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2009 DIGILAW 745 (MP)

Kiran Agrawal v. Heera Bai

2009-06-29

N.K.AGARWAL

body2009
JUDGMENT N.K. Agarwal, J. 1. Heard on admission. 2. The instant appeal is directed against the judgment and decree dated 5-4-2008 passed in Civil Appeal No. 29-A/1998 by 3rd Additional District Judge (FTC), Raigarh arising out of the judgment and decree dated 29-7-2005 passed in Civil Suit No. 12-A/1997 by Civil Judge Class I, Raigarh, whereby learned 1st Appellate Court affirmed the eviction decree passed against the appellants. 3. The appellants are legal representatives of original defendant Kishan Agrawal and the respondents are legal representatives of original defendant Chintamani Sharaf. Both have died during pendency of first appeal and substituted in place of original plaintiff and defendant. 4. Brief facts of the case are that a suit for eviction and arrears of rent was filed by the plaintiff against the defendant on the ground of Section 12(1)(f) of C.G. Accommodation Control Act (briefly 'the Act'). As per the plaint averment, the plaintiff let out the suit house to the defendant vide agreement dated 8-2-1996 for 11 months on a monthly rent of Rs. 800/- and the plaintiff bonafidely needs the same for his business and for that, the plaintiff did not have any alternative suitable accommodation in Raigarh City. By sending a notice dated 6-12-96, the plaintiff requested the defendant to vacate the suit house and to give its vacant possession to the plaintiff by 8-1-97 but by sending its reply, the defendant refused to vacate the suit house, therefore, the instant suit was filed by the plaintiff. 5. The defendant filed his written statement in the case and pleaded that his other brother Billu Mangal is also owner of the suit house. Execution of/agreement dated 8-2-96 was not denied by him. He further pleaded that the suit house is not bonafidely required for the purpose of plaintiff's business but the suit has been filed with oblique motive to enhance rent and, therefore, the suit is liable to be dismissed. He also pleaded that a front room of the house of the plaintiff is suitable for the alleged business of the plaintiff and therefore, a suitable alternative accommodation being available to the plaintiff, the plaintiff is not entitled to get any decree under Section 12(1)(f) of the Act and the suit is liable to be dismissed. 6. He also pleaded that a front room of the house of the plaintiff is suitable for the alleged business of the plaintiff and therefore, a suitable alternative accommodation being available to the plaintiff, the plaintiff is not entitled to get any decree under Section 12(1)(f) of the Act and the suit is liable to be dismissed. 6. The Trial Court after appreciating the pleadings of the parties, evidence led oral as well as documentary held that the plaintiffs need regarding the suit house is genuine and decreed the suit in favour of the plaintiff. The judgment and decree of the Trial Court was assailed before the First Appellate Court mainly on the following grounds: (i) The Trial Court erred in holding that the suit house is genuinely required by the plaintiff for his business; (ii) The Trial Court erred in not holding that the plaintiff is having suitable alternative accommodation in Raigarh city and, therefore, the decree under Section 12(1)(f) of the Act cannot be passed in favour of the plaintiff; (iii) The plaintiff being not the sole owner of the suit property, the suit ought to have been dismissed by the Trial Court; (iv) The plaintiffs brother Billu Mangal is a necessary party of the suit and, therefore, the suit is bad for non-joinder of the necessary party. (v) The requirement or need of the plaintiff/landlord has come to an end on his death during pendency of appeal and, therefore, the civil suit filed by him ought to have been dismissed as his legal heirs/appellants could not have continued the suit which was based on personal bonafide need of the deceased plaintiff/landlord. 7. The First Appellate Court after appreciating the arguments putforth by the appellants dismissed the first appeal. Hence this appeal. 8. Now the main contentions raised by Sushri Sharmila Singhai, learned Counsel for the appellants are that: (i) Brother Billu Mangal being co-owner was necessary party of the suit, and therefore, the suit suffered from non-joinder of necessary party; (ii) The finding regarding availability of alternative accommodation is perverse as admittedly, a front portion of residential house of the plaintiff is suitable for running business; and (iii) Finding regarding genuine need is perverse. 9. 