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Madhya Pradesh High Court · body

2007 DIGILAW 255 (MP)

Vinod Kumar Agrawal v. Chandrakant Pandey

2007-03-02

RAJENDRA MENON

body2007
JUDGMENT 1. This is plaintiffs second appeal under section 100 of CPC assailing the concurrent judgments and decrees passed by the Courts below in the matter of dismissing a suit for eviction filed by the plaintiff against the respondents. 2. Suit filed by the plaintiff-appellant against the respondents for eviction from the suit premises comprising of a room in the first floor of a building situated in Madhoganj, Lashkar, Gwalior along with a tin shed in the upper floor on the grounds contemplated under section 12(1)(a), i.e., arrears of rent, 12(1)(f), i.e., bona fide need, 12(1)(b), i.e., sub-letting and 12(1)(c), i.e., nuisance under the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as "the Act") has been dismissed concurrently by both the Courts, and therefore, this second appeal by the plaintiff. 3. The second appeal was admitted on 25th September, 2002 for consideration of the following 4 substantial questions of law: (1) Whether the payment of rent by a sub-tenant in the name of tenant validates the sub-tenancy created unlawfully in contravention of section 14 of the M.P. Accommodation Control Act? (2) Whether the Courts below are unjustified in not applying the objectivity test and further in considering the irrelevant factors like partnership business of the plaintiff with his father and the occupied property owned by the mother? (3) Whether the Courts below have erred in law in not considering the obstruction caused by the Gumti in the passage? (4) Whether the Courts below have acted illegally in dismissing the suit for arrears of rent? 4. As far as question No. (3) with regard to obstruction caused in the passage of the suit premises is concerned. Shri A.K. Chitley, learned senior counsel for the appellant at the very outset submitted that he does not press the same now in this appeal. Accordingly, the appeal is considered only with regard to questions No. (1), (2) and (4) as reproduced hereinabove. 5. Certain facts necessary for deciding the appeal are that the suit property initially belonged to Shri Gopal Krishna and Ramkrishna Chhaparwal. It is the case of the plaintiff that they had given the suit premises on a rent of Rs 40/- per month to one Ganesh Ram Sharma, husband of the original defendant No.1 Smt. Laxmibai. It is stated that after death of Ganesh Ram Sharma, the original defendant No.1 Smt. Laxmibai became tenant of the suit premises. It is the case of the plaintiff that they had given the suit premises on a rent of Rs 40/- per month to one Ganesh Ram Sharma, husband of the original defendant No.1 Smt. Laxmibai. It is stated that after death of Ganesh Ram Sharma, the original defendant No.1 Smt. Laxmibai became tenant of the suit premises. She paid rent up to 31st March, 1990 to the original landlords, Shri Gopal Krishna and Ram Krishna. Both these persons, it is stated have sold the property vide registered sale-deed dated 19th February, 1993 to one Somdutt Saboo. In the sale-deed it is mentioned that Ganesh Ram Sharma is tenant in the suit premises. Somdutt Saboo vide another sale-deed dated 31st March, 1997 through his power of attorney holder sold the property to the present plaintiff-appellant. In this sale-deed, it is mentioned that Ganesh Ram Sharma was a tenant in the suit premises. After his death, the defendant No.1, Smt. Laxmibai is tenant in the suit premises and rent of the suit premises is due which also stood transferred to the purchaser of the property. 6. On the ground that Smt. Laxmibai has sublet the property without his consent to the defendants No.2 and 3, the respondents No.1 and 2 herein in this appeal, she has parted with the possession of the property in favour of the respondents No.2 and 3 who have installed a wooden Gumti in the passage leading to the plaintiffs house thereby creating obstruction and nuisance, rent of the suit premises has not been paid since 1990 and that the plaintiff require the suit premises for carrying out his own business of readymade garments, the suit was filed on the grounds contemplated under section 12(1)(a), (t), (c) and (b) of the Act. 7. Defendants appeared and filed their written statement and it was the case of the defendants that Ganesh Ram Sharma and Narayanibai, his sister were the original tenants and both were running a Bhojanalaya in the name and style "Narayanibai Bhojanalaya". Ganesh Ram expired in the year 1971 since then Narayanibai and her two sons, namely, Chandrakant Pandey and Munnalal Pandey, the defendants No.2 and 3 (respondents No.1 and 2 in this appeal) are running the business in the suit premises. Contention of subletting, non-payment of rent and bona fide requirement, so also, creating obstructions were denied. Ganesh Ram expired in the year 1971 since then Narayanibai and her two sons, namely, Chandrakant Pandey and Munnalal Pandey, the defendants No.2 and 3 (respondents No.1 and 2 in this appeal) are running the business in the suit premises. Contention of subletting, non-payment of rent and bona fide requirement, so also, creating obstructions were denied. The learned trial Court framed six issues and answered all the issues against the plaintiff and dismissed the suit vide judgment and decree dated 3rd April, 2001. Aggrieved thereof, Civil Appeal No.17 -A of 2001 was filed before the first appellate Court. During pendency of the first appeal, the original defendant No.1 Smt. Laxmibai expired on 2nd January, 2002, therefore, her name was deleted. Finally, the first appellate Court has also dismissed the suit vide the judgment and decree dated 4th May, 2002, and therefore, the second appeal by the plaintiff-appellant. 