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Madhya Pradesh High Court · body

2005 DIGILAW 887 (MP)

Tirathram Bhasin v. Shiv Shankar Goyal

2005-08-19

SUBHASH SAMVATSAR

body2005
JUDGMENT Heard on the question of admission. This appeal is filed by the tenant challenging judgment and decree passed by the two Courts below whereby the suit filed by the respondent landlord under section 12 (1) (f) of the M.P. Accommodation Control Act (herein after referred to as 'the Act') is decreed. Brief facts of the case are that the respondent-plaintiff filed the present suit for ejectment against the present appellants alleging that the plaintiff is owner of house situated near old High Court, Lashkar. This house is purchased by the plaintiff on 4.9.1985. The defendant-appellant is tenant in the said house paying rent at the rate of Rs. 600/- per month. According to the plaintiff defendant has paid rent upto 3.9.2000. Present suit was filed on the ground of section 12 (10 (f) of the Act and other grounds. However, as the two Courts below have decreed the suit only on the ground of section 12 (1) (f) of the Act, this Court need not go into other questions. As regards, the ground of section 12 (1) (f) of the Act, plaintiff has pleaded that he wants the suit accommodation for starting reception counter for the business of furniture. As regards his business of furniture, he will start the said business in the accommodation adjacent to the tenanted premises which is in possession of other tenant against whom also he has filed a suit for ejectment. Said suit is still pending at the trial stage. Two Courts below have concurrently found that plaintiff requires the suit accommodation for starting the reception counter of his business and plaintiff does not have any other alternative accommodation of his own in the city, hence decreed the suit. First contention raised by counsel for the appellant is that the need alleged by the plaintiff is not a need in praesenti. According to the counsel as long as accommodation which is in possession of other tenant is not vacated. the present plaintiff cannot use the accommodation vacated by him for starting the reception counter as reception counter will be required only when he starts the business of furniture which can be started only when the other tenant vacates the premises. According to the counsel as long as accommodation which is in possession of other tenant is not vacated. the present plaintiff cannot use the accommodation vacated by him for starting the reception counter as reception counter will be required only when he starts the business of furniture which can be started only when the other tenant vacates the premises. It is urged that at this stage no-one can see how much time shall be required for vacating the suit premises, hence the present suit be dismissed as the need is not pressing need or a praesenti need. For this purpose counsel for appellant has relied on the judgment of apex Court in the case of Deella Nath v. Poorall Lal, 2001 (2).JLJ 196 = (2001) 5 SCC 705 . In para 15 of the said judgment the apex Court has laid down that the need of the plaintiff must be in praesenti. However, considering the facts and circumstances of the case that the plaintiff in the present case has not only filed the suit against the present defendant but has also filed the suit against the other tenant if cannot be said that the need of the present plaintiff is not the praesenti need because plaintiff has taken simultaneous action for ejectment against the two tenants which shows that he requires both the accommodation for starting his business. Only because trial in the other suit is delayed it cannot be held that the need of the present plaintiff does not exists today. The another judgment relied by Shri N.K. Jain, Senior counsel for the appellant is in the case of Ramprakash Kdhli v. Dr. Omprakash, passed by this Court in F.A. 27/02. In that case this Court has reversed the judgment and decree passed by the trial Court on the ground of bonafide need. In that case also two separate suits were filed by the plaintiff against the two tenants alleging that he required both the accommodation for starting his business. Out of the two suits one suit was dismissed in default 15 years back and the plaintiff has stated in his cross-examination that he is not aware of the fact that his one of the suit was dismissed in 1987 i.e. 15 years prior to his statement. Considering this fact the Court found that plaintiff has not approached the Court with clean hands. Considering this fact the Court found that plaintiff has not approached the Court with clean hands. It is not expected from the landlord who requires his suit accommodation bona-fide for starting his business, kept mum for 15 years after dismissal of his suit against tenant and, therefore, negatived the bonafide need. This is not the situation in the present case. Next question raised by counsel for appellant is that some of the portion left to him is for residence. Plaintiff in the plaint has also pleaded his residential need whici1 is not found proved. Hence, decree for ejectment cannot be passed against him. For this purpose learned counsel for the appellant has relied upon the judgment of apex Court in the case of Shabir Ahmad v. Sham Lal and another. AIR 2002 SC 1036 . From perusal of the said judgment it appears that the principle laid down by the apex Court IS that a residential premises cannot be get vacated" nonresidential need and vice verse. In the present case plaintiff has pleaded both his needs. Thus, according to the pleadings it appears that the suit accommodation was let for composite purposes. Division bench of this Court in the case of. Jagjit Singh v. Jagdishchandra, 1982 JLJ 319 has laid down that in a case of composite tenancy if it is established that the landlord requires non-residential part of the accommodation or residential part of the accommodation the decree for eviction of a tenant from the entire primises can be passed. Thus, in the light of the division bench judgment of this Court if plaintiff has proved his need for non-residential accommodation and the accommodation is let for composite purpose, plaintiff is entitled to decree against the whole premises. Next question urged by counsel for appellant is that the plaintiff is a Contractor and, therefore, it is not expected that he will start business of furniture. However, PW1 plaintiff in his statement has stated that due to his old age now it is not possible for him to carryon business of Contractor and, therefore. he wants to start business of furniture. This statement is recorded in para 21 of his statement and the two Courts below after considering these statement held that the plaintiff requires the suit accommodation for starting a question of fact which cannot be interferred in exercise a f powers under section 100 CPC. he wants to start business of furniture. This statement is recorded in para 21 of his statement and the two Courts below after considering these statement held that the plaintiff requires the suit accommodation for starting a question of fact which cannot be interferred in exercise a f powers under section 100 CPC. As no substantial question of law is involved in the appeal, appeal is, therefore, dismissed.