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Madhya Pradesh High Court · body

2007 DIGILAW 1152 (MP)

GULKHAN v. OM PRAKASH KHATRI

2007-10-30

U.C.MAHESHWARI

body2007
Judgment U.C.MAHESHWARI, J. ( 1. ) This appeal is directed by the appellant/defendant being aggrieved by the judgment and decree dated 30.9.2004 passed by 9th Additional District Judge, Jabalpur in Civil Original Suit No.44/04 whereby the suit for eviction filed by the respondent has been decreed against him under Section 12 (1) (a), (c) and (e) of Madhya Pradesh Accommodation Control Act, 1961 (In short "the Act"). ( 2. ) The brief facts of the case are that respondent filed a suit for eviction against the appellant in respect of accommodation comprising two rooms on the ground floor of House No. 1582 situated at Purani Basti Ranjhi, Jabalpur. As per averments of the plaint the defendant / respondent was inducted in such accommodation for residential purpose in the month of April 1997 on monthly tenancy @ Rs.1,000/- p.m. The same was enhanced in the year 1999 @ Rs. 1,200/- p.m. The appellant committed default in payment of rent and did not pay the same since 1999. On making its demand the son of the respondent Rajendra Khatri was subjected to misbehave and beating by the appellant. The other part of the house is in possession of the respondent. The same is used for keeping the domestic goods. The appellant tried to take forcefully possession of the first floor by breaking the lock on 22.3.2002. The same was reported to the police by said Rajendra Khatri for which the appellant is facing the criminal prosecution for the offence under Section 448, 294 and 506 of IPC. Besides this the appellant has polluted the well situated in such house by throwing the garbage in it. The electricity connection of such accommodation was disconnected on account of non-payment of its- bill by the appellant. Subsequent to it without consent of the respondent the appellant took the new electricity connection in such accommodation. The aforesaid acts of the appellant are not only contrary to the terms and conditions of the tenancy but also contrary to the interest of the respondent. Thereby the appellant has become nuisance in such accommodation. Besides this the appellant filed a suit for perpetual injunction in the Court of Third Civil Judge Class-II, Jabalpur against Rajendra Khatri the son of the respondent stating him the landlord and denied the title of the respondent, such act of the appellant comes under the purview of nuisance. Thereby the appellant has become nuisance in such accommodation. Besides this the appellant filed a suit for perpetual injunction in the Court of Third Civil Judge Class-II, Jabalpur against Rajendra Khatri the son of the respondent stating him the landlord and denied the title of the respondent, such act of the appellant comes under the purview of nuisance. In the family of the respondent there are 13 members including three dependant sons, daughter in laws, grand sons and grand daughters. He did not have the sufficient accommodation of his own at Jabalpur for their comfortable residence. Thus, he is in bonafide need of the disputed accommodation for the residence of his family members. On the aforesaid ground the respondent gave a notice to the appellant on 20.5.2003 for vacating the premises but in spite its service the same was not complied with on which the present suit was filed by the respondent. ( 3. ) In the written statement of the appellant by admitting the tenancy the same was said to be @ Rs.200/- p.m. while the other averments of the plaint are denied. The grounds of eviction mentioned by the respondent are denied. In addition it was pleaded that on making demand by the son of respondent Rajendra Prasad Khatri on 1.11.97 the appellant gave him Rs.20,000/- on assurance that same will be adjusted towards the future rent. In view of such advance payment he did not commit any default. In the year 1997 such house was damaged due to calamity of earthquake, on which the respondent demanded sum from him for its repairing. As the appellant was awarded some compensation as sufferer of earthquake. On denying the same being aggrieved the respondent filed the suit. The respondents son wanted to evict the appellant forcefully through some unsocial elements, therefore to protect the possession of accommodation he filed the suit for perpetual injunction against the son of respondent. It is further pleaded that respondent is also having two-storied house comprising ten rooms in which he is residing conveniently with his family. Besides this he is also having an accommodation comprising six rooms situated near Money dairy at Pariyat. In such circumstance the need of the respondent is neither bonafide nor genuine and prayed for dismissal of the suit. ( 4. ) In view of the aforesaid pleadings the issues were framed and evidence was record. Besides this he is