8. Shri A.K. Chitaley, learned senior counsel for the appellant argue on the substantial question No.4 and thereafter addressed this Court on substantial questions No.2 and 1 respectively. 9. I, therefore, propose to take up each question separately as argued by Shri A.K. Chita1ey, learned senior counsel at the time of hearing of the appeal. Question No.4 10. Question No.4 reads as under: (4) Whether the Courts below have acted illegally in dismissing the suit for arrears of rent? 11. Shri A.K. Chitaley, learned senior counsel taking me through the findings recorded by the trial Court as contained in paragraphs 62 to 73 of the impugned judgment pointed out that it is an admitted fact that rent of the suit premises was not paid from 1990. Even though notice was served to the original defendant No.1 Smt. Laxmibai on 6th May, 1997 but in spite of receipt of notice, no arrears of rent was paid. Notice sent to Chandrakant Pandey and Munnalal Pandey were refused and they also did not pay any rent. Suit was filed on 23rd June, 1997 and after summons were issued on 26th June, 1997, the same was served on the present respondents on 17th July, 1997, and 4th April, 1997. Arrears were not deposited within the period stipulated under section 13(1) of the Act even after the summons were served. Suit was filed on 23rd June, 1997 and after summons were issued on 26th June, 1997, the same was served on the present respondents on 17th July, 1997, and 4th April, 1997. Arrears were not deposited within the period stipulated under section 13(1) of the Act even after the summons were served. For the first time, rent for a period of four months was deposited after receipt of summons and thereafter further sum of Rs.440/- was deposited on 2nd February, 1998. On 11th February, 1998, an application under section 13(6) of the Act was filed by the appellant in the trial Court. Accordingly, the following amounts were deposited by the respondents: S.No. Date of Deposit Amount-(Rs.) (1) 17.3.1998 40/- (2) 22.4.1998 80/- (3) 24.6.1998 120/- (4) 15.8.1998 120/- (5) 7.11.1998 120/- (6) 6.2.1999 120/- (7) 29.4.1999 120/- (8) 9.8.1999 200/- (9) 7.1.2000 200/- (10) 10.5.2000 200/- 12. Thereafter, a further sum of Rs.80/- was deposited on 9th November, 2000 and orders with regard to arrears of rent was passed on 5th January, 2001. 13. It was argued by Shri Chitaley, learned senior counsel that the rent from month to month was not deposited and as arrears of rent was established, it was a fit case where on the ground of non-payment of rent for more than three years, suit should have been decreed on the grounds contemplated under section 12(1) (a) of the Act. Shri Chitaley, learned senior counsel submitted that by relying upon a judgment rendered by a Division Bench of this Court in the case of Anandilal v. Shivdayal [1977 JLJ 817], the learned first appellate Court dismissed the suit, and in doing so, the principles laid down and the fact of overruling the judgment in the case of Anandilal (supra), by the Supreme Court in the case of Jamnalal v. Radheshyam [ 2000(2) JLJ 1 = (2000)4 SCC 380 ], was not taken note of. Referring to the judgment of the Supreme Court in the case of Jamnalal (supra), and taking me through the finding recorded by the Supreme Court in the aforesaid case as contained in paragraphs 11 to 18 and paragraph 23 thereof, Shri Chitaley, emphasised that in dismissing the appeal and the suit for eviction on the grounds contemplated under section 12(1)(a) of the Act on the basis of the judgment in the case of Anandilal (supra), learned first appellate Court has committed grave error and by ignoring the principles laid down by the Supreme Court in the case of Jamnalal (supra), the Courts below have committed grave error. It was emphasised by him that as non-payment of rent even for a period of three years prior to filing of the suit is found to be established, the learned Court has committed grave error in not decreeing the suit even when no application for condonation of delay in payment of rent was filed by the defendants. Emphasising that the Courts below have committed grave illegality in dismissing the suit on the grounds of arrears of rent, Shri Chitaley, prayed for decreeing the suit on the grounds of arrears of rent and argued that the question No.4 framed be answered in favour of the appellant. In support of his contention, apart from relying on the decision in the case of Jamnalal (supra), Shri Chitaley, learned senior counsel invites my attention to the following judgments also to argue that once non-payment of rent is established, then the Court had no option but to decree the suit on the grounds contemplated under section 12(1) (a) of the Act. (1) Atmaram v. Shakuntala Rani [ (2005)7 SCC 211 ]; (2) E. Palanisamy v. Palanisamy (Dead) by LRs [ (2003)1 SCC 123 ]; (3) Parmeshwar Prasad v. Parmeshwari Devi [ (2000)10 SCC 193 ]; (4) Mohammed Yunus v. Gurubux Singh [1995 Supp.(1) SCC 418]; (5) Madan Mohan and other v. Krishan Kumar Sood [1994 Supp. (1) SCC 437]; (6) J.L. Varandani v. Ashalata Mukherjee (Dead) by LRs " [ (1990)4 SCC 40 ]; (7) Arjun Khiamal Makhijani and others v. Jamnadas C. Tulian and others [ (1989)4 SCC 612 ]; (8) Mrs. (1) SCC 437]; (6) J.L. Varandani v. Ashalata Mukherjee (Dead) by LRs " [ (1990)4 SCC 40 ]; (7) Arjun Khiamal Makhijani and others v. Jamnadas C. Tulian and others [ (1989)4 SCC 612 ]; (8) Mrs. Manju Choudhary and another v. Kulal Kumar Chandra [ (1988)1 SCC 363 ]; (9) Vasumatiben Gaurishankar Bhatt v. Naviram Manchharam Vora and others [ AIR 1967 SC 405 ]; (10) Manglal v. Sirgan Chand Rathi (Deceased) [ AIR 1965 SC 101 ]; (11) Vora Abhasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai [ AIR 1964 SC 1341 ]; (12) Sheodhari Rai and others v. Suraj Prasad Singh and others [ AIR 1954 SC 758 ]; (13) Smt. Sushila Shrivastava v. Nafees Ahmed Qureshi and another [ (2001)1 JLJ 351 ]. 