decreed for non-residential requirement when the need was not for the son or unmarried daughter or for the person for whose benefit the accommodation was held, but in fact was for the grand-son ? (2) Whether on the facts and in circumstances of the case, the Courts below were justified in granting a decree under Section 12 (1) (i) of the M.P. Accommodation Control Act, admittedly when the premises in dispute are not residential premises ?" 5. Shri Soni, learned counsel for the appellant submits that in view of the language of Section 12 (1) (f) of the Act and its juxta-pose reading with the pleadings raised by the plaintiff/land-lady, the suit for eviction could not be decreed against the present appellant/defendant because the need was not in relation to the land-lady herself or for her major son or for unmarried daughter or for the person for whose benefit the premises were held by the landlady. According to him, as the need of the grandson is not need of landlady, in view of the language employed in Section 12 (1) (f) of the Act, the Courts below were not justified in decreeing the suit. 6. Challenging the decree passed on the ground of Section 12(1) (i) of the Act, learned counsel for the appellant submits that from a very perusal of clause (i) of Section 12 (1) of the M.P. Accommodation Control Act, it would clearly appear that if the tenant builds or acquires or has been allotted some other residential accommodation which is reasonably suitable for his accommodation, then the tenant can be evicted from the premises, but where the tenancy is not for his residential purpose, then provisions contained under Section 12 (1) (i) shall not apply. 7. Shri N.L. Shrivastava and Shri H.B. Agarwal, learned counsel for the respondent, supporting the decree passed by the two Courts below, submit that as the need of the grandson is the need of the landlady and as the grandson was a member of the family of landlady, the Courts below were justified in decreeing the suit. They have also contended that the learned Courts below were justified in granting the decree under Section 12 (1) (i) of the M.P. Accommodation Control Act. They have prayed for dismissal of the appeal. 8. During the course of arguments, learned counsel for the respondent submitted that during the pendency of the suit as the son of the landlady after his retirement from Bhilai Steel Plant, is also unemployed, the need of the son be considered and decree be passed on that ground also. 9. They have prayed for dismissal of the appeal. 8. During the course of arguments, learned counsel for the respondent submitted that during the pendency of the suit as the son of the landlady after his retirement from Bhilai Steel Plant, is also unemployed, the need of the son be considered and decree be passed on that ground also. 9. I have heard the parties at length and have perused the records. 10. It is not in dispute before me that the landlady filed the civil suit projecting the need of the grand-children. Whether the need of the grandchildren can be considered to be the need of landlady, will have to be seen in accordance with Section 12 (1) (f) and Section 2 (e) of the M.P. Accommodation Control Act. 11. Section 12 (1) reads that notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against the tenant for his eviction from any accommodation except on one or more of the grounds only. The grounds on which the tenant can be evicted have been categorised within clause (a) to clause (b). Taking into consideration the need of the landlady or the defaults or lapses of the tenant, the suit for eviction of the tenant can be filed. Beyond these 16 grounds, the law does not permit the eviction of the tenant on any other grounds. At this stage, it would be profitable to quote Section 12 (1) (e), 12 (1) (f) of the M.P. Accommodation Control Act. The said clauses read as under :-- "12 (1) (e). that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned; 12 (1) (f). that the accommodation let for non- residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned." 12. For proper appreciation of the Clause 12(1) (e), it would be useful to refer to Section 2 (e) of the Act. Section 12 (1) (e) of the Act applies to the accommodation which is let for residential purposes. It further says that if such residential accommodation is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he (landlord) is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. The landlord can seek eviction of the tenant from the residential accommodation, if the same is bona fide needed by the landlord to satisfy his need, The terms 'member of his family' has been defined under Section 2 (e) of the Act. Section 2 (e) of the Act reads as under:-- "Section 2 (e). "member of the family" in case of any person means the spouse, son, unmarried daughter, father, grand father, mother, grand mother, brother, unmarried sister, paternal uncle, paternal uncle's wife or widow, or brother's son or unmarried daughter living jointly with or any other relation dependent on him." 13. Section 12 (1) (f) of the Act relates to accommodations which have been let out from non-residential purposes. From the non-residential accommodations, the tenant can be evicted, if the suit premises are needed bona fide by the landlord for the purposes of continuing or starting his business. The tenant can be evicted from the non-residential accommodation if the need is of his major sons or of unmarried daughters. The landlord in such a case would be required to prove that he is the owner of the premises. The tenant can be evicted from the non-residential accommodation if the need is of his major sons or of unmarried daughters. The landlord in such a case would be required to prove that he is the owner of the premises. He will be required to prove further that he or the person, for whose benefit the accommodation is held, if the need is for such person, has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. Projection of the bona fide need in itself would not be sufficient, but the landlord would be required to prove that he is the owner of the premises, he or the person for whose benefit the accommodation is held do not have any other reasonably suitable accommodation of his own in his occupation in the city or town concerned to meet or satisfy the need of the landlord. 14. A comparison of clauses (e) and (f) would make it clear that these clauses use different phraseology; while under clause (c) of Section 12(1) of the Act the need of family member is considered to be the need of landlord; but in view of the phraseology of clause (f) the need of family member cannot be considered to be the need of landlord. 