also having an accommodation comprising six rooms situated near Money dairy at Pariyat. In such circumstance the need of the respondent is neither bonafide nor genuine and prayed for dismissal of the suit. ( 4. ) In view of the aforesaid pleadings the issues were framed and evidence was record. On appreciation of the evidence the respondent suit was decreed by the trial court against the appellant on the ground enumerated under Section 12 (1) (a) (c) and (e) of the Act. Being aggrieved by such decree the appellant filed this appeal. The respondent also filed his cross-objection under Order 41 Rule 22 of CPC for setting aside the findings of issue No.l holding the tenancy of the appellant @ Rs.200/- p.m. contrary to the case of the respondent @ Rs. 1,200/- p.m. ( 5. ) Ms. Sujata Das, learned counsel for the appellant assailed the impugned judgment that there was a disputed regarding rate of monthly rent and in pursuance of it entire quantum of arrears of rent was also disputed. The same was decided by the trial court by interim order dated 23.4.2004 directing the appellant to deposit the entire arrears of rent@ Rs.200/- p. m. and the same was deposited on 6.5.2004, within one month from the date of the order and subsequent to it the regular rent was deposited by the appellant. In such circumstance the appellant could not be held the defaulter in respect of payment of rent. She further said that the respondent has failed to prove that appellant has committed any act amounting to be a nuisance. He also failed to prove that the appellant has violated any rules or regulations in taking new electricity connection in such accommodation. Mere taking such new electricity connection could not be treated as nuisance. So for bonafide and genuine requirement are concerned, she said that in view of the deposition of respondent himself and his son Rajendra Khatri they have sufficient alternate accommodation in House No. 124; situated at Ranjhi Bazar, main road and also the other accommodation of the dispute house for the alleged need. The respondent did not give any account or explanation in his pleading regarding such available accommodation. In the lack of it the need of respondent could not be turned either bonafide or genuine. But the trial court while appreciating the evidence has not considered these aspects. The respondent did not give any account or explanation in his pleading regarding such available accommodation. In the lack of it the need of respondent could not be turned either bonafide or genuine. But the trial court while appreciating the evidence has not considered these aspects. So far cross objection of the respondent is concerned she said that in view of available evidence and the circumstance that tenancy as held by the trial court @ Rs.200/- p.m. does not required any interference. With these submission she prayed for dismissing the suit and cross- objection of the respondent by allowing the appeal. ( 6. ) Shri Rajendra Gupta, learned appearing counsel for the respondent while justifying the impugned judgment said that the same is passed after taking into consideration the available evidence and in conformity with law but the trial court has committed grave error in holding the alleged tenancy @ Rs.200/- p.m. contrary to the record. As per his submission the alleged tenancy took place in the year 1997 @ Rs.1,000/- p.m. the same was enhanced in the year 1999 by Rs.200/- p.m. and since then the tenancy was @ Rs. 1,200/- p.m. In respect of this contention sufficient evidence was available on the record but contrary to it the tenancy was held @ Rs.200/-p.m. under the wrong premises. Such findings of the trial court requires modification for holding the tenancy @ Rs. 1,200/- p.m. ( 7. ) He further said that in any case if the tenancy is upheld @ Rs.200/- pm. even then the decree passed by the trial court does not require any interference as the appellant polluted the alleged well by throwing the garbage in it. Besides this, on account of the non-payment of electricity bill by the appellant the electric connection was disconnected and without consent of the landlord-respondent new connection was taken by the appellant thereby he acted against the interest of the respondent. Such acts are covered by the definition of nuisance defined under Section 12 (1) (c) of the Act. So far bonafide genuine requirement is concerned, he said that considering the number of members in the respondent family such question was rightly decided by the trial court in favour of the respondent. It was not necessary for the respondent to plead the account of available accommodation and its use. So far bonafide genuine requirement is concerned, he said that considering the number of members in the respondent family such question was rightly decided by the trial court in favour of the respondent. It was not necessary for the respondent to plead the account of available