9. Having heard the contentions raised by learned Counsel for the appellants and having perused the record with utmost circumspection, in my considered opinion, the instant appeal has no merit on the following grounds: 10. The finding of both the Courts below regarding genuine need of the plaintiff is based on appreciation of pleadings of the parties, evidence oral as well as documentary led by the parties. I have carefully read the evidence led by the parties in this regard and I do not find any illegality which leads to perversity calling interference at the stage of second appeal. 11. As far as the question of alternative accommodation, is concerned, in the evidence led by the deceased defendant himself in the form of affidavit under Order XVIII Rule 4 of CPC, it was stated in Paras 10 and 11 that the alternative accommodation available to the plaintiff is a front room of 10' x 10' size of plaintiff's house, which is in front of the main road and was also earlier used as goldsmith shop by the ancestors of the plaintiff, it was admitted in Para 28 of the statement during cross-examination that the plaintiff never did the work of goldsmith. He also admitted that the said room is the only way to enter in the house and, therefore, it cannot be said that the room which is a part of residential house is a suitable alternative accommodation for running plaintiffs business. Moreover, the law is well settled in this regard that accommodation in possession of the landlord used for residential purpose cannot be treated as non-residential and, therefore, cannot be termed as suitable alternative accommodation for the purpose of non-residential need. 12. The second point raised by the learned Counsel for the petitioner is also of no substance inasmuch as law is well settled in this regard that a co-owner is as much an owner of the entire property as any sole owner of the property is. The Supreme Court in Sri Ram Pasricha v. Jagannath and Ors. 12. The second point raised by the learned Counsel for the petitioner is also of no substance inasmuch as law is well settled in this regard that a co-owner is as much an owner of the entire property as any sole owner of the property is. The Supreme Court in Sri Ram Pasricha v. Jagannath and Ors. reported in (1976) 4 SCC 184 , while dealing with the word "owner" under Section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956, which is in pari materia of provisions contained in Section 12(1)(f) of the C.G. Accommodation Control Act, held in Para 28 that a co-owner is as much an owner of the entire property as any sole owner of a property is. 13. The question regarding the effect of death of original landlord/plaintiff after passing judgment and decree by the Trial Court on the ground of-his personal requirement has already been settled by the judgment of Supreme Court Shakuntala Bai and Ors. v. Narayan Das and Ors. reported in (2004) 5 SCC 772 , a case which arose out of the provisions of M.P. Accommodation Control Act and the Supreme Court in Para 14 held thus: 14. Sub-section (1) of Section 12 of the Act says "no suit shall be filed in any Civil Court against a tenant for his eviction...."The language employed does not say "no decree shall be passed...." So the bar created is against filing of the suit except on one of the grounds enumerated in Clauses (a) to (p) of the sub-section. Therefore, what is to be seen is whether the suit was validly filed, i.e., whether on the date of filing of the suit one of the grounds was made out. A suit validly filed cannot be scuttle or held no longer maintainable in absence of any specific provision to that effect. Therefore, the principle that "the need of the landlord must exist till the decree for eviction is passed by the last Court and attains finality" can even otherwise have no application here in view of the express language used in the section. 14. While dealing with the scope of Section 100 of CPC, the Supreme Court in case of Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179 : 2001 (3) M.P.H.T. 71 (SC), in Para 12 held thus: 12. 14. While dealing with the scope of Section 100 of CPC, the Supreme Court in case of Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179 : 2001 (3) M.P.H.T. 71 (SC), in Para 12 held thus: 12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law" means--of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard, need not necessarily be a substantial question of law of general importance. In Guran Dim v. T. Ram Ditto AIR 1928 PC 172, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973), came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties.... 15. Therefore, the concurrent finding recorded by both the Court below regarding bonafide need of the plaintiff was essentially a finding of fact, was rightly recorded based on appreciation of oral as well as documentary evidence led by the parties and on settled principles of law. Therefore, I am of the considered opinion that no substantial question of law arises for determination in this appeal. 16. The appeal is therefore, liable to be and is accordingly dismissed at admission stage.