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Madhya Pradesh High Court · body

2008 DIGILAW 629 (MP)

Bhogilal Jain v. Arvind Sugandhi

2008-04-28

S.R.WAGHMARE

body2008
ORDER 1. This is a tenant's appeal filed by the appellants being aggrieved by the judgment and decree of eviction dated 18.8.2007 passed in Civil First Appeal No.73/07 by the 6th Additional District Judge, Indore confirming the decree of eviction passed under section 12 (1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act" for brevity) by the trial Court. 2. Brief facts necessary for elucidation are that the plaintiff respondent had filed the suit for eviction in respect of his suit shop situated at the ground floor bearing No.62, Cloth Market, Indore against the present appellants, on the ground of non-payment of rent under section 12(1)(a) of the M.P. Accommodation Control Act, under section 12(1)(c) since the rented premises were being used for the purpose other than for which it was let out which was being used as god-own contrary to the conditions and under section 12(1)(d) of the Act, since for more than six months the tenanted suit shop was closed and not being used, more importantly, under S.12(1)(f) of the Act on the ground of bona fide need, the plaintiff needed the suit premises for setting up his own. business of selling cloth and since there was no other alternative accommodation available to the plaintiff of his own, he required the suit shop. The appellants-defendant resisted the suit on the ground that the respondent-plaintiff was carrying on business of incense and scent for decades as his ancestors also carried on the same business in the said shop situated at Rajwada, Indore and denied the genuineness of the requirement and stated that the respondent-plaintiff had also the possession of the house No.82, Pandharinath, Indore (Ada Bazar) as well as 27, Kanungo Bakhal, Indore and it could not be said that there was no other alternative accommodation in the possession of the respondent-plaintiff. Moreover, the bona fide need was also denied and stated that the eviction suit had been filed with the ulterior motive for enhancing the rent and the suit was filed on mala fide ground, prayed for rejecting the eviction. 3. The trial Court on considering the evidence led by both the parties concluded that the plaintiff was unable to establish the ground under section l2(1)(a)(c)(d) of the Act, however, decreed the suit on ground of l2(1)(f) of the Act i.e. bona fide need. 3. The trial Court on considering the evidence led by both the parties concluded that the plaintiff was unable to establish the ground under section l2(1)(a)(c)(d) of the Act, however, decreed the suit on ground of l2(1)(f) of the Act i.e. bona fide need. Thus, being aggrieved the defendant Bhogilal and Pukharaj filed the regular civil first appeal before the appellate Court which upheld the judgment and decree passed by the Court below and hence the present second appeal. 4. The learned counsel for the appellant Shri Saraf has urged that the appellate Court had erred in upholding the findings of the trial Court regarding bona fid~ need of the plaintiff, when there was suppression of the fact that the plaintiff was carrying on business of the oil and incense at 13, Rajwada Chowk for several years and there was no intention regarding the same in the plaint or affidavit under Order 18 rule 4 of the CPC. 5. Learned counsel further urged that the trial Court had erred by not allowing the defendant appellant's application for amendment to bring these subsequent facts on record. Relying on Hasmat Rai and another v. Raghunath Prasad [1981 JLJ 716= AIR 1981 SC 1711 ], the counsel stated that the trial Court could not have refused the amendment that it was delayed as it was necessary to bring on record that the landlord was in possession of larger premises and that was sufficient for his purpose and he also relied on the said case to emphasis that in absence of pleadings as to the extent of landlord's requirement, High Court should have held that premises in landlord's possession as sufficient for his possession. 6. 6. The learned counsel for the appellant further relied on Hamimuddin Saifi v. Prem Narayan Barchhiha [ 1997(2) MPLJ 360 ], to state that bona fide requirement must be required bona fide that bona fide requirement must be for starting or continuing the business; that the above named business must be for the business of the landlord, or any of his major sons, or unmarried daughters, as the case may be; that, either the landlord or the person for whose benefit the landlord holds the accommodation must be the owner of the same; that the landlord or the person mentioned herein before, has no reasonably suitable non-residential accommodation of his own in his occupation in the city or town where the accommodation is situated. Learned counsel urged that the appellate Court had failed to consider the absence of material on record to establish the plaintiff's bona fide need, and also the suppression regards the fact that the plaintiff had an established business of oil and incense, whereas the need pleaded was for running the business of clothes and both the Courts had erred in decreeing the suit under section 12(1) (f) of the M.P. Accommodation Act, prayed for setting aside the same. 7. Learned counsel for the plaintiff respondent, on the other hand stated that the need was genuine, the oil and incense business was that of the joint family, whereas the plaintiff wanted to start his own business of cloth as fully stated in the plaint and pleadings; moreover learned counsel for the plaintiff respondent stated that there was no suppression as alleged, the landlord is not obliged to aver in his plaint that he is in possession of residential accommodation, which is not suitable for non-residential purpose, these are not the requirement of clause (f) of the section 12 of the M.P. Accommodation Act. To bolster his submissions, he relied on: (a) Prem Narayan Barchhiha v. Hakimuddin Saifi [ 1999(2) JLJ 260 = AIR 1999 