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Madhya Pradesh High Court · body

2007 DIGILAW 1252 (MP)

BANARSI DEVI JAIN v. M. P. TRANSPORT COMPANY

2007-12-05

U.C.MAHESHWARI

body2007
Judgment ( 1. ) THIS appeal is directed by the appellant/plaintiff under section 96 of the Civil Procedure Code being aggrieved by the judgment and decree dated 17. 5. 2002 passed by the IIIrd Add1. District Judge Katni in Civil original Suit No. 17-A/2001 dismissing her suit for eviction filed against the respondents. ( 2. ) THE factual matrix of the case in short is that appellant filed a suit against the respondents for eviction in respect of some non-residential accommodation situated in Katni as described in the plaint contending that respondents are the monthly tenant in such premises at the rate of Rs. 900/-per month. The respondents being defaulter did not pay the rent of such accommodation Rs. 19800/- for the period 1-4-1992 to 31-1-1994. The accommodation in dispute became dilapidated in the lack of proper maintenance by the respondents. It requires major repairing which is not possible without vacating the premises. The appellant has sufficient fund of Rs. 50,000/- the estimated cost of such repairing. Besides this, the suit is also filed on the ground of bona fide and genuine requirement for the business and godown of her son for which she did not have any other alternate accommodation of her own in Katni. On asking the respondents to vacate the premises on the aforesaid ground by the appellant, the same was not vacated. On the contrary, they filed an application under section 37 of the M. P. Accommodation Control Act (in short the Act)before the Rent Controlling Authority, Katni just to harass the appellant, thereby they committed an act of nuisance. In such premises, the suit for eviction was filed on the grounds mentioned under section 12 (1) (a), (c), (f) and (g ). ( 3. ) IN the written statement, the respondents admitted the tenancy in the alleged premises but denied the fact of arrears of rent saying that the entire rent has been paid to the appellant. The alleged premises has already been repaired in compliance of the order of the Rent Controlling Authority, hence it does not require any further repairing. The alleged requirement of the appellant regarding his son is denied with the averment that her son is doing the business in his own shop situated near Gurudwara in Golbazar, Katni. The appellant has also given some shops of that house to other persons on rent for non-residential purposes. The alleged requirement of the appellant regarding his son is denied with the averment that her son is doing the business in his own shop situated near Gurudwara in Golbazar, Katni. The appellant has also given some shops of that house to other persons on rent for non-residential purposes. In pending suit by amendment it is pleaded that during pendency of the suit the appellant got vacated the adjoining premises under execution of the decree from new Delhi MP Transport Company. The same is also available with the appellant for the alleged need. Besides this, availability of some other alternate accommodations with the appellant are also pleaded. In addition, prayer for awarding Rs. 20,000/- as compensatory cost is made. Accordingly, the grounds of eviction mentioned by the appellant are denied. ( 4. ) IN view of the pleadings of the parties, as many as seven issues were framed by the trial Court. After recording the evidence, at the stage of appreciation, the suit of the appellant was dismissed on all the grounds, on which the appellant has come to this Court with this appeal. ( 5. ) IN pendency of the appeal, the appellant moved IA No. 864/04 under order 6, Rule 17 read with section 151 of the CPC to amend the plaint explaining the circumstance that available alternate accommodation with her is not in a condition to fulfil the alleged need of her son. The same has been replied on behalf of the respondents by denying the averments of it. In addition it is pleaded that with mala fide intention the appellant removed the roof of such available alternate accommodation which she got vacated from some other tenant under execution of the decree of eviction. Such LA is also to be considered in this appeal. ( 6. ) SHRI N. K. Patel, learned Senior Advocate assisted by Shri S. B. Patel, while arguing the case fairly conceded that the findings of the trial Court regarding section 12 (1) (a) and (c) of the Act are not under challenge in this appeal. Only the findings relating to section 12 (1) (f) and (g) are challenged by the appellant. ) SHRI N. K. Patel, learned Senior Advocate assisted by Shri S. B. Patel, while arguing the case fairly conceded that the findings of the trial Court regarding section 12 (1) (a) and (c) of the Act are not under challenge in this appeal. Only the findings relating to section 12 (1) (f) and (g) are challenged by the appellant. While arguing the case on the ground of bona fide and genuine requirement of the appellant, he said that in view of the available evidence, the accommodation acquired by the appellant under execution of the decree from the