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2010 DIGILAW 580 (MP)

HIRALAL v. MANGILAL

2010-05-19

PRAKASH SHRIVASTAVA

body2010
Judgment Prakash Shrivastava, J. ( 1. ) THIS second appeal under Section 100 of the Code of Civil Procedure has been filed against the judgment dated 12.09.2007 whereby the first appellate Court by dismissing the appeal has affirmed the judgment of the Trial Court. The Trial Court by the judgment dated 28.11.2006 had decreed the suit for eviction filed by the Respondent under Section 12 (1) (f) of the M. P. Accommodation Control Act, 1961 ["Act" hereafter]. ( 2. ) This Court by order dated 13.05.2008 had admitted the appeal on the following substantial question of law :- "Whether in absence of necessary pleadings, as envisaged under Section 12 (1) (f) of the M. P. Accommodation Control Act, the two Courts below erred in substantial error of law in decreeing the suit of the plaintiff ?" ( 3. ) Shri S.C.Bagadiya, learned Senior Advocate appearing for the appellant submitted that the Respondent had not pleaded and disclosed in the plaint that two other houses are available with the son of the Respondent for whose need the accommodation was sought, therefore, the Courts below have committed an error in decreeing the suit filed by the Respondent. He further submitted that the alternate accommodation in the form of two houses is available with the Respondent and that the burden to prove the non-availability of alternate accommodation was wrongly placed upon the present appellant. ( 4. ) Shri V.K.Jain, learned counsel appearing for the Respondent submitted that the suit shop is needed for starting the business of the Respondents son, therefore, it was not necessary to plead and disclose the two houses which are residential houses. Even otherwise by way of evidence it has been established that the two houses are not suitable for business, therefore, even if there is some lacuna in the pleading that will not be fatal. He further submitted that once the parties have led the evidence, the question of burden of proof looses its significance, ( 5. ) I have heard learned counsel for the parties and perused the record. ( 6. ) The suit premises is a shop and the suit for eviction was filed by the Respondent pleading that the suit shop was required by the Respondent for starting the business of his major son Mahesh Kumar. ) I have heard learned counsel for the parties and perused the record. ( 6. ) The suit premises is a shop and the suit for eviction was filed by the Respondent pleading that the suit shop was required by the Respondent for starting the business of his major son Mahesh Kumar. In the plaint he pleaded that "apart from the suit shop, no other accommodation in the ownership of the plaintiff is available in the Indore City". The Trial Court while decreeing the suit by the judgment dated 28.11.2006 found that the Respondent had proved the bona fide need for starting the business of his son and also that for the said need the Respondent does not have any other suitable alternate accommodation in the town concerned. The aforesaid finding of fact has been affirmed by the first appellate Court. ( 7. ) Before the Trial Court during the cross-examination, the plaintiffs witness PW-2 Mahesh had disclosed that he had a house in Scheme No.71 which was occupied by the tenant and another house in Gumasta Nagar which was under construction. ( 8. ) The two Courts below have examined the issue of availability of alternate accommodation in the light of the aforesaid two accommodations disclosed by PW-2 Mahesh for whose need the suit was filed. The aforesaid two accommodations have not been found to be business premises. When the specific query was put to DW-1 at the time of his cross-examination in respect of the nature of the aforesaid two accommodations, the counsel appearing for the appellant before the Trial Court had objected to the said question and prevented DW-1 from disclosing or admitting the nature of the two accommodation. The disclosure made by PW-2 shows that one of the accommodation is under construction and other is occupied by the tenant. Therefore, the two Courts below rightly found that no alternate accommodation is available with the Respondent which could satisfy the need for business. ( 9. ) To prove the suit for eviction under Section 12 (1) (f) of the Act, a landlord is required to establish that the landlord or such person for whose need the accommodation is required, has no other reasonably suitable non-residential accommodation of his own in his occupation in the town concerned. ( 9. ) To prove the suit for eviction under Section 12 (1) (f) of the Act, a landlord is required to establish that the landlord or such