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2008 DIGILAW 84 (CHH)

LAXMI PRASAD v. ARUN KUMAR AGRAWAL

2008-03-31

D.R.DESHMUKH

body2008
JUDGMENT 1. The unsuccessful appellants/defendants have preferred this appeal against the judgment and decree dated 16.07.1997 passed in Civil Appeal No. 16-A/ 1995 by 7th Additional District Judge, Bilaspur, affirming the decree for eviction of the appellants/defendants from the suit premises on grounds under Section 12(1 lea) and (m) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as 'the Act ') . 2. By order dated 27 .02.2008, for not substituting the legal representatives of the deceased appellant/defendant No.1 Laxmi Prasad, the appeal in so far as the appellant Laxmi Prasad is concerned has abated. 3. It is not in dispute that the deceased Laxmi Prasad and the appellant defendant No.2 Raj Kumar were the joint tenants in the suit house situated in Firangipara, Kargi Road (Kota), District Bilaspur, shown by green ink in the map attached with the plaint. The averment in plaint paragraph 5 that the appellants/ defendants had constructed a Parchhi in the courtyard of the suit house is also not in dispute. 4. The respondents/plaintiffs had instituted the suit on 04.07.1985 after giving notice dated 18.06.1985 for eviction under Sections 12 (1) (a) and (m) of the Act. The appellants/defendants had in reply to the said averments pleaded that construction of the said Parchhi was undertaken with due oral permission of the father of the respondents/plaintiffs who had asked them to adjust the amount of Rs. 1500/- utilized in the construction of the Parchhi towards rent. The trial Court held that the appellants/defendants were in arrears of rent from March, 1985 to June, 1985. The appellants/defendants had, neither in written statement nor at any time during the trial, raised any objection that the suit was premature since not filed after the expiry of two months from the date of service of notice for eviction on ground under Section 12(1)( a) of the Act. Such objection was not raised even at the stage of first appeal. 5. The following substantial questions of law arise for determination in this appeal: " (i) Whether the lower appellate Court was right in decreeing the suit against the appellants under Section 12(1)(m) of the M. P. Accommodation Control Act, 1961 in absence of either pleading or proof that the construction of Parchhi has materially altered the accommodation to the detriment of the landlord's interests or is likely to diminish its value substantially? (ii) Whether a decree under Section 12(l)(a) of the M. P. Accommodation Control Act, 1961 could have been granted in view of the fact that the suit was filed on 4-7-1985 before the expiry of two months from the date of service of notice of demand dated 18.6-1985?" 6. Shri H.S. Patel, learned counsel for the appellant contended that in absence of a specific pleading by the respondents/plaintiffs that the construction of the Parchhi had materially altered the accommodation to the detriment of the landlord's interests or was likely to diminish its value substantially, both the Courts below erred in decreeing the suit for eviction against the appellants under Section 2(1)(m) of the Act, 1961. Reliance was placed on Sheel Nikelan, Bhopal V.S.R. C.Shalla1, and Shivshankar Vs. (Smt.) Bagdibai.1t was argued that the suit filed by the plaintiffs was premature as it was filed before the expiry of two months of the service of notice for eviction on the ground under Section 12(1)(a) of the Act. Reliance was also placed on Nathulal Garg Vs. Chhotte Lal, Dayaram & Others Vs. Smt. Sita Bai and Rajesh Shrivastava Vs. Sant Ram Dass. 7. On the other hand, respondent No.2/plaintiffShri Arun Agrawal, Advocate who appeared in person argued that under Order 6 Rule 2(1) of the C.P.C. the pleading has to state only material facts and not the evidence. The plaintiff had pleaded that the construction of Parchhi was without obtaining permission of the landlord and was illegal. In cross-examination of the plaintiff, it also surfaced that the appellant/defendant had undertaken the construction of a Parchhi as a shed for goats purchased by him. It was urged that the purpose for which the construction of a Parchhi was undertaken had thus radically altered the accommodation to the detriment of the landlord's interests. It was further contended that the appellant/defendant No.2 had admitted in cross-examination that the written statement was not signed by his father Laxmi Prasad, appellant/defendant No.1 and that written statement was neither prepared at his instance nor read over to him by the counsel and that the appellant/defendant No.2 did not require the suit accommodation and was willing to vacate the san1e immediately. It was urged that in view of the above statement both the Courts below were justified in ignoring the defence taken by appellants/defendants. It was urged that in view of the above statement both the Courts below were justified in ignoring the defence taken by appellants/defendants. Lastly it was submitted that the appellant defendants did not raise any objection either in the written statement or at any time during trial that the suit was premature. Such objection was also not taken by them in First Appeal. The appellants/defendants can therefore not be permitted to belatedly urge such a plea that the suit was premature for non-compliance of Section 12(1)(a) of the Act as that would cause hardship, may be irreparable prejudice rule respondents/plaintiffs because of lapse of time. Reliance was place on Vithalbhai Pvt. Ltd. Vs. Union of India, and Popat and Kolecha Property Vs. State Bank of India Staff Association. 8. The trial Court granted decree for eviction under Section 12(1)(a) as also (m) of the Act in favour of the respondents/plaintiffs while ignoring altogether the stand taken by the appellant/defendant Rajkumar in his statement paragraph 5. The lower appellate Court dismissed the appeal while affirming the finding of the trial Court in toto. 9. Having considered the rival submissions and case laws cited, I have perused the record. It is true that the suit for eviction of the appellants/defendants under Section 12(1)(a) was premature since it was filed on4.7.1985 i.e. before the expiry of the two months from the date of service of notice dated 18.06.1985. But no objection to this was taken by the defendants in the written statement or at any time during the trial of the suit or even at the first appellate stage. Even in second appeal, this ground was not taken by the appellants. It appears that on the basis of arguments advanced at the stage of admission, the question of law relating to the suit being premature was framed. In Vithalbhai Pvt. Ltd. Vs. Union of India6 (supra), it was observed by the Apex