other tenant, although it is adjoining premises, but the same is in dilapidated condition and does not fulfil the alleged requirement of the appellant. However, he fairly conceded that such alternate accommodation is not pleaded in the plaint. Simultaneously, he said that in order to explain the unsuitability of the aforesaid alternate accommodation, he moved an application in pendency of the appeal. In any case, by allowing his application, the case be remanded to the trial Court to decide afresh by extending an opportunity to the respondents to amend their written statement and also after extending an opportunity to lead the evidence on it. He also said that so far suitability of the alternate accommodation is concerned, the respondents failed to prove by any cogent and reliable evidence. Not a single word is stated by any of the respondents witnesses in this regard. He also said that in order to avoid the multiplicity of the litigation and to decide the entire dispute between the parties, his application for amendment should be allowed in the present matter. ( 7. ) SO far dismissal of his suit regarding section 12 (1) (g) of the Act is concerned, he said that on the date of the suit, the alleged accommodation was unfit and unsafe for human habitation and was genuinely required by the appellant for carrying-out repairs. But, during pendency of the suit, on the strength of the order of the Rent Controlling Authority, the respondents got it repaired. But, during pendency of the suit, on the strength of the order of the Rent Controlling Authority, the respondents got it repaired. As per order of said authority they were permitted to spend the sum of one months rent of a year on such repairing but they spend in thousands for which neither any notice was given to the appellant nor any permission was taken by the Rent Controlling Authority, therefore, the respondents were not entitled to recover or adjust such expenses from the appellant except the rent of one month. In spite of it, the trial Court permitted the respondents to deduct Rs. 28155/-towards the rent of Rs. 900/- per year in this regard. Firstly, in view of the provision of section 37 of the Act, the Civil Court did not have any jurisdiction to give such finding and secondly in view of the order of the Rent Controlling authority dated 25-7-1994, the respondents are not entitled to adjust the rent of more than one month. In this premises he prayed for setting aside the findings of the trial Court mentioned in para 12 of the impugned judgment in this regard. He also placed his reliance on some decisions of the Apex Court saying that bona fide, genuine requirement should be considered on the circumstances existed on the date of the suit and not on the basis of any subsequent change in it. With these submissions, he prayed for allowing his appeal. ( 8. ) IN response to the aforesaid arguments, Shri J. P. Chainpuria by supporting the impugned judgment and decree said that the suit of the appellant has rightly been dismissed by the trial Court and it does not require any interference at this stage. The appellant was duty bound to plead the available alternate accommodation with her; either it was available on the date of the suit or acquired subsequent to it and also bound to explain the unsuitability of such acquired alternate accommodation. In the lack of such pleadings in the plaint, the explanation putforth by the appellants counsel regarding unsuitability of such alternate accommodation, cannot be considered. So far amendment application is concerned, he said that during pendency of the suit, appellant got vacated the premises adjoining to the disputed premises and the same was in her knowledge. In the lack of such pleadings in the plaint, the explanation putforth by the appellants counsel regarding unsuitability of such alternate accommodation, cannot be considered. So far amendment application is concerned, he said that during pendency of the suit, appellant got vacated the premises adjoining to the disputed premises and the same was in her knowledge. The plaintiff witnesses were cross-examined on the basis of availability of such alternate accommodation even then such application for amendment was not moved before the trial Court. Thus, the appellants application is apparently, mala fide and the same is filed to defeat the interest of the respondents. It is not only belated but also changing the nature of the suit and prayed for dismissal of such i. A. So far the findings of the trial Court regarding deduction of Rs. 900/- per year from the amount of rent is concerned, he said that in view of the order of the rent Controlling Authority, such finding is correct. In the alternate, he said that such amount is neither deducted nor any proceedings in this regard was filed on behalf of the respondents. In any case, if such finding is set aside by this Court, even then, the decree of eviction could not be passed against the respondents. He also placed reliance on some decided cases and prayed for dismissal of this appeal. ( 9. ) HAVING heard the learned counsels, I have carefully gone through the record of the