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Madhya Pradesh High Court · body

2006 DIGILAW 828 (MP)

Kailash Chandra Vishwakarma v. Sarojani Mahuley

2006-07-10

A.K.SHRIVASTAVA

body2006
JUDGMENT 1. This is tenant's second appeal who has lost from the first appellate Court as the judgment and decree passed by the trial Court dismissing the suit has been reversed and the appeal has been allowed by decreeing the suit of the plaintiff. 2. A suit for eviction under section 12 (1) (f) of the M.P. Accommodation Control Act, 1961 (in short 'the Act') was filed by plaintiff/respondent to start the business which shall be carried out by her elder son, husband or by herself. In para 2 of the plaint it has been pleaded that Harishanker Mahuley, husband of the plaintiff was serving in National Newsprint Paper Mills, Nepanagar and he retired on 30th November, 1988. Her elder son Vikram is also unemployed. By demonstrating these circumstances to the defendant, for several times it was requested to him to vacate the suit shop. It has also been pleaded by the plaintiff that size of her family is big and since there is no source of income she herself, her husband and her son would carry on business in the suit shop. 3. The appellant/defendant filed written statement refuting the averments made in the plaint and pleaded that in fact the real intention of the landlady is to get the rent enhanced and by clothing the so-called need, under the false pretext of bona fide need, the present suit has been filed. 4. The trial Court framed necessary issues and after recording the evidence dismissed the suit. 5. The plaintiff assailed the judgment and decree of the trial Court by filing first appeal before the lower appellate Court which has been allowed and the suit of the plaintiff has been decreed. Hence this second appeal has been preferred by the defendant. 6. This Court on 11.1.1999 admitted the second appeal on the following substantial question of law : "Whether the finding of the lower appellate Court that the suit accommodation is required bona fide for business by the plaintiff/ respondent is perverse?" 7. I have heard Shri A.L. Patel, learned counsel for the appellant. The contention of learned counsel is that if the evidence of plaintiff Saroj Mahuley (PW 1) and particularly para 3 is considered in proper perspective it would reveal that there was an accommodation adjoining to the suit shop and it has been given to one Dr. Prashnani. I have heard Shri A.L. Patel, learned counsel for the appellant. The contention of learned counsel is that if the evidence of plaintiff Saroj Mahuley (PW 1) and particularly para 3 is considered in proper perspective it would reveal that there was an accommodation adjoining to the suit shop and it has been given to one Dr. Prashnani. Had there been any bona fide need to start the business, the said shop would not have been given on rent to Dr. Prashnani. By inviting my attention to the testimony of Shanker Mahuley (PW 2), who is husband of the plaintiff it has been submitted that the accommodation was given to Dr. Prashnani in the year 1986 and, therefore, the need of the plaintiff cannot be said to be bona fide need, and in the realm, she wants to get the rent enhanced and, therefore, the suit of the plaintiff be dismissed. According to the learned counsel the findings recorded by the first appellate Court are perverse. 8. Having heard learned counsel for the appellant and after perusing the record, I am of the view that this appeal deserves to be dismissed. 9. On bare perusal of para 2 of the plaint it is gathered that husband of the plaintiff was serving in National Newsprint Paper Mills, Nepanagar and he retired on 30th November, 1988. This fact has been denied by the appellant for want of knowledge. It is well settled in law that the averments made in the written statement denying facts for want of knowledge amounts to admission under Order 8 Rules 3 and 5, CPC. In this regard I may profitably rely Division Bench decision of this Court Dhanbai v. State of M.P. and others [ 1978 JLJ 879 ] and that of Supreme Court lahuri Sah v.D.P. lhunjhunwala [ AIR 1967 SC 109 ]. Thus it is held that defendant has admitted the fact that the husband of plaintiff has retired on 30th November, 1988. 10. Apart from this plaintiff Saroj Mahuley (PW 1) in para 1 of her testimony has specifically stated that her husband retired in the year 1988.The husband of the plaintiff, namely, Shanker Mahuley (PW 2) has also stated that he retired in the year 1988. There is no cross-examination on this fact and, therefore, it is held that husband of the plaintiff retired in the year 1988. 11. There is no cross-examination on this fact and, therefore, it is held that husband of the plaintiff retired in the year 1988. 11. If paras 2 and 5 of the plaint are read jointly it would reveal that the suit shop is required by plaintiff herself, for her huband and also for her elder son Vikram to start business. The husband of the plaintiff retired in the year 1988 and thus if the accommodation was let out to Dr. Prashnani in the year 1986 it would not jeopardise the case of the plaintiff because her husband retired two years after the accommodation was let out to Dr. Prashnani. 12. Apart from what I have held hereinabove, it has come in the testimony of the plaintiff that the accommodation which is let out to Dr. Prashnani is a residential accommodation. Merely Dr. Prashnani has started his clinic in the said accommodation is altogether a different thing. It is for the plaintiff to take action against him. Learned counsel for the appellant could not point out that the accommodation which was let out to Dr. Prashnani was non-residential accommodation when it was let out to him. Thus, even if the said accommodation is adjoining to the suit shop, it cannot be said to be a reasonably suitable accommodation. I have already held hereinabove that husband of the plaintiff retired in the year 1988 and, therefore, if the accommodation was let out to Dr. Prashnani in the year 1986 the relief which the plaintiff is seeking cannot be denied to her. 13. Learned counsel has placed reliance on the decision of the Supreme Court Amarjit Singh v. Smt. Khatoon Quamarain [ AIR 1987 SC 741 ]. This case is not at all applicable for the simple reason that in the said case the accommodation was let out by the landlord after his need arose and in that situation the Supreme Court held that the need of the plaintiff cannot be said to be bona fide. However, in the present case, as held hereinabove, husband of the plaintiff retired in the year 1988 and the accommodation was given to Dr. Prashnani in the year 1986 and hence the case of Amarjit Singh (supra) is not applicable in the present factual scenario. 14. However, in the present case, as held hereinabove, husband of the plaintiff retired in the year 1988 and the accommodation was given to Dr. Prashnani in the year 1986 and hence the case of Amarjit Singh (supra) is not applicable in the present factual scenario. 14. Resultantly this appeal is found to be devoid of any substance and the same is hereby dismissed without any order as to costs as nobody is appearing on behalf of the respondent to oppose this appeal.