Court as under: "22. Where the right to sue has not matured on the date of the institution of the suit an objection in that regard must be promptly taken by the defendant. The Court may reject the plaint if it does not disclose the cause of action. It may dismiss the suit with liberty to the plaintiff to file a fresh suit on its maturity. The Court may reject the plaint if it does not disclose the cause of action. It may dismiss the suit with liberty to the plaintiff to file a fresh suit on its maturity. The plaintiff may himself withdraw the suit at that stage and such withdrawal would not come in the way of the plaintiff in filing the suit on its maturity. In either case, the plaintiff would not be prejudiced un the other hand, if the defendant by his inaction amounting to acquiescence or waiver allows the suit to proceed ahead then he cannot be permitted to belatedly urge such a plea as that would cause hardship, may be irreparable prejudice, to the plaintiff/because of lapse of time. If the suit proceeds ahead and at a much later stage the Court is called upon to decide the plea as to non-maintainability of the suit on account of its being premature, then the Court shall not necessarily dismiss the suit. The Court would examine if any prejudice has been caused to the defendant or any manifest injustice would result to the defendant if the suit is to be decreed. The Court would also examine if in the facts and circumstances of the case it is necessary the drive the plaintiff to the need of filing a fresh suit or grant a decree in the same suit inasmuch as it would not make any real difference at that stage if the suit would have to be filed again on its having matured for filing." 10. Applying the principle laid down by the Apex Court, it is at once noticed that the objection as to maintainability of the suit for eviction under Section 12(1)(a) of the Act was neither taken in the written statement nor during trial of the suit and also in first appeal or even in the memo of second appeal. Therefore, such an objection not having been taken at a preliminary stage it would be a travesty of justice if the appellants/defendants are allowed to urge such a ground for the first time while arguing in second appeal on admission. In any case, no notice was required for filing a suit for eviction under Section 12(1)(m) of the Act. Therefore, such an objection not having been taken at a preliminary stage it would be a travesty of justice if the appellants/defendants are allowed to urge such a ground for the first time while arguing in second appeal on admission. In any case, no notice was required for filing a suit for eviction under Section 12(1)(m) of the Act. In this view of the matter, the substantial question of law No.2 is answered that the objection relating to the suit for eviction under Section 12(1)(a) of the Act having been filed after the expiry of two months from the date of service of notice of demand not having been taken, no prejudice was caused to the defendants and the Courts below were justified in granting a decree for eviction of the appellants/defendants under section 12(1)(a) of the Accommodation Control Act. It is also pertinent to note that the appellants/defendants did not deposit any rent in Court till 6.1.90 i.e. more than 4 years after the institution of the suit. Therefore, the appellants/ defendants cannot get benefit of protection against eviction as contemplated by Section 13(1) and (5) of the Act. 11. The only question that now requires to be considered is whether in the absence of specific averments in the plaint that the construction of Parchhi by the appellants/defendants had materially altered the accommodation to the detriment of the landlord's interest or was likely to diminish its value substantially, a decree under Section 12(1)(m) of the Act could be granted in favour of the respondents/ plaintiffs. Section 12(1)(m) of the Act is as under: "(m) that the tenant has, without the written permission of the landlord, made or permitted to be made, any such construction as has materially altered the accommodation to the detriment of the landlord's interest or is likely to diminish its value substantially;" A plain reading of the above provision leaves no room for any doubt that in order to seek eviction of the tenant under Section 12(1)(m) of the Act, the landlord has to aver and prove that the construction made by the tenant was, (a) without the written permission of the landlord and (b) had materially altered the accommodation to the detriment of the landlord's interest, or (c) is likely to diminish its value substantially. In the present case, the plaintiff did not aver that the construction by the tenant had materially altered the accommodation to the detriment of the landlord's interest or was likely to diminish its value substantially. In the evidence also, the respondent/plaintiff admitted in paragraph 17 that despite the construction the suit accommodation occupied by the defendants was completely safe. Atul Kumar Agrawal, respondent/plaintiff No. 1 had admitted in paragraph 10 of his testimony that he had never visited the suit accommodation to see the nature of construction by the tenants, and therefore, was not in a position to state whether Parchhi was open or closed. In paragraph 11, he further admitted that the hut was made of raw mud and min water used to damage the walls. This would show that the construction of Parchhi, if any, by the tenant was in no manner likely to diminish the value of the suit house substantially or alter materially the nature of accommodation to the detriment of the land lord 's interest. 12. In Popat and Kotecha Property V.5. State Bank of India Staff Association7 (supra), it was held that Order 6 Rule 2 of the C.P.C. states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that even pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. The words "material facts" show that the facts necessary to constitute the cause of action must be stated. It is thus clear that in the absence of specific averments that the construction made by the appellants/defendants had materially altered the accommodation to the detriment of the landlord's interest or was likely to diminish its value substantially and also in the absence of any proof in this regard, both the Courts below have erred in granting a decree for eviction of the appellants/defendants under Section I 2(1)( m) of the Act. 13. In the result, the appeal is partly allowed. 13. In the result, the appeal is partly allowed. The impugned judgment and decree for eviction of the tenant under Section 12(1)(m) of the Act passed by the trial Court and affirmed by the lower appellate Court is set aside while affirming the decree for eviction under Section 12(1)( a) of the Act. Appeal Partly Allowed.