trial Court and also perused the impugned judgment. ( 10. ) THE findings of the trial Court in respect of section 12 (1) (a) and (c) of the Act is not under challenge, hence the same has got finality, therefore, such question does not require further consideration in this appeal. ( 11. ) SO far question relating to section 12 (1) (g) of the Act the ground for eviction regarding repairing purposes is concerned, the appellant filed a notice dated 19-8-1988 (Ex. P/4) issued by the Commissioner, Municipal Corporation, mundwara district Katni contending that the accommodation in dispute along with some other accommodation are in dilapidated condition, unsafe and unfit for human habitation and the same may fall at any time and may cause injury to person or property. The appellant also filed the order dated 25-7-1994 (Ex. P/4) issued by the Commissioner, Municipal Corporation, mundwara district Katni contending that the accommodation in dispute along with some other accommodation are in dilapidated condition, unsafe and unfit for human habitation and the same may fall at any time and may cause injury to person or property. The appellant also filed the order dated 25-7-1994 (Ex. P/3)passed by the Rent Controlling Authority in Case No. 2-A/90 (7) 93-94 whereby by virtue of section 37 of the Act, the respondents were permitted to repair the disputed premises by allowing their estimate of Rs. 33000/- in this regard with a direction to deduct the amount of one month Rent of a year. On recording the deposition of Jai Kumar Jain (PW 1), the son and the power of attorney holder of the appellant deposed that in spite the aforesaid order of the Rent Controlling authority, no repairing was carried-out by the respondents and under wrong premises they want to recover the same on account of such repairing. Bhola Ram kawar (DW 1) while recording his statement deposed that he, at the instance of the respondents, carried-out the repairing of the disputed premises and also stated description of such repairing along with receipts (Ex. D/4) by which he took the payment of such work. He further stated that all the material for repairing was made available by the respondents. On going through his cross-examination, I have not found anything destroying his version deposed in-chief examination. The other witness Nirbhay Ram Thakkar (D. W. 2), the power of attorney holder of the respondents and looking after their business in the disputed premises categorically stated that in compliance of the aforesaid order of the Rent controlling Authority the repairing of said premises was carried-out by him and the Manager Shri Tripathi. He also proved the documents in this regard (Ex. D/5 to D/45) along with its consolidated statement (Ex. D/46 ). His testimony is not destroyed even in the cross-examination. Besides this, the respondents also proved the notice dated 8-6-1999 (Ex. D/3) issued by the Commissioner, municipal Corporation, Mundwara Katni contending that the disputed premises got repaired and is in fit condition. The adjoining part of the southern side which is kept closed is in dilapidated condition, its major part has fallen and the remaining part may fall at any time. D/3) issued by the Commissioner, municipal Corporation, Mundwara Katni contending that the disputed premises got repaired and is in fit condition. The adjoining part of the southern side which is kept closed is in dilapidated condition, its major part has fallen and the remaining part may fall at any time. A copy of such notice was sent to the appellant as well as to the respondent No. 1. This notice shows that after passing the order by the Rent Controlling Authority on dated 25-7-1994 permitting respondents to carry-out the repairing, the same was carried out by the respondents and the accommodation did not remain in dilapidated condition. Hence it is held that the decree has rightly been refused by the trial Court under section 12 (l) (g) of the Act. But the trial Court committed error in permitting the respondents to deduct Rs. 900/- per year from September, 1995 till realization of rs. 28,155/ -. Such finding was given by the trial Court contrary to the provision of section 37 of the Act. According to such provision, the trial Court did not have jurisdiction to direct deduction of the amount from the rent after carrying out the repairing of the premises in compliance of the order of the Rent Controlling authority as the jurisdiction of the Civil Court in this regard by virtue of section 45 of the Act, is barred. So firstly, such direction was given in lack of jurisdiction. Apart from this, such direction appears to be contrary to the provision of section 37 of the Act which do not permit to deduct such amount for years together unless the order is passed by the Rent Controlling Authority in this regard. Hence, by setting aside the findings of the trial Court mentioned in para-12 of the impugned judgment, it is held that the respondents are not entitled to deduct the alleged amount of expenses by virtue of the impugned judgment of the trial Court. ( 12. Hence, by setting aside the findings of the trial Court mentioned in