15. Under clause (f) of Section 12 (1) of the Act, a decree for eviction of tenant from the non-residential accommodation can be granted if the Court is satisfied that the said premises are needed by the landlord for the purpose of continuing or starting his business. Undisputedly, in the present case, the landlady has not come with the pleadings nor has led any evidence [o say, show or suggest that the landlady herself needs the premises either for continuing her business or starting a new business. 16. The tenant in the alternative can be evicted from the premises, if the need is for her major son or unmarried daughter. There is no dispute before me that on the date of the suit, the landlady did not plead that the premises were bona fide needed to meet the requirements of her major son or unmarried daughter. If the need is neither of the landlady nor of her major son, nor of her unmarried daughter, then the suit could not be filed taking advantage of Section 12(1) (f) of the Act. 17. If the need is neither of the landlady nor of her major son, nor of her unmarried daughter, then the suit could not be filed taking advantage of Section 12(1) (f) of the Act. 17. If it was pleaded by the landlady that she was holding the premises for someone else and that somebody needs the premises bona fide and such somebody had no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned then also suit could be filed but present is not a case like that. 18. If the four contingencies or the grounds on which the tenant can be evicted from the suit premises are not in existence, then the suit could not be decreed. In the opinion of this Court, the two Courts below were unjustified in granting the decree under clause (f) of Section 12 (1) of the Act. The decree based on the ground of Section 12 (1) (f) of the Act can not be allowed to stand, it deserves to and is accordingly set aside. 19. So far as the grant of decree under clause (i) of Section 12 (1) of the Act is concerned, the same, in the opinion of this Court, is absolutely illegal and is contrary to law. 20. For proper appreciation and application of Section 12 (1) (i) of the Act, it would be necessary to refer to the language employed under clause (i) of Section 12 (1) of the Act. The said clause reads as under: "Section 12 (1) (i). that the tenant has whether before or after the commencement of this Act, built, acquired vacant possession of, or, been allotted an accommodation suitable for his residence;" 21. For seeking a decree on the foundation of clause (i) of Section 12 (1) of the Act, the landlady had to prove that the tenant had built an accommodation suitable for his residence or the tenant has acquired vacant possession of an accommodation suitable for his residence of the tenant has been allotted an accommodation suitable for his residence. 22. At this stage, I would not enter into the controversy as to words 'an accommodation suitable for his residence' would apply to the phrase 'been allotted' or it would apply to the entire phrase 'built, acquired vacant possession of, or, 'been allotted'. 22. At this stage, I would not enter into the controversy as to words 'an accommodation suitable for his residence' would apply to the phrase 'been allotted' or it would apply to the entire phrase 'built, acquired vacant possession of, or, 'been allotted'. I am required to concentrate on one word and the said word is 'residence'. Clause (i) of Section 12(1) of the Act would apply to case where the accommodation was let out to the tenant for residence. When the law docs not say that in a case of non-residential accommodation, provisions of Section 12 (1) (i) can be applied, then application of Section 12 (1) (i) to a case where premises were let out for non-residential purposes would not be only contrary to law, but would be violating the law itself. When Section 12 (1) (i) clearly speaks that the provisions would apply to a residential accommodation, where the tenant has built, acquired vacant possession of, or, been allotted an accommodation suitable for his residence, then to say that because the tenant has acquired some non-residential accommodation which is suitable for his business, therefore, he is liable to be evicted, would be contrary to law. The very language of Section 12 (1)(i) leaves no doubt that it would not apply to non-residential accommodation. The two Courts below did not try to appreciate the distinction contained under Section 12 (1) (e) and 12 (1) (f) nor the true spirit of Section 12 (1) (i) of the M.P. Accommodation Control Act. 23. At this stage, learned counsel, for the respondent submits that during the pendency of the suit, the need of the son has come into existence, therefore, the application for amendment be allowed and the need of the son be considered. 24. In the opinion of this Court, on the ground of need of the son, the landlady will have a right to file a fresh suit. Such an amendment cannot be allowed to be incorporated in the plaint which in fact did not show the cause of action. It would be too-much to say that the suit which was not maintainable on the date of its institution, should be tried because of some subsequent event which came into existence after long lapse of time. Even otherwise grant of the amendment would necessitate a consequential amendment and remand of the case for fresh trial. It would be too-much to say that the suit which was not maintainable on the date of its institution, should be tried because of some subsequent event which came into existence after long lapse of time. Even otherwise grant of the amendment would necessitate a consequential amendment and remand of the case for fresh trial. The pleadings and evidence on foundation of which no decree can be granted will remain on records and burden it. Remand in case like present would not be justified. The things should come to an end at some stage. After all enough is enough. I find no reason to grant the said application. It is rejected. 25. The decrees passed by the two Courts below deserve to and are accordingly set aside. The parties are directed to bear their own costs throughout. The amount of rent deposited by the tenant shall be paid to the landlady. For the sake of repetition, it is clarified that the landlady shall be free to institute a suit in accordance with law on the ground of bona fide need of her son. 26. A decree be drawn up accordingly.