accommodation and its use. Thus, the findings of the trial court in this regard do not require any interference. Under these premises he prayed for dismissal of the appeal by allowing his cross-objection. ( 8. ) Having heard the counsel, I have carefully gone through the pleadings of the parties, evidence available on record by the trial court and also perused the impugned judgment. I am of the considered view that trial court has committed grave error in decreeing the suit because of the following reasons. ( 9. ) So far the arrears of rent is concerned, as per averments of the plaint the tenancy of the appellant was initially @ Rs. 1,000/- p.m. and since 1999 the same is @ Rs.1,200/- p.m. while in the written statement it was stated that such accommodation was taken long back @ Rs.200/- p.m. Besides this it is also pleaded that on making demand by the respondent he paid Rs.20,000/-a advance rent to the son of the respondent on 1.11.1997. Accordingly the appellant disputed the rate of the rent and the quantum of arrears. In view of such dispute the provision of Section 13 (1) of the Act could not be invoked as the same were arrested till deciding such dispute by the Court. Such dispute was decided by the trial court on 23.4.2004 under Section 13 (2) of the Act by fixing the provisional rate of rent @ Rs.200/- p.m. from the date of 1.11.1997. The contention of appellant regarding payment of Rs.20,000/- in advance to the respondents son was not found to be correct and the appellant was directed to deposit the arrears of rent @ Rs.200/- p.m. As per findings of the trial court in paragraph 34 of the impugned judgment in compliance of such order the entire arrears of rent was deposited by the appellant in C. C. D. vide dated 6.5.2004 within one month from the date of such order. I have not been apprised by the respondent counsel that subsequent to aforesaid order any default in paying the rent has been committed by the appellant. I have not been apprised by the respondent counsel that subsequent to aforesaid order any default in paying the rent has been committed by the appellant. While as per submission of appellant counsel he is depositing the rent regularly as directed by the trial court. It is noted that even on passing the impugned judgment the rent of such accommodation was held @ Rs.200/- p.m. In such circumstance it could not be inferred that appellant committed any default in depositing the rent. ( 10. ) So far cross-objection of the respondent for enhancing the rate of rent is concerned, the findings of the trial court in paragraph 10 to 14 of the impugned judgment appear to be based on available evidence and the copy of assessment register of local authority Ex.D.3 to Ex. D.5. According to such record that in the year 1992-93 such accommodation was in possession of the appellant @ Rs.150/ - p.m. and subsequent to it in any circumstance it could not be enhanced up to Rs.1,000/- p.m. in the year 1997 and Rs. 1,200/- in the year 1999. Besides this, looking to the locality and size of the accommodation i. e. only two rooms the rate stated by the respondent appears to be very higher side. Therefore, I have not found any substance in the cross-objection of the respondent. Hence, the same deserves to be and is hereby dismissed. ( 11. ) Considering the circumstance that after fixing the provisional rent and quantum of arrears by the trial court the appellant deposited the entire arrears in compliance of the interim order of the trial court and thereafter he paid the rent regularly. Hence, he could not be held the defaulter in view of the dictum announced by the Apex Court in the matter of Jamnalal Vs. Radheshyam reported in 2000 (4) SC. C. 380, in which it was held as under: "15......Where the dispute as to the amount of rent payable by the tenant has no nexus with the rate of rent, the determination of such dispute in a summary inquiry is not contemplated under sub-section (2) of Section 13. Such a dispute has to be resolved after trial of the case. C. 380, in which it was held as under: "15......Where the dispute as to the amount of rent payable by the tenant has no nexus with the rate of rent, the determination of such dispute in a summary inquiry is not contemplated under sub-section (2) of Section 13. Such a dispute has to be resolved after trial of the case. Consequently, it is only when the obligations imposed in Section 13 (1) cannot be complied with without resolving the dispute under sub-section (2) of that section, that Section 13(1) will become inoperative till such time the dispute is resolved by the court by fixing a reasonable provisional rent in relation to the accommodation. It follows that where the rate of rent and the quantum of arrears of rent are disputed the whole of the Section 13(1) becomes inoperative till provisional fixation of monthly rent by the court under sub-section (2) of Section 13, which will govern