SC 2450 and Full Bench Rent Cases, p.304] : When landlord seeking eviction for non-residential accommodation for setting his son in business then under the Act he is not required to disclose his other residential accommodation. To bolster his submissions, he relied on: (a) Prem Narayan Barchhiha v. Hakimuddin Saifi [ 1999(2) JLJ 260 = AIR 1999 SC 2450 and Full Bench Rent Cases, p.304] : When landlord seeking eviction for non-residential accommodation for setting his son in business then under the Act he is not required to disclose his other residential accommodation. It is not part of the obligation of the landlord seeking eviction of a tenant under clause (f) of section 12(1) of the Act to aver in his plaint/petition the facts that he is in occupation of residential accommodation and that it is not suitable for non-residential purposes for these facts are not the requirement of clause (f). (b) Gitabai w/o Kashiram v. Harish s/o Umashankar Agrawal and another [2003(11) MPACJ 378]: Where plaintiff required the suit accommodation for her son's business, who wants to do business of his own and that plaintiff does not have any other reasonable suitable alternative accommodation of her own in city, then it satisfied the requirement of pleading and the rest then follows in evidence. (c) Pyarelal Agrawal (dead) through LR Subhash Agrawal v. Kamalchandra Jain [2007(1) MPACJ 152]: A landlord may have number of accommodations but for the sake of refusing eviction it must come on record to show that any of such shop/premises was vacant and suitable for the purpose of proposed business; unless the premises is occupied by landlord, he is not required to specifically plead and prove either about its non-availability or about it's unsuitability. (d) Lingala Kondala Rao v. Vootukuri Narayana Rao [ AIR 2003 SC 2077 and Full Bench Rent Cases, p.151] : A non-residential building owned by Joint Hindu Family and in its occupation would not be included within the meaning of the expression "which is( his own or to the possession of which he is entitled". (e) Tukaram s/o Chintaman v. Padamkar s/o Ganpatrao Gade [(1979 MPRCJ 309] When the plaintiff alleges that he needs these premises and there is no other suitable residential accommodation, it clearly indicates that what is available with him, is not suitable. It was not at all necessary for the plaintiffs to plead anything further. (e) Tukaram s/o Chintaman v. Padamkar s/o Ganpatrao Gade [(1979 MPRCJ 309] When the plaintiff alleges that he needs these premises and there is no other suitable residential accommodation, it clearly indicates that what is available with him, is not suitable. It was not at all necessary for the plaintiffs to plead anything further. (f) Smt. Shakuntala Bai w/o Late Babulal Bhavsar v. Abdul Haq s/o Mohammad Ibrahim [2003(II) MPACJ 23]: Availability of alternative accommodation is an issue of fact, once it is gone into and finding recorded then the doors for its challenge are not open. And for more or less on same grounds also relied on : 1. Nanakram and another v. Suresh Narayan Sharma [2002(1) MPACJ 118]; 2. Dr. V.K. Agrawal v. Rameshwar Prasad [2004(II) MPACJ 128]; 3. Raj Kumar (Dr.) v. Brijesh Kumar [1985 JLJ 621=1985 MPRCJ 71]; 4. State Bank of Indore v. Satya Narayan Bajaj [2002(II) MPACJ 115]. 8. The learned counsel for the respondent plaintiff fully supported the impugned judgment as well as the judgment of the trial Court and stated that there was no infirmity in the same. He also urged that the plaintiff was in genuine need of the premises for almost a decade now and prayed for dismissal of the appeal. 9. 8. The learned counsel for the respondent plaintiff fully supported the impugned judgment as well as the judgment of the trial Court and stated that there was no infirmity in the same. He also urged that the plaintiff was in genuine need of the premises for almost a decade now and prayed for dismissal of the appeal. 9. On considering the above submissions, I find that the only grievance of the appellant being that the Courts below had erred in passing the decree of eviction under section 12 (1) (f) of the Act, when there was no specific pleading that the alternate accommodation available with the plaintiff was not suitable for his needs is not at all a ground well-founded; since, the plaint clearly states that the plaintiff wanted to start a cloth/fabric business for himself apart and distinct from the joint family business, then under these circumstances submission of the counsel for the appellant that there has been suppression of facts cannot be acceded to; moreover the trial Court had rightly rejected the application for amendment under Order 6 rule 17 for bring the fact of business of oil and incense being run by the plaintiff at 13, Rajwada Chowk, Indore since it was well within the knowledge of the appellant/defendant and the application did not refer to a subsequent event of acquisition of any premises averred to the plaintiff and hence the case of Basmal Rai (supra), cited by the counsel for the appellant is not of any help to defendant appellant. 10. Thus on considering the sum total of the submissions, I do not find that any substantial question of law arising in the present appeal. The questions of law as proposed by the appellant are all questions of the fact duly considered by both the Courts below. There is a concurrent findings of facts against the appellant. The mere fact that if at all the plaintiff has not pleaded the fact that the alternative accommodation available was not suitable for his needs is well considered by both the Courts below that the houses were joint family property and the business was of the joint family business whereas •the plaintiff wanted to start a business of his own. 11. Thus, under the facts and circumstances of the case, I do not find any infirmity in the order impugned. 11. Thus, under the facts and circumstances of the case, I do not find any infirmity in the order impugned. The appeal is dismissed in limine as being sans merit. No order as to costs.