Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 705 (MP)

Goverdhan v. Santosh Kumar

2006-05-15

K.K.LAHOTI

body2006
JUDGMENT 1. This appeal is by tenant who suffered a decree of eviction under section 12(1)(d)(f) and (g) of M.P. Accommodation Control Act, 1961 (hereinafter referred as "Act" for short). The appeal is heard on admission. 2. This judgment and decree has been assailed by the tenant on following grounds: (i) That though there is decree for eviction under section 12(1)(f) of the Act, but in fact the suit was filed for the bona .fide necessity to start the business of Mahesh Kumar. During the pendency of appeal, Mahesh Kumar died so the respondents filed an application to amend the pleadings by showing the need of Santosh Kumar, but this application was not allowed by the appellate Court. Thereafter the appeal filed by the tenant was dismissed which was challenged in Second Appeal No. 98/1996. By judgment dated 2.8.2004 the matter was remanded by the High Court to the lower appellate Court to decide it afresh. But the appellate Court again granted the decree. As the son of landlord, whose need was pleaded, has died during the pendency of appeal then the need, if any, has vanished and no decree under section 12(1)(f) of the Act may be passed. (ii),That under section 12(1)(d) of the Act it is necessary that the accommodation should not be used by the tenant immediately preceding 6 months from the date of filing of the suit, but in this case, the landlord has failed to plead and prove this ground and no decree ought to have been passed against the tenant on this ground. (iii) The trial Court had not granted decree under section 12(1)(d), but granted decree only under section 12(1)(f) & (h). The landlord had not filed any cross-objection or cross-appeal but the appellate Court erred in granting decree under section 12(1)(d) of the Act. So far as the ground under section 12(1)(g) is concerned, there is no pleading and in fact the pleadings relate to the ground under section 12(1)(h) while the decree has been passed under section 2(1)(g). It is submitted by the appellant that this appeal may be admitted for tinal hearing and the judgment and decree passed by the Court, below may be set aside. 3. It is submitted by the appellant that this appeal may be admitted for tinal hearing and the judgment and decree passed by the Court, below may be set aside. 3. Learned counsel appearing for respondent" supported the judgment and decree and submitted that though the suit was filed for bona .fide necessity of Mahesh, but he died during the pendency of second appeal on 29.6.1992. As the decree was passed in favour of landlord for the bona fide need, the said need is still continuing and Santosh Kumar who is the real brother of Mahesh Kumar shall continue the business. It is submitted that once a decree on the ground of bona fide necessity is passed, it cannot be reversed merely on the ground of death of a person whose need was found proved by the trial Court and landlord is entitled for the fruits, reliance is placed to the apex Court judgment in Shakuntalabai and others v. Narayan Das and others [2004(2) Vidhi Bhasvar 117= AIR 2004 SC 3484 ]. Shri S.A. Sobhani submitted that so far as the ground under section 12(1)(g) is concerned he is not pressing it, but so far as ground under section 12(1)(d) is concerned, it is proved that the suit shop was not used without any reasonable cause for which it was let for a continuous period of six months immediately preceding the date of filing of suit for the recovery of possession. It is concurrent finding of fact, which needs no interference. It is submitted that this appeal is without merit, does not involve any substantial question of law and may be dismissed at the admission stage itself. 4. To appreciate rival contention of the parties it will be appropriate to state facts of the case. Following facts are not in dispute: (i) The suit was filed for the bona fide necessity of Mahesh Kumar for his tailoring business. The trial Court vide judgment and decree dated 16.3.1995 decreed the suit holding that the suit accommodation is bona fidely required by the landlord for tailoring business of his major son Mahesh Kumar. The judgment and decree passed by the trial Court was assailed by the tenant in regular Civil Appeal No. 51 A/ 1995. The appellate Court affirmed the decree under section 12(1)(f) for the bona fide necessity of Mahesh Kumar. The judgment and decree passed by the trial Court was assailed by the tenant in regular Civil Appeal No. 51 A/ 1995. The appellate Court affirmed the decree under section 12(1)(f) for the bona fide necessity of Mahesh Kumar. Against the appellate Court judgment, second appeal was preferred and the High Court found that the lower appellate Court has not dealt with. the question of eviction on the ground under section 12(1)(d). The matter was remitted to the lower appellate Court for rehearing the arguments and afresh decision in accordance with law. It will be pertinent to mention here that during the pendency of second appeal, Mahesh Kumar died and the landlord filed an application seeking amendment pleading that the need is still continuing and in place of Mahesh Kumar another son Santosh will open the shop of tailoring, but the aforesaid application was not considered in the second appeal, but the matter was remanded. (ii) On 2.8.2004 the matter was remanded by the High Court and the lower appellate Court by the impugned judgment and decree affirmed the finding of trial Court and granted decree under section 12(1)(d), (f) and (g) of the Act. 5. So far as the death of Mahesh Kumar is concerned, the law is well settled by the apex Court in Shakuntala Bai (supra), wherein the apex Court considering the death of landlord for whose necessity suit was decreed, during the pendency of appeal held thus: "14. Sub-section (1) of section 12 of the Act says "no suit shall be filed in civil Court against a tenant for the eviction....." The language employed does not say "no decree shall be passed ......." So the bar created is against filing of the suit except on one of the grounds enumerated in clauses (a) to (p) of the sub-section, therefore what is to be seen is whether the suit was validly filed i.e., whether on the date of filing of the suit one of the grounds was made out. A suit validly filed cannot be scuttle or held no longer maintainable in absence of any specific provision to the effect. Therefore, the principle that "the need of the landlord must exist till the decree for eviction is passed by the last Court and attains finality" can even otherwise have no application here in view of the express language used in the section. 15. Therefore, the principle that "the need of the landlord must exist till the decree for eviction is passed by the last Court and attains finality" can even otherwise have no application here in view of the express language used in the section. 