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2002 DIGILAW 1086 (MP)

Sitaram Patel v. Bipin Chand Jain

2002-12-12

K.K.LAHOTI

body2002
Judgment ( 1. ) PLAINTIFF aggrieved by judgment and decree passed by the Lower Appellate Court has filed the present appeal by which the Appellate Court reversing the judgment and decree of the Trial Court dismissed the suit of appellant. ( 2. ) THIS appeal was admitted on 13-4-1994 on following substantial question of law:-" whether the Lower Appellate Court was right in reversing the judgment and decree passed by the Trial Court ?" ( 3. ) TO appreciate the contentions of the parties, it is necessary to state facts of the case. Plaintiff filed a suit in respect of non-residential accommodation on the ground that he wants to start a provisional goods shop in the suit accommodation. On 30th June, 1980, he retired and has no other non-residential accommodation in his possession of his own in the City of Jabalpur. On this ground, the suit was filed under Section 12 (1) (f) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as "the Act" ). Though the suit was also filed under Section 12 (1) (a) and (c) of the Act, but the aforesaid grounds were not found proved by the Trial Court nor the appellant has filed cross-objection before the Lower Appellate Court. Consequently, facts relating to these grounds are not stated. ( 4. ) THE respondent contested the suit on the ground that the plaintiff is not having any bona fide necessity for the suit accommodation. In Para 2 of the written statement, he stated that the plaintiff is having accommodation in his possession, he may do his business in it which is adjoining to the suit accommodation. Apart from this, the plaintiff is having four rooms in which he and his family members are residing. On these grounds the suit was contested. ( 5. ) THE Trial Court after recording evidence found that adjoining rooms are residential portion in which plaintiff and his family members are residing and found that the bona fide necessity in respect of the suit accommodation is proved. Consequently, the suit was decreed. ( 6. ) AGGRIEVED by the judgment and decree of the Trial Court, the defendant filed an appeal. Consequently, the suit was decreed. ( 6. ) AGGRIEVED by the judgment and decree of the Trial Court, the defendant filed an appeal. The Lower Appellate Court found that in the back side rooms the plaintiff can reside and in the adjoining room in which he is residing, can do his business as this room is situated on the main road having opening of 8 feet and this room is in the shape of shop. Consequently, the Lower Appellate Court found that the plaintiff is having alternative accommodation. Consequently, the appeal was allowed and the suit was dismissed. ( 7. ) THE learned Counsel appearing for the appellant/plaintiff submits that the Lower Appellate Court erred in reversing the judgment of the Trial Court. There is evidence in the case that the adjoining room is a residential, which is being used by the plaintiff for his residence. The relationship between plaintiff and his wife is not cordial and both are residing separately since long. The internal portion of the house is in possession of the wife and the plaintiff is residing in one room. This residential room cannot be said to be an alternative accommodation. ( 8. ) THE learned Counsel appearing for respondent supported the order passed by Lower Appellate Court and contended that plaintiff is having this room which could be converted into non-residential accommodation. This may be taken into consideration for considering the need of the plaintiff in respect of non-residential accommodation. ( 9. ) CONSIDERING the rival contentions raised by the parties, it is necessary to look into the provisions of Section 12 (1) (f) of the Act, which reads as under :-" (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 of 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. " ( 10. ) LOOKING to the aforesaid provision, if the plaintiff is having other reasonable suitable non-residential accommodation of his own in his possession in the city, it will be treated as an alternative accommodation. " ( 10. ) LOOKING to the aforesaid provision, if the plaintiff is having other reasonable suitable non-residential accommodation of his own in his possession in the city, it will be treated as an alternative accommodation. Merely such residential accommodation of the plaintiff, could be used as non-residential accommodation, that will not be considered as an alternative accommodation for ascertaining the need of plaintiff under Section 12 (1) (f) of the Act. Statutory provision is specific that the landlord has no other reasonably suitable non-residential accommodation of his own in his occupation in the city. The plaintiff cannot be compelled to convert his any residential accommodation into a non-residential accommodation nor the defendant-tenant can say that any residential accommodation in the possession of the plaintiff be converted into as non-residential accommodation just to negative the need of the plaintiff. From the perusal of Para 2 of the written statement, the defendant has taken following defence :- ". . . . . . . . . . It is specifically denied that the plaintiff has no other suitable non-residential accommodation of his own in the City of Jabaipur for business purpose. The plaintiff has got in his possession the premises shown by green colour in the plaint map, which are absolutely suitable for business purpose. Besides, this room, which opens on the road, there are four other rooms for residence of plaintiff and his family members. Besides these rooms, the plaintiff has got court-yard, latrine and bath room. If the plaintiff at all desires to start general merchant shop, he can easily do so in the room, which is shown by green colour in the plaint. . . . . . . . . " ( 11. ) FROM the perusal of the written-statement also it is apparent that the defendant has not taken any such plea that the aforesaid room is a non-residential accommodation in nature and until and unless the defendant shows it non-residential, the suit of the plaintiff cannot be dismissed. From the perusal of the evidence of D. W. 1, he specifically admitted this fact that the plaintiff is carrying on tailoring work in the same room in which he is residing, and he could do the general merchant business in the same room in which he is residing. From the perusal of the evidence of D. W. 1, he specifically admitted this fact that the plaintiff is carrying on tailoring work in the same room in which he is residing, and he could do the general merchant business in the same room in which he is residing. From the perusal of the aforesaid, it is apparent that the room is a residential room and the same cannot be treated as non-residential accommodation. In this case, Commission was issued to inspect the house. He has reported that in the said room plaintiff is residing. In this regard, the respondent has not asked any question from the Commissioner when he appeared in the witness box as a Court witness, though previously defendant had objected to the Commissioners report. In view of the inspection of the Commissioner also, it is apparent that the aforesaid room is a residential accommodation. ( 12. ) IN view of the aforesaid, the Lower Appellate Court has wrongly taken into consideration the residential room as alternative accommodation for non-residential purpose and erred in reversing the judgment of the Trial Court. The judgment and decree passed by the Appellate Court is set aside and that of the Trial Court decreeing the suit of the plaintiff under Section 12 (1) (f) of the Act is upheld. This appeal is allowed with cost. ( 13. ) THE respondent is directed to vacate the suit accommodation within a period of four months from today on following conditions :- (1) That the respondent will file an undertaking before the Trial Court within a period of one month from today that he will vacate the suit accommodation on or before 15th April, 2003 peacefully without creating any hindrance or third party interest; (2) That he will deposit the entire arrears of rent and cost incurred in the Court below within a month and will continue to pay rent regularly as required under Section 13 of the Act. ( 14. ) IN case of default, the appellant will be entitled to execute the decree forthwith. Counsels fee Rs. 1,000/- if certified.