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2008 DIGILAW 855 (MP)

Taradevi Gupta v. Deepak Jain

2008-07-10

K.K.LAHOTI

body2008
JUDGMENT 1. This is defendant's appeal aggrieved by the judgment and decree dated 28.3.2006 in Civil Appeal No. 15-A12005 by Additional Judge to the Court is 1st Additional District Judge, Hoshangabad by which judgment and decree dated 31.8.2004 in Civil Suit No. 24-A12004 by Civil Judge Class 1, Itarsi was affirmed. The Court below decreed the suit of the plaintiff-respondent under section 12 (1) (e) and (h) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act"). This appeal was admitted on 28.6.2006 on the following substantial question of law: "Whether in view of section 18 of the M.P. Accommodation Control Act, 1961, the decree under section 12 (1) (e) and (h) can be passed?" 2. Learned counsel for appellants submitted that the Court below erred in granting a decree under section 12 (1) (e) and (h) of the Act. Section 18 of the Act specifically provides re-entry of the tenant in the premises after repairs and rebuilding. The trial Court granted a decree under section 12 (1) (h) of the Act which specifically provides re-entry in the premises after the reconstruction while under section 12 (1) (e) of the Act, there is no such provision. Aforesaid both grounds are conflicting to each other and such decree could not have been passed by the Court below. It is further submitted that in case, premises are required for reconstruction then a decree under section 12 (1) (e) of the Act is redundant, as such premises cannot be used for residential purposes because the plaintiff"' respondent sought eviction for reconstruction of the premises. It is submitted that judgment and decree passed by the Court below may be set aside and the suit of the plaintiff-respondent may be dismissed. 3. Sarvashree Vijay Nayak and D.K. Jain, learned counsel appearing on behalf of the respondent submitted that the controversy involved in the case has been settled by the Division Bench in T.R. Sah v. Smt. Kundan Kaur and others [ 2006 (1) JLJ 20 ] wherein the Division Bench held that such a decree can be passed. It is submitted by the respondent that this appeal does not involve any substantial question of law and may be dismissed with costs. 4. It is submitted by the respondent that this appeal does not involve any substantial question of law and may be dismissed with costs. 4. To appreciate the rival contentions of the parties, factual position in the case may be stated: (a) Respondent filed a suit alleging that the suit house belongs to his ownership and situated in the township of Itarsi. The suit house was purchased by the plaintiff by a registered sale-deed dated 10.8.1994. Father of appellant No.2 and husband of appellant No. 1 late Nathuram Gupta entered into tenancy of the said house in February, 1998 at the rate of Rs. 250/- per month. Since then appellant were residing as tenant in the accommodation. Nathuram Gupta died before filing of the suit. (b) That the suit accommodation was required by the plaintiff for the residence of his family and for this purpose he was not having any other suitable accommodation of his own in the township of Itarsi. At the time of filing of the suit, plaintiff was residing alongwith his brothers in the ancestral house where he and his family was facing difficulty and for this purpose, the suit accommodation was required. The suit house was an old house and the plaintiff wanted to reconstruct after its demolition and for this purpose, he obtained permission from relevant departments and was having necessary fund for the construction. A notice was served on the appellants but the appellants denied title of the plaintiff-respondent. On these grounds, the suit was filed. (c) Appellants contested the suit by filing written statement alleging that in the first and third floors, sufficient accommodation was available and were lying vacant in which plaintiff and his family can reside. The suit accommodation was not required bonafide by the plaintiff and the entire purpose for vacation of the house was to let it out on a higher rent. The plaintiff was having three other accommodations which fact was concealed by the plaintiff. 5. The trial Court framed issues and after recording evidence held that the grounds under section 12 (1) (e) and (h) of the Act are proved and decreed the suit. Against the aforesaid judgment and decree, an appeal was preferred by the appellants but remained unsuccessful. The plaintiff was having three other accommodations which fact was concealed by the plaintiff. 5. The trial Court framed issues and after recording evidence held that the grounds under section 12 (1) (e) and (h) of the Act are proved and decreed the suit. Against the aforesaid judgment and decree, an appeal was preferred by the appellants but remained unsuccessful. At this stage, it will be pertinent to mention that the suit was also filed under section 12 (1) (c) of the Act but both the Courts below denied the aforesaid ground and decreed the suit only under section 12 (1) (e) and (h) of the Act. 6. It is submitted by the appellants that though there is a decree under section 12 (1) (e) and (h), but both cannot co-exist as under section 12 (1) (e), the suit accommodation was required for the residence of the family while under section 12 (1) (h) of the Act, the suit house was required for re-building and thereafter the appellants were entitled for re-entry under section 18 of the Act. But this controversy was considered by the Division Bench of this Court in T.R. Sah (supra) wherein the Division Bench considering the question held that when a suit is filed by a landlord under section 12 (1) (e) and (h) that he required the accommodation for his own use and also states that he wants to demolish and reconstruct the building. If he establishes case for eviction under section 12 (1 ) (e), then he will be entitled to an order under section 12 (1) (e) and averments relating to demolition and reconstruction will be construed as a part of the ground under section 12 (1) (e). In such-event, it will be immaterial whether he demolishes the building or not. When a Court grants an eviction under clause (e), it shall dispose of the claim under Clause (h) as having become infructuous or rendered redundant. When granting a decree under section 12 (1 ) (e), the question of applying section 12 (7) or section 18 does not arise. On the other hand, if the ground under section 12 (1) (e) is rejected, then the Court may consider the ground under section 12 (1) (h) independently subject to section 12 (7) and section 18 of the Act. 7. On the other hand, if the ground under section 12 (1) (e) is rejected, then the Court may consider the ground under section 12 (1) (h) independently subject to section 12 (7) and section 18 of the Act. 7. In view of settled position in T.R. Sah (supra), in the opinion of this Court, the question of law as framed in the case does not arise and the Court below have rightly decreed the suit of plaintiff-respondent under section 12 (1) (e) of the Act. So far as section 12 (1) (h) is concerned, in view of law laid down by the Division Bench, it has rendered redundant. 8. In the result, this appeal is found without merit and is accordingly dismissed. 9. At this stage, learned counsel for appellants submitted that the appellants are residing in the accommodation and looking to the rainy season, they may be allowed six month's time to vacate the accommodation, so that they may search out some accommodation of their shifting. Learned counsel for respondent has no objection if six month's time is allowed to the appellants in this regard but on terms. 10. In view of aforesaid, while dismissing this appeal, appellants are allowed time to vacate the accommodation and accordingly following directions are issued: (i) Appellants to furnish an undertaking before the trial Court within a period of 30 days from today that the appellants shall vacate the suit accommodation on or before 31.1.2009 peacefully without creating any hindrance or third party interest. (ii) Appellants to deposit all the arrears of rent and costs incurred in the Court below, if already not deposited, within a period of 30 days from today and thereafter continue to deposit rent month to month in advance till vacation of the accommodation. (iii) On compliance of the aforesaid conditions, the trial Court executing Court shall permit the appellants to occupy the accommodation till 31.1.2009, failing which the respondent will be entitled to execute the decree in accordance with law. Considering the facts of the case, there shall be no order as to costs.