compliance of Section 13 (1) of the Act....." 16. Sub-section (3) of Section 13 of the Act deals with a case where the dispute is as to the person or persons to whom the rent is payable. If the court is satisfied that the dispute raised by the tenant in regard to the person or persons to whom the rent is payable is false or frivolous, Sub-section (4) says, the court in its discretion may order striking out the defence against the eviction instead and proceed with the hearing of the case. So also Subsection (6), in the case of noncompliance in depositing or payment of rent of any amount as required by Section 13(1) of the Act, enables the court to order striking out the defence against the tenant instead and proceed with the hearing of the suit. Sub-section (5) directs that if the tenant makes deposit or payment as required under Sub-section (1) or Sub-section (2) of Section 13 of the Act, the Court is barred from making a decree or order for the recovery of the possession of the accommodation on the ground of default in payment of rent by the tenant but the court may allow such cost as it may deem fit to the landlord." ( 12. ) Thus in view of aforesaid discussion and dictum of the Apex Court, it is held that the trial court has committed grave error in passing the decree under Section 12 (1) (a) of the Act. The same deserves to be and is hereby set aside. ( 13. ) Coming to the question whether the alleged well was polluted by the appellant is concerned, the same has not been proved specifically by cogent and admissible evidence. Mere on vague statement of the respondent in the lack of any specific pleading with particulars regarding date and time for committing such act, it could not be inferred that such act was committed by the appellant. While recording the deposition respondent Om Prakash stated that well was polluted by the appellant by throwing the garbage. He could not disclose any date or time regarding such Act even in his chief. The other witnesses namely Rajendra Khatri (P.W.2) and Jitendra Naidu (P.W.3) also did not state such particulars either in their chief or in cross-examination. Therefore, in the absence of any specific pleading and the positive evidence no inference could be drawn against the appellant for committing such act. Besides this pollution has not been proved by examining any expert witness in that regard. Hence, the findings of the trial court holding that appellant affected the title of the respondent by such act is not sustainable and in pursuance of it the decree passed under 12 (1) (c) on the ground of nuisance is also not sustainable. ( 14. ) So for disconnection of the electricity and taking fresh connection without consent of the respondent is concerned, I have not found any pleading or evidence saying that the appellant was bound to pay the bill of electricity apart the rent. For the sake of argument if it is deemed that the appellant had to pay the electricity bill and it was not paid by him even then only on the ground of non-payment of electricity bill and taking new connection in the premises could not be held to be a circumstance to draw any inference against the appellant. ( 15. ) So for installation of new connection is concerned, as per procedure the landlord is bound to provide all necessary amenities for its proper use to keep the accommodation in tenanted condition. ( 15. ) So for installation of new connection is concerned, as per procedure the landlord is bound to provide all necessary amenities for its proper use to keep the accommodation in tenanted condition. If the landlord is failed to provide the same then tenant has a right to obtain such amenities in accordance with law. It appears that connection was provided by the Electricity Board after considering the application of the appellant. Under such premises it could not be inferred that the appellant has committed any illegal act against the title of the respondent. If such electricity connection was taken by the appellant in accordance with the procedure then such act could not be termed as part of the nuisance for passing the decree under Section 12 (1) (c) of the Act. ( 16. ) In such premises it is held that the trial court has committed grave error in passing the decree against the appellant under Section 12 (1) (c) of the Act. Hence, it deserves to be and is hereby set aside. ( 17. ) Coming to the question regarding alleged bonafide and genuine requirement of the accommodation to the respondent is concerned, as per averments in paragraph 7 of the plaint the respondent pleaded that his family is comprising by 13 members including three sons, daughters in-law, grand sons and grand daughters for whose residential requirement he is in need of disputed accommodation as he does not have any other sufficient suitable accommodation of his own at Jabalpur. In such pleading he did not disclose any account of available accommodation. Even it