15. As the preamble shows the Madhya Pradesh Accommodation Control Act, 1961 has been enacted for expeditious trial of eviction cases on the ground of bona fide requirement of landlords and generally to regulate and control eviction of tenants. If the subsequent event like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed' without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken in fructuous and colossal waste of public time. There is no warant for interpreting a Rent Control legislation in such a manner the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come." 6. Now in the light of law laid down by the apex Court facts of the present case may be seen. In this case Mahesh Kumar whose need was pleaded by the landlord died during the pendency of SA No. 981l996. The landlord filed an application under Order 6 Rule 17 CPC, showing that the aforesaid need is still continuing and the landlord's another son Santosh Kumar will continue with the shop of tailoring which is being run in another tenanted accommodation. Before the lower appellate Court it is stated by the landlord that the suit shop is still required by the landlord for continuing the aforesaid tailoring business which will now be carried on by another son Bhagwandas. The lower appellate Court affirmed the aforesaid decree on the ground that the landlord's son is carrying on the tailoring business in another tenanted accommodation and the need is genuine. The lower appellate Court affirmed the aforesaid decree on the ground that the landlord's son is carrying on the tailoring business in another tenanted accommodation and the need is genuine. In this regard the finding recorded by the appellate Court in the impugned judgment and decree may be seen. The appellate Court in para 18 to 23 has considered this aspect at length. The appellate Court has found that the landlord's major son Mahesh Kumar was carrying on his business in a tenanted accommodation of Savitribai. No other shop was . available for the business of Mahesh Kumar. Mahesh Kumar was also examined by the landlord as PW2. The tenant also admitted this fact that Mahesh Kumar was doing the business of tailoring in the tenanted accommodation. From the perusal of application filed by the landlord before the lower appellate Court it is apparent that the landlord has specifically stated that the suit accommodation is required by another son of plaintiff, Bhagwandas, who is doing private service. Though this application has not been considered by the lower appellate Court, but landlord's need is still there. Merely death of Mahesh Kumar will not affect the decree as has been passed by the Court below. In the first round, Mahesh Kumar died during the pendency of second appeal. The apex Court in Shakuntala Bai (supra) considering the question held that the suit for eviction of tenant from the accommodation let for non-residential purpose may be instituted by the landlord for the purpose of his business or that of any of his major son, if he is the owner of accommodation. This provision does not say that only such a landlord who has attained majority can institute a suit. But if the need is set up of the sons of the landlord, then they should be. major sons. The apex Court considering the effect of death of landlord during the pendency of proceedings, has considered the law laid down in the various decisions in para II of the judgment, held that even if the landlord dies during the pendency of proceedings in the High Court the bona fide need cannot be said to have lapsed as the business in question may be carried by the widow or any other sons. In this case the landlord has come up with the plea that after the death of Mahesh Kumar, business shall be carried by his son Santosh or Bhagwan9as and the decree passed in favour of landlord cannot be set aside merely because of death of Mahesh Kumar during the pendency of second appeal in the first round. 7. Now another question may be seen whether the landlord is entitled for a decree under section 12(1)(d) of the Act Though it is true that the . trial Court has not granted decree under section 12(1)(d) of the Act, but in the SA No. 98/1996 this Court while remanding the matter specifically directed as under: "Since the Court below has not dealt with the question of eviction on the ground under section "12(1)(d) it is inevitable to remand the case to the Court below to rehear the matter and disposal in accordance with law." 8. The remand order has not been challenged by the appellant and hereafter the matter has been reheared by the appellate Court. The appellate Court considering the ground under section 12(1)(d) held that the condition of the shop is not dilapidated and tenant has failed to prove that it was not used with any reasonable cause. The appellate Court found that since November 1987 the shop was not utilised for continuous period of 3 years from the date of filing of suit, which is 28.11.1990. Though the notice was issued by the tenant for the repair on 22.7.1990, but the appellate Court found that the tenant has failed to prove that the condition of shop was deteriorated in such a manner that it could not be used. On the aforesaid ground the appellate Court granted decree under section 12(1)( d) also. 9. The aforesaid both the findings are finding of fact which need no interference by this Court in second appeal under section 100 of CPC. As the counsel for landlord has very specifically stated that the landlord is not pressing the ground under section 12(1)(g) on which the lower appellate Court has granted decree, it will not be necessary for this Court to consider the aforesaid ground, and the decree for the eviction on this ground is set aside, as not pressed by plaintiff landlord. 10. 10. As both the Courts have found proved grounds .under section 12(1)(d) and (f) of the Act, the appellant could not make out a case for admission of this appeal or to show that any substantial question of law is involved in this appeal. The matter is squarely covered by the judgment of apex Court in the case of Shakuntala Bai (supra). 11. This appeal is without merit and accordingly it is dismissed. While dismissing the appeal it is found appropriate to allow reasonable time to the appellant to vacate the suit accommodation. Considering the totality of facts and circumstances of the case, appellant is allowed reasonable time to vacate the accommodation, but on following terms: (i) That the appellant shall file an undertaking before the trial Court that the appellant shall vacate the suit accommodation on or before 30th September, 2006 without creating any hindrance or third party interest in the accommodation. (ii) The appellant shall deposit entire arrears of rent, if any, and costs incurred in the Court below within a period of thirty days from today and continue to deposit the rent as required under section 13 of the Act and handover the possession of the suit accommodation to the landlord. (iii) On compliance of aforesaid condition the trial Court shall permit the appellant to occupy the shop upto 30th September 2006, in default of which the landlord shall -get the decree executed forthwith by due process of law.