14. Refuting the aforesaid, Shri V.K. Bharadwaj, learned counsel for the respondents argued that in this case when the plaintiff contended in the plaint that rent of the suit premises is Rs.4O/- and the rent is not paid from 1990 in the written statement itself, the defendants had raised a plea that the rent up to December, 1995 had been paid and thereafter, no rent is due. It was argued by him that once the quantum of rent and the arrears is disputed in the written statement, learned Court is required to determine this question first and it is only after this question is determined, the defendants are required to pay the rent as ordered by the Court. Shri Bharadwaj argued that orders on the question of arrears of rent was passed by the trial Court on 5th January, 2001 and it was held by the trial Court that plaintiff cannot claim rent for a period of three years beyond the date of filing of the suit, after the order was passed on 5th January, 2001, the defendants were directed to deposit the arrears of rent within three months. The defendants as required under section 13(1) of the Act had deposited various amounts. Accordingly, Shri Bharadwaj emphasised that once the order was passed on 5th January, 2001 and all arrears of rent was cleared on the basis of the order passed on 5th January, 2001, the learned Court has not committed any illegality in the matter of dismissing the suit as no arrears were due to be paid. Accordingly, Shri Bharadwaj emphasised that once the order was passed on 5th January, 2001 and all arrears of rent was cleared on the basis of the order passed on 5th January, 2001, the learned Court has not committed any illegality in the matter of dismissing the suit as no arrears were due to be paid. It was further argued by Shri Bharadwaj that the default, if any, committed during pendency of the suit was never raised as a ground for eviction either before the learned trial Court or the first appellate Court or before this Court. It was argued by him that the defaults committed during pendency of the proceedings is not a question framed in this appeal also, and therefore, on this ground Shri Bharadwaj argues that the suit cannot be decreed now. Shri Bharadwaj inviting my attention to the fact that the objection for deciding the question of arrears of rent was pending before the Court from 1997 to 5th January, 2001, the defendants cannot be made responsible for the delay caused in the matter by the Court. It was argued by him that because of the inaction on the part of the Court, the defendants cannot be permitted to suffer. Shri Bharadwaj Joints out that as arrears of rent determined vide order dated 5th January, 2001 and directed to be deposited within three months is complied with by the defendants no case is made out for decreeing the suit on the ground of arrears of rent. In support of the aforesaid contention, he invites my attention to the principles laid down in the case of Rohit Maheshwari v. Dhruv Kumar [2005(1) MPLJ 331], and Nasiruddin and others v. Sita Ram Agarwal [ (2003)2 SCC 577 ]. In support of his contention that the grounds for eviction under section 12(1)(a) of the Act is not made out and that no separate application for condoning the delay is required to be filed in the facts and circumstances of the present case, he has also invited my attention to the judgments rendered by a Bench of this Court in the case of Anandilal v. Shivdayal Pandey [1997 JLJ 817], and Om prakash Gupta (Dr.) v. Ram Prakash and others [ 1994 JLJ 26 ]. 15. 15. Thus, as far as this question, i.e., eviction under section 12(1) (a) of the Act is concerned, the question framed is as to whether the Courts below have committed any illegality in dismissing the suit for arrears of rent. As can be seen from the records, when the suit was filed by the plaintiff and it was contended that rent has not been paid from 1990 onwards, objection was raised by the defendants in the written statement itself and it was their specific case that there is no arrears of rent and all rent up to December, 1995 had been paid. Parties joined issues with each other on the question of arrears of rent, and therfore, the records indicate that the Court proposed to decide this question and finally order dated 5th January, 2001 was passed directing the defendants to pay the entire arrears of rent for a period of three years prior to filing of the suit within fifteen days and thereafter to keep on depositing the rent by 15th of every month. The records further indicate that after receipt of summons and after the order was passed by the trial Court on 5th January, 2001, the following amounts were deposited by the defendants: S.No. Date of Deposit Amount (Rs.) (1) 2.2.1998 440/- for the period of September 1997 to February, 1998 (2) 17.3.1998 40/- (3) 22.4.1998 80/- (4) 24.6.1998 120/- (5) 15.8.1998 120/- (6) 7.11.1998 120/- (7) 6.2.1999 120/- (8) 29.4.1999 120/- (9) 9.8.1999 120/- (10) 7.1.2000 200/- (11) 10.5.2000 200/- (12) 9.11.2000 80/- (13) 15.1.2001 200/- (14) 15.1.2001 200/- (15) 14.3.2001 600/- (16) 25.6.2001 280/- (17) 3.1.2002 480/- (18) 3.1.2004 480/- (19) 24.2.2006 480/- 16. It is clear from the aforesaid that in the written statement itself, the