has not been stated that at present in which premises respondent and his family members are residing. In paragraph 4 of the plaint it is pleaded that except the disputed accommodation he is in possession of the remaining house and the same is used for keeping the domestic articles and remain locked, while in the written statement the appellant pleaded that respondent has a double storied house comprising ten rooms in which he is residing with his family is more than sufficient and convenient for the residence of his family. Besides this he has also an accommodation of six rooms at Pariyat. Besides this he has also an accommodation of six rooms at Pariyat. Inspite the aforesaid pleadings of the appellant regarding availability of sufficient alternate accommodation with the respondent for his alleged need, the same is never explained by the respondent in the plaint in any manner. In the matter of bonaflde genuine requirement the landlord like respondent is duty bound to put forth the account of the available accommodations in possession of him and in the lack of such pleadings his alleged need could not be considered as bonaflde and genuine. In such premises he does not deserve for decree of eviction. Such question was considered and answered by the Apex Court in the matter of Hasmat Rai and another v. Raghunath Prasad reported in AIR 1981 S.C. 1711 , in which it was held as under: 16. There is an error apparent on the face of the record in as much as when the H. C. was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent landlord has obtained vacant possession of a major portion of the building which was in possession of firm M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation? The High Court got over this dilemma by observing and by affirming the finding of the subordinate Courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub-section (7) of Section 12 because such a composite user would not radically change the purpose for which the accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12 (1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfil namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the Court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the Trial Court and the first Appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested the landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the Courts subordinate to it that the respondent- landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the Courts are accepted as sacrosant yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12 (l)(f) of the Act. ( 18. ) In view of aforesaid dictum if the present case is examined then from the deposition of respondent Om Prakash (P.W.I) he stated that he is residing since last 12-13 years in the house No.124, the same was constructed by his father comprising three rooms and three shops. He further admitted that he is in possession of some part of disputed house. His son Rajendra Khatri deposed that he is residing in the house No.124, Ranjhi Bazar, main road. He further admitted that he is in possession of some part of disputed house. His son Rajendra Khatri deposed that he is residing in the house No.124, Ranjhi Bazar, main road. In paragraph 5 he further stated that six rooms of disputed house are in their possession since 1997 and in first floor of such house some articles are kept by them. These admissions are apparently showing that they are in possession of sufficient alternate accommodation for the alleged need, if any, but such alternate accommodations or its availability has neither been pleaded nor explained in any manner at the time of filing the suit or subsequent to it by way of amendment. When the landlord like respondent is having six vacant rooms with him in the tenanted house and also having a house no. 124, main road, Ranjhi, in which he is residing with his family, if his need was bonafide and genuine then he could have started the use of those vacant room in the alleged tenanted house but the same are kept in locked position. In such circumstance his alleged need could not be termed as bonafide or genuine. Mere wish of the landlord is not sufficient unless such need is not proved bonafidely and genuine with probabilities. In such premises, it is held that trial court has committed grave error, perversity and illegality in passing the decree under Section 12(l)(e) of the Act, the same is not sustainable, it deserves to be and is hereby set aside. ( 19. ) In the aforesaid premises by allow wing this appeal and dismissing the cross objection the impugned judgment and decree is hereby set aside and the suit of the respondent is hereby dismissed. The respondent shall bear their own cost of this litigation and also pay the cost of both the courts to the appellant. The advocate fees Rs.2,500/- is quantified. ( 20. ) Decree be drawn up accordingly. ( 21. ) Appeal is allowed as indicated above.