para-12 of the impugned judgment, it is held that the respondents are not entitled to deduct the alleged amount of expenses by virtue of the impugned judgment of the trial Court. ( 12. ) COMING to the question of section 12 (1) (f) of the Act regarding bona fide, genuine requirement of disputed premises to the appellant for business and godown of her son is concerned, it is apparent from the plaint that on the date of filing the suit or subsequent to it, at any point of time, the available alternate accommodation, was neither pleaded nor any application in this regard was moved by the appellant. Although in the written statement of the respondents, the plea regarding availability of alternate accommodation is taken by the respondent and on vacating the premises by the tenant of adjoining premises under execution of the decree from the tenant New Delhi-MP Transport Company, the written statement was amended and such alternate accommodation is also pleaded. In spite of such pleadings, the appellant did not take any steps to putforth the explanation and the accounts regarding unsuitability of such available accommodation by amending the suit. Although in support of the pleadings of alternate accommodation, the witnesses of the respondents did not state anything in their deposition but the witnesses of the appellant were cross-examined on this count. Jai Kumar Jain (PW 1) son of the appellant admitted in para-6 of his deposition that her mother has got possession of the adjoining premises from the other tenant. In view of the settled preposition of the law that the plaintiff like appellant is bound to built-up her case with all probabilities to get the decree she could not be benefited on the weaknesses of the respondent/defendant, the aforesaid admission is sufficient to draw an inference that the appellant has got adjoining alternate accommodation during pendency of the suit and as per available evidence in the lack of any evidence regarding unsuitability of such accommodation for the alleged need, the suit could not be decreed at this stage on this ground by setting aside the findings of the trial Court in this regard. My aforesaid view is fully fortified by the dictum of the Apex Court announced in the matter of Hasmat Rai and another vs. Ragunath Prasad, 1981 MPLJ (SC)610 = AIR 1981 SC 1711 . ( 13. ) THE law is well settled that the appeal is a continuation of the suit and the appellate Court in first appeal is empowered to consider the factual matrix of the case as it is the last Court of facts. In continuation of the suit, during pendency of the appeal, the appellant moved the aforesaid application to insert the amendment in the plaint regarding unsuitability of the adjoining alternate accommodation for the alleged need. Although, the averments of such LA are denied by the respondents in their reply, it is not under dispute that such alternate accommodation got vacated by the appellant during pendency of the suit and was not available on the date of filing the suit. The merits or demerits of the proposed amendment could not be examined at the stage of consideration of such application as law laid down by this Court in the matter of Soni Ram vs. Srimati asharfi Bai, 1977 (2) MPWN 450. ( 14. ) LONG back the Apex Court in the matter Pasupuleti Venkateswarlu vs. Motor and General Traders reported in AIR 1975 SC 1409 considering the eviction matter between landlord and the tenant under Rent Control Act, held that the subsequent events could be considered while disposing of the matter. The same reads as under :- "4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into section 10 (3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact. " ( 15. ) THE aforesaid question was decided by the Apex Court taking into consideration that after passing the judgment by the trial Court, the subsequent events were placed before the High Court and the same was not considered. In the present matter, the trial Court has concluded the matter but the same is pending in the first appeal. Although in the reported case the subsequent event happened during pendency of the revision before the High Court but in the present case such subsequent event happened during pendency of the suit before the trial Court. Mere on this ground, the application of the appellant cannot be dismissed or thrown away. Although in the reported case the subsequent event happened during pendency of the revision before the High Court but in the present case such subsequent event happened during pendency of the suit before the trial Court. Mere on this ground, the application of the appellant cannot be dismissed or thrown away. Therefore, just to avoid the multiplicity of the litigations between the parties subject to some conditions, such application can be considered at this stage. ( 16. ) APART the above, the proposed amendment appears to be additional approach from the facts already pleaded in para-4 of the plaint. Hence, the same could be allowed in view of the principle laid down by the Apex Court in the matter of A. K. Gupta and Sons Ltd. vs. Damodar Valley Corporation, AIR 1967 sc 96 in which it is held