defendants have raised the question with regard to quantum of arrears to be paid and the Court immediately took up the said issue for decision and decided it finally on 5th January, 2001 and granted 15 days time to the defendants to pay all arrears of rent and thereafter deposit the rent due by 15th of every month. As indicated hereinabove, defendants had been depositing rent from 1998 onwards and continued to deposit the rent up to 24th February, 2006. As indicated hereinabove, defendants had been depositing rent from 1998 onwards and continued to deposit the rent up to 24th February, 2006. Neither before the trial Court nor before the first appellate Court it was ever the case of the plaintiff that the rent as required under section 13(1) of the Act after issuance of summons is not deposited. Question framed in this appeal is also not as to whether the suit is liable to be decreed for non-compliance with the provisions of section 13(1) of the Act. The question framed is as to whether the suit was liable to be decreed for non-payment of arrears of rent. Question of payment of arrears which was in dispute between the parties was decided for the first time on 5th January, 2001 and immediately thereafter as per the directions given by the learned Court, the entire arrears have been cleared by the defendants. Both the trial Court and the first appellate Court have recorded a finding that after the order was passed on 5th January, 2001, the defendants have not committed any default and therefore, the Courts below have rightly rejected the prayer for decreeing the suit on the ground of arrears of rent. 17. Even though while deciding the appeal, the learned first appellate Court has referred to the judgment in the case of Anandilal (supra), which was overruled by the Supreme Court in the case of Jamnalal (supra), but the question is as to whether the suit was liable to be decreed on the ground of non-payment of arrears. In this regard, the principles laid down by the Supreme Court in the case of Jamnalal (supra), may be considered. In paragraph 11 of the judgment rendered by the Supreme Court in the case of Jamnalal (supra), the provisions of section 13 and the twin obligations imposed on a tenant in a suit or proceeding instituted against him on the grounds contemplated under section 12 is taken note of and in paragraph 12 it is held that the twin obligations imposed upon under section 13 are independent of each other. The first obligation is with regard to 1ayment of rent and the second obligation is with regard to payment of future rent. The first obligation is with regard to 1ayment of rent and the second obligation is with regard to payment of future rent. Thereafter, in paragraph 14, the provisions of sub-section (2) of section 13 have been taken note of and in paragraph 15, the Supreme Court has observed as under: "......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. ... But where rate of rent is admitted and the quantum of the arrears of rent is disputed (on the plea that the rent for the period in question or part thereof has been paid or otherwise adjusted), sub-section (2) of section 13 is not postulated there under. Therefore, the obligation to pay/deposit the rent for the second and the third period aforementioned, referred to in section 13(1), namely, to deposit rent for the period subsequent to the notice of demand and for the period in which the suit/proceedings will be pending (that is future rent) does not become inoperative for the simple reason that section 13(2) does not contemplate provisional determination of amount of rent payable by the tenant...." 18. In the present case also, the dispute is with regard to arrears of rent as the rate of rent is admitted. It is, therefore, a case where summary enquiry as contemplated under section 13(2) of the Act has to be held and as per the principles laid down by the Supreme Court as indicated hereinabove, the obligation of the defendants to pay or deposit the rent would arise only after the question of arrears and the quantum is determined. It is, therefore, a case where summary enquiry as contemplated under section 13(2) of the Act has to be held and as per the principles laid down by the Supreme Court as indicated hereinabove, the obligation of the defendants to pay or deposit the rent would arise only after the question of arrears and the quantum is determined. The question having been determined only on 5th January, 2001 and the defendants having deposited the entire rent, the principles laid in paragraph 17 in the case of Jamnalal (supra), by the Supreme Court would apply which reads as under: "Where the rate of rent payable by the tenant for the accommodation is not in dispute and the quantum of arrears of rent is not paid/deposited either because the tenant pleads that he has paid the arrears of rent or adjusted the same towards the amounts payable by the landlord or in the discharge of his liability, the tenant succeeds or fails on his plea being accepted or rejected in that behalf by the Court, in such a case sub-section (2) is not attracted because the plea taken by the tenant has to be adjudicated by a full-fledge trial and not I in a summary inquiry postulated for fixing a reasonable provisional rent in relation to the accommodation in question. This being the position a tenant takes the risk of suffering an order of eviction b" raising a dispute in regard to the amount of rent payable by him while admitting the rate of rent and not making payment or deposit under sub-section (1) because where the dispute raised by the tenant is outside the ambit of sub-section (2), sub-section (1) of section 13 of the Act does not become inoperative." 