person for whose need the accommodation is required, has no other reasonably suitable non-residential accommodation of his own in his occupation in the town concerned. Section 12 (1) (e) of the Act relates to the ground of eviction for bona fide need of his residence and Section 12 (1) (f) of the Act relates to the ground of eviction for non-residential purposes. The Supreme Court in the matter of Prem Narayan Barchhiha v/s Hakimuddin Saifi, reported in 1992 (2) JLJ 260, has considered the scheme of Sections 12 (1) (e) and (f) of the Act and has held that the two clauses are distinct and independent grounds having different ingredients and are thus mutually exclusive. While considering the issue of pleading for the purposes of Section 12 (1) (f) of the Act, the Supreme Court has held that a landlord seeking eviction under Section 12 (1) (f) of the Act need not plead in the plaint that he is in occupation of residential accommodation which is not suitable for non-residential purposes. Such a pleading is held to be irrelevant pleading for the purpose of clause (f) in view of the plain language of section. The Supreme Court in the matter of Prem Narayan Barchhiha (Supra) held that :- "13. ...............It is no part of the obligation of the landlord seeking eviction of a tenant under Clauses (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 no suitable for non-residential purposes. These facts are not the requirement of clauses (f) and are irrelevant to make out a case under that clause. To read such a requirement in the said clause (f) would amount to doing violence to language of the clause nay rewriting the clause which is far beyond the principle of iron out the creases and is clearly impermissible. 14. These facts are not the requirement of clauses (f) and are irrelevant to make out a case under that clause. To read such a requirement in the said clause (f) would amount to doing violence to language of the clause nay rewriting the clause which is far beyond the principle of iron out the creases and is clearly impermissible. 14. It is futile to contend that accommodation is a neutral word taking in its fold both residential as well as non-residential purposes, the landlord ought to disclose the residential accommodation in his possession and show that it is not reasonably suitable for non-residential purposes when he is seeking eviction of the tenant from accommodation let for non-residential purposes. The Court cannot burden the landlord with additional conditions of disclosing particulars of residential accommodation in his possession and proving that it is not reasonably suitable for nonresidential purposes. Non-suiting him on such grounds will mean non-suiting him on extraneous grounds. It follows that the appellant has fulfilled the fourth requirement of clause (f) also." ( 10. ) In view of the aforesaid position of law, it was not necessary for the Respondent to plead and disclose in the plaint the details of the two houses at Scheme No.71 and at Gumasta Nagar, one of which was in occupation of a tenant and the other was under construction. These two premises have not been found to be commercial premises by the Courts below. Even if these two residential houses were available with the Respondent, they were not required to be pleaded in a suit for eviction for non-residential accommodation in view of the aforesaid judgment of the Supreme Court. ( 11. ) It is also worth noting that during the trial of the suit, PW-2 Mahesh during his cross-examination himself had disclosed that he had a house in Scheme No.71 which was occupied by the tenant and a house at Gumasta Nagar under construction. Even if the pleadings were deficient in this regard, the said deficiency is not fatal since the details of the two houses were disclosed by PW-2 in his oral evidence. The appellant had cross-examined PW-2 in this regard. The cross- examination of DW-1 was also done in respect of these houses, therefore, the parties had gone to trial with the aforesaid fact before them and no prejudice has been caused to any of the party. ( 12. The appellant had cross-examined PW-2 in this regard. The cross- examination of DW-1 was also done in respect of these houses, therefore, the parties had gone to trial with the aforesaid fact before them and no prejudice has been caused to any of the party. ( 12. ) It is the settled position in law that non-disclosure of landlord about his having alternate accommodation is not fatal to the eviction proceedings if both the parties understood the case and placed material before the Court and the case of neither party was prejudiced. If the material relating to the alternate accommodation has come on record and has been adequately dealt with