as under :- 7. It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred : Weldon v. Neale, (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than, a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das vs. Amir Khan, 47 Ind App 255 (AIR 1921 pc 50) and L. J. Leach and Co Ltd vs. Jardine Skinner and Co. , 1957 scr 438 ( AIR 1957 SC 357 ). ( 17. ) IN view of the aforesaid, the appellants application for amendment deserves to be allowed but the same is filed at very belated stage even after disclosing the alternate accommodation by the respondents. Although, it does not change the nature of the suit but the respondents suffered the agony of this litigation for years together and again he has to defend the case after allowing such amendment, therefore, he should be compensated by imposing sufficient cost on the appellant, on allowing the aforesaid application. Therefore, the LA no. Although, it does not change the nature of the suit but the respondents suffered the agony of this litigation for years together and again he has to defend the case after allowing such amendment, therefore, he should be compensated by imposing sufficient cost on the appellant, on allowing the aforesaid application. Therefore, the LA no. 864/04 is allowed on the cost of Rs. 10,000/ -. The same is payable to the respondents before incorporating the amendment in the plaint. ( 18. ) ALTHOUGH, the counsel for the appellant cited the cases in the matter of shiv Samp Gupta vs. Mahesh Chand Gupta, AIR 1999 SC 2507 and Shakuntala bai vs. . Narayan Das, AIR 2004 SC 3484 but those cases are distinguishable in the factual circumstances of the case at hand. In the aforesaid first case, by deciding the terminology of bona fide and genuine need the suitability of the alternate accommodation of such need was considered, while in the present matter, in the lack of the pleadings in the plaint such question could not be elaborately examined by the trial Court with proper approach; while the later case was decided on the background that during pendency of the suit, the plaintiff-landlord for whose requirement the suit was filed, died and between the date of the suit and his death, his legal representatives became major and the suit was continued by them and the plaint was amended for their requirement. In spite that, the decree of eviction was set aside by the High Court and the suit was dismissed. But considering the aforesaid subsequent events pleaded by the legal representatives, the suit was decreed by the Apex Court. Accordingly, such case is based on the death of the landlord for whose requirement the suit was filed. Such situation is not here in the case at hand and, therefore, such principle is not applicable to the present case. Although, this Court has no dispute regarding the principles laid down in the aforesaid cases. ( 19. ) IN view of the aforesaid it is held that the trial Court has not committed any error, perversity, illegality in dismissing the suit of the appellant on the grounds enumerated under sections 12 (1) (a), 12 (1) (c) and 12 (1) (g) of the accommodation Control Act. ( 19. ) IN view of the aforesaid it is held that the trial Court has not committed any error, perversity, illegality in dismissing the suit of the appellant on the grounds enumerated under sections 12 (1) (a), 12 (1) (c) and 12 (1) (g) of the accommodation Control Act. Hence, subject to setting aside the findings of para-12 of the impugned judgment, the remaining findings in that regard are hereby affirmed. ( 20. ) SO far the findings of the trial Court in respect of issue No. 2 and 3 relating to section 12 (i) (f) of the Act regarding bona fide, genuine requirement for non-residential purposes is concerned, at present in view of available evidence and pleadings it does not require any interference but the same requires further consideration in view of allowing the aforesaid amendment application of the appellant. ( 21. ) THEREFORE, by allowing this appeal in part, the findings of the trial court regarding deduction of rent Rs. 900. 00 per month in para 12 of the impugned judgment is set aside and the appelants IA 864/04 is allowed at the cost of Rs. 10,000. 00. The payment of this cost to the respondents shall be the condition precedent for incorporating such amendment. Subject to incorporation of such amendment in such a manner within 30 days the case is remitted back to the trial Court with a direction that after extending the opportunity to the respondents for consequential amendment in written statement and recording the additional evidence of the parties on issue Nos. 2 and 3 the case be decided afresh on such issues in accordance with law without influencing by any earlier findings of the trial Court or by this Court. If the amendment is not incorporated by the appellant in compliance of this order then the findings and decree of the trial Court regarding the aforesaid issues shall be binding against the appellant. The trial Court is further directed to take endeavour for deciding the case expeditiously. There shall be no order for any other cost. Decree be drawn-up accordingly. Appeal partly allowed.