19. In the present case in the written statement after the dispute with regard to arrears of rent was raised by the defendants, the records indicate that the plaintiff wanted defence of the defendants to be struck down and therefore, they filed an application under section 13(6) of the Act. Considering this application and various other applications filed by the parties, the question of arrears of rent was decided by a interlocutory order dated 5th January 2001. Considering this application and various other applications filed by the parties, the question of arrears of rent was decided by a interlocutory order dated 5th January 2001. All the judgments relied upon by Shri A.K. Chitaley, learned senior counsel in this regard have to be viewed in the facts of the present case, the learned Court has determined the question of arrears by a interlocutory order and thereafter the defendants have complied with the order and direction issued by the learned Court, no default is committed by them in payment of arrears of rent. As the question of arrears of rent was decided at this interlocutory stage before the full trial of the suit could be completed and as the entire arrears was deposited by the defendants, as directed in the interlocutory order and at the time of final disposal of the suit as no arrears of rent was due, the learned Court has rightly refused to pass a decree on the ground of arrears of rent. 20. After the question was determined on 5th January, 2001, the learned trial Court granted time to the defendants to deposit the rent and the defendants having deposited the rent, I am of the considered view that the Courts below have not committed any error in dismissing the suit. This is a case where the provisions of section 13(2) of the Act is attracted and when the Court has determined the question of arrears of rent including the question of payment of the arrears beyond the period prescribed for recovery and when the defendants have deposited the entire rent within the time granted by the Court, I am of the considered view that the Courts below have not committed any error in dismissing the suit on the ground of arrears of rent. Merely because, the judgment in the case of Anandilal (supra), is referred to by the learned first appellate Court in the judgment that does not mean that the learned first appellate Court has dismissed the suit after applying the principle laid down in the case of Anandilal (supra), on the contrary this is a case where the Court has found that the question of arrears of rent was determined and the defendants have deposited the entire rent, the application under section 13(6) of the Act was rejected and the time granted to deposit rent, vide order dated 5th January, 2001, there is no material available on record to show that after this order was passed the respondents have committed any default in payment of rent, this ground of default after the order dated 5th January, 2001 was passed , is not raised by the appellant when the matter was pending before the trial Court or before the first appellate Court nor in the memo of appeal before this Court, it is raised for the first time when the matter was being finally heard. Accordingly, in the facts and circumstances of the present case, I find no ground to decree the suit on the ground of arrears of rent. Accordingly, fourth question is answered by holding that the Courts below have not committed any illegality in dismissing the suit on the ground of arrears of rent. Question No. (1) 21. Thereafter, the first question framed with regard to subletting has been argued. This question reads as under: "Whether the payment of rent by a sub-tenant in the name of tenant validates the sub-tenancy created unlawfully in contravention of section 14 of the M.P. Accommodation Control Act? 22. From the facts and have on record, it is seen that Ganesh Ram Sharma and Narayanibai were brother and sister. Bhojanalaya in the name and style of "Narayani Bhojnalaya" was being run by Ganesh Ram and Narayanibai in the suit premises. Ganesh Ram expired on 23rd March, 1971. His death certificate exhibit D-24 is available on record. It is the case of the defendants that after death of Ganesh Ram on 23rd March 1971, Narayanibai and her two sons, present defendants; Chandrakant Pandey and Munnalal Pandey were carrying on the business of running the Bhojanalaya and rent for the suit premises was being deposited by them. His death certificate exhibit D-24 is available on record. It is the case of the defendants that after death of Ganesh Ram on 23rd March 1971, Narayanibai and her two sons, present defendants; Chandrakant Pandey and Munnalal Pandey were carrying on the business of running the Bhojanalaya and rent for the suit premises was being deposited by them. Available on record is a registration certificate of "Narayan Bhojanalaya" issued in Samvat 2009. This document of registration is exhibit P-2. Available on record are various rent receipts issued from time to time. Exhibit D-18, D-20, D-21, D-22 are some of the rent receipts issued in this regard. These rent receipts indicate that all the rent receipts are issued after 23rd March, 1971, i.e., after death of Ganesh Ram. In some of the rent receipts, Narayanibai is shown to have paid the rent and in some other rent receipts either defendants, namely; Chandrakant Pandey and Munnalal Pandey are shown to have paid the rent. Even though, in all these rent receipts and in the sale-deeds executed by Gopala Krishna and Ramkrishna Chhaparwal in favour of Somdutt Saboo and Somdutt Saboo in favour of the present appellant, only Ganesh Ram Sharma is shown to be tenant of the suit premises but in the rent receipts issued continuously after 1971 up to the year 1990, it is shown that the rent is paid either by Narayanibai or by Chandrakant Pandey. In all the receipts after March, 1971, the signature of Narayanibai and Chandrakant Pandey are available. A perusal of the original rent receipts available on record indicates that even after death of Ganesh Ram Sharma in the year 1971, rent was being collected from the suit premises and the rents were paid either by Narayanibai or by Chandrakant Pandey and they were signing on the rent receipts, for example in the rent receipt exhibit D-3 it is Narayanibai who has paid rent Rs.20/-.Similarly, in rent receipt D-2 dated 17th November, 1989 showing payment of Rs.200/- being rent for the period of 1st January, 1981 to 31st May, 1989. In this receipt, signature of Narayanibai and her name are available in portion marked 'B to B' indicating that she has paid the rent. Similarly, exhibit D-7 is the rent receipt showing signature of Narayanibai. In this receipt, signature of Narayanibai and her name are available in portion marked 'B to B' indicating that she has paid the rent. Similarly, exhibit D-7 is the rent receipt showing signature of Narayanibai. Available on record are various rent receipts, exhibit D-8, D-10, D-15 onwards and in all these documents rent was paid either by Narayanibai or Chandrakant Pandey and the rent was accepted by the original landlords, Gopal Krishna and Rarnkrishna Chhaparwa1 and they have not objected to the occupation and possession on the suit property by Narayanibai and her sons, namely; Chandrakant Pandey and Munnalal Pandey. It is in the back drop of these facts that the question of sub-tenancy involved in this appeal is to be decided. Shri Chitaley, learned senior counsel argues that merely because rent is accepted from a person that does not validates creation of sub-tenancy unilaterally, therefore, he submits that this question is incorrectly decided by the learned Courts below. Inviting my attention to the following judgments: (1) Gajra Bevel Gears Ltd. (M/s.) v. Manohar and others [1997(2) JLJ i27]; (2) Prahlad Das and another v. Madholal [(1996)11 MPJR 239]; (3) Bhanwarlal v. Ratanlal [ 1986 JLJ 780 ]; and (4) Harshawardhan Chokkani v. Bhupendra N. Patel and others [ (2002)3 SCC 626 ], it was emphasised by Shri Chitaley, learned senior counsel that the acceptance of rent will not create the relationship of landlord and tenant and in dismissing the suit on the ground of subletting, it was argued by him that the Courts below have committed grave error in this regard. 23. Refuting the aforesaid and taking me through the rent receipts and the statements of witnesses, Shri Bharadwaj, learned counsel for the defendant respondents emphasised that the sub-tenancy is not proved and the Courts below have not committed any error in dismissing the suit on the ground of sub-tenancy. Placing reliance on various judgments of the Supreme Court and this Court, Shri Bharadwaj emphasised that the ground of subletting is not proved and the substantial question framed is liable to be answered in favour of the defendants. 24. I have heard learned counsel for the parties at length on this question and perused the documents available on record. 25. Placing reliance on various judgments of the Supreme Court and this Court, Shri Bharadwaj emphasised that the ground of subletting is not proved and the substantial question framed is liable to be answered in favour of the defendants. 24. I have heard learned counsel for the parties at length on this question and perused the documents available on record. 25. Various rent receipts more than twenty in number available on record indicates that even after death of Ganesh Ram Sharma on 23rd March, 1971, Narayanibai and her sons, namely the present defendants were occupying the suit premises PW3 Gopalkrishan Chhaparwal who was the original landlord of the suit premises admits that it was his Muneem and clerk who was going to receive the rent for the suit premises. It was not their case that they were not aware about death of Ganesh Ram on 23rd March, 1971. In all the rent receipts issued in the year 1979, 1985 and upto 1990, it is seen that the rent is paid either by Narayanibai or her son Chandrakant Pandey (DW 1). This indicates that right from 23rd March, 1971 upto 1990 Gopalkrishan Chhaparwal (PW3) did not have any objection to the occupation of the suit premises by Narayanibai and her two sons. He was accepting the rent from them and the establishment in the name and style of "Narayani Bhojanalaya" which was run by Ganesh Ram was continued by his sister and her sons. It was the case of the defendants that the "Narayani Bhojanalaya" was a joint venture of N arayanibai and Ganesh Ram and a oral lease is in their favour was granted. There is no rent note or lease deed available on record and the fact that Narayanibai and Chandrakant Pandey were paying rent for more than 29 years and acceptance of the rent by the original landlord Gopal Krishan and Ramkrishan Chhaparwal has been considered by both the Courts below and it has been held that once the rent was accepted from these persons for more than 29 years and they were permitted to occupy the suit premises without any objection, the ground of subletting is not made out. It is held by the learned Courts below that it is a case where the consent of the owner is deemed to be granted because of his conduct for a continuous period of more than 29 years in accepting rent and not objecting to the occupation of the premises legally by Narayanibai and her sons. 26. I am of the considered view that in the facts and circumstances of the present case, when the original landlord of the suit premises were accepting the rent for a long period of about 29 years from the defendants/ present respondents and their mother Narayanibai, it cannot be held that the suit premises was unilaterally parted with by the original tenant Ganesh Ram Sharma or his wife Smt. Laxmibai. Accordingly, the Courts below have not committed any error holding that the subletting is not made out. In view of the above, the first question framed is answered by holding that payment of rent continuously for a period of 29 years by the defendants indicates that no unilateral sub-tenancy is created. It is a case where the defendants were occupying the suit premises with the consent, permission and knowledge of the original landlords who were accepting the rent for about 29 years. Accordingly, in dismissing the suit on the ground of sub-tenancy, learned Courts below have not committed any error. Question No. (2) 27. As far as the second question with regard to bona fide need is concerned, Shri A.K. Chitaley, learned senior counsel argued that the learned Courts below have dismissed the suit on the ground of bona fide need only because the plaintiff is a partner with his father in the business now run by them in the suit premises. It was argued by him that if the plaintiff wants to start his own business, his claim on the ground of bona fide need cannot be rejected because he is already having a joint partnership business with his father. It was argued that the bona fide need should be objectively considered and merely because he is partner in a business run by the father, the bona fide need does not seize to be in existence. It was argued that the bona fide need should be objectively considered and merely because he is partner in a business run by the father, the bona fide need does not seize to be in existence. Learned senior counsel further argued that if a person has ambition and desire to extend his business then the Court cannot refuse or come in the way by holding that the person concerned is already having a partnership business, and therefore, his bona fide need is not establisbhed. Inviting my attention to the following judgments Shri Chitaley, learned senior counsel argued that the bona fide need having established, the learned Courts have committed grave error in dismissing the suit; (1) Deenanath v. Pooranlal [ 2001(2) JLJ 196 ]; (2) Mansharam v. Bhagwandas [(1992)1 MPJR 191]. 28. Shri Bharadwaj, learned counsel for the respondents refuted the aforesaid and inviting my attention to the judgment rendered by this Court in the case of Sunderdas v. Kamladevi [SA No.74 of 1981 decided on 10th May, 1991 (exhibit D-2)], he has argued that initially the mother of the plaintiff had filed a suit wherein it was stated that she wants the suit premises vacated for running business of Garments and Readymade clothes which is to be managed by her son. This suit was filed for some other premises and after decreeing the suit premises, the suit premises was sold by the plaintiff. Inter alia contending that now again the same ground is being raised and no bona fide need is established, Shri Bharadwaj submits that no case for decreeing the suit on the ground of bona fide requirement of the plaintiff is made out. In support of his contention, he invites my attention to a unreported judgment in the case of Uday Shankar Upadhyaya and others v. Naveen Maheshwari [SA No. 74 of 1992 decided on 6th October, 2005], and argues that suit premises vacated by decree passed in favour of the mother of the plaintiff in SA No. 74 of 1981 (supra), and availability of other premises has not been pleaded, the Courts have committed no error in dismissing the suit on the ground of bona fide need. He also invites my attention to the following judgments in support of his contention to indicate the fact that no case for bona fide requirement is made out in the peculiar facts and circumstances that exist in this case. He also invites my attention to the following judgments in support of his contention to indicate the fact that no case for bona fide requirement is made out in the peculiar facts and circumstances that exist in this case. The judgments are, Mattulal v. Radhelal [1975 JLJ 1], Sarvate T.B. v. Nemichand [1965 JLJ 973], Manoharlal Gopilal Pande v. Dr. Abdul Mazid Khan [ (1997)1 MPLJ 232 ]. It is, true that the question of bona fide need is a matter which has to be decided in a objective manner taking into consideration the requirement of the person concerned who pleads bona fide need of the suit premises and the Courts while considering the question of bona fide need cannot substitute the need by their own assumptions or on the ground of availability of other suitable accommodation. The question of expanding the business or starting business or diverting to some other business is the sole prerogative to be decided by the person concerned and the suit for eviction of bona fide need cannot be rejected on the ground that the plaintiff or the person concerned is already having the business and he should continue with the same. However, a question to the effect that the need projected in the suit is a bona fide need actually existing and is not a device to get the suit premises evicted for any other collateral purpose can be evaluated by the Court. It is, therefore, required to be seen whether in the facts and circumstances of the case, the bona fide need as pleaded is real and a genuine bona fide need or it is only made for the purpose of some other collateral purpose unconnected with the bona fide requirement as pleaded in the plaint. The evidence and the material that has come on record indicates that the plaintiff is the only son of Rameshchand Agrawal. Apart from the plaintiff, Rameshchand Agrawal has two daughters who are already married and settled elsewhere. The plaintiff and his father are partners in a business which is already established and running in the suit premises. Plaintiff has 40% share and the business which is now established by the plaintiff and his father is already similar to the one which he proposes to establish in the suit premises. The plaintiff and his father are partners in a business which is already established and running in the suit premises. Plaintiff has 40% share and the business which is now established by the plaintiff and his father is already similar to the one which he proposes to establish in the suit premises. The plaintiff submits that after the suit premises is got vacated he would resign from the partnership firm and wants to establish his own business. Order sheets in the proceedings indicate that the plaintiff has not proved the fact of his intention to resign from the partnership firm at some point of time during pendency of the proceedings, the plaintiff came out with a case that he has already resigned from the partnership firm. It was found that he made a false statement and he has not resigned from the firm. Both the Courts have found that the claim of requirement of the suit premises for establishing a separate business is not a bona fide claim. The records indicate that earlier plaintiffs mother Smt. Kamla Devi filed a suit against Sunderdas who was having a rented premises and was evicted from the suit premises on the ground of bona fide need of plaintiffs mother to start some readymade cloth shop in the suit premises. The proceedings that were initiated by mother of the plaintiff travelled to this Court in SA No.74 of 1981 (supra) and in that case the argument put up by the defendant is that the plaintiffs mother is a 'Pardanasheen' woman and she cannot run the business herself as she is incapable of doing business. To counter this, it was the case of the plaintiffs mother that it is her son who will start the new business. Her son is already doing partnership business with his father and after the suit premises is vacated, her son will manage the business. This plea was accepted by this Court and suit was decreed and after order of eviction was passed for vacating the suit premises on the ground of bona fide need of plaintiff, Smt. Kamla Devi and her son to start the business in the suit premises it was vacated by the defendant Sundardas after decision in SA No.74 of 1981 (supra). The suit premises which was vacated by Sundardas was sold by the plaintiff. The suit premises which was vacated by Sundardas was sold by the plaintiff. After considering these facts, it is found by the learned Courts below that the ground of bona fide need is not established as on the same ground in the earlier case also, another premises leased to Sundardas was vacated and thereafter the property was sold on a higher price. This finding and approach of the learned Courts below in holding that the bona fide need is not established is a proper finding and I find no error in the same. It is a I case where the plaintiff has a well-established business along with his father and earlier also along with his mother, he had come out with similar case and when this plea was allowed...a premises other than the one involved in the present suit was vacated and the plaintiff instead of starting his own business has sold the vacated premises and has now filed present suit on the same ground. Under such circumstances, the learned Courts below have not committed any error in dismissing the suit on the ground of bona fide need. Accordingly, the aforesaid question framed is answered by holding that the Courts below have acted in just and reasonable manner and after applying all the objective tests, the question of bona fide requirement has been decided. Once in the suit filed the plaintiffs mother it was her case that her son will manage the business a decree for eviction was passed, and thereafter the said property is sold, it cannot be said that the learned Courts below were unjustified in dismissing the suit on the ground of bona fide need and as the plaintiff has failed to establish his case of bona fide need. Accordingly, I find no case made out for interference on this ground. Even though, the appeal was admitted and the questions framed have been answered by this Court, it may be taken note of that present is a case where the suit has been dismissed concurrently by both the Courts and the contention of the plaintiff for bona fide need and subletting have been rejected concurrently by both the Courts after meticulously scrutinizing and discussing the entire evidence that has come on record. A perusal of the judgment and decree passed by the first appellate Court indicates that in a judgment consisting of 96 paragraphs each and every aspect of the matter as has been detailed hereinabove is considered and the suit has been dismissed. That being so, I am of the considered view that concurrent finding recorded by both the Courts below in the matter of dismissing the suit of the plaintiff is a reasonable finding and the same does not warrant any interference now in this second appeal. 29. Accordingly, answering the questions framed against the appellant and finding no substance in the appeal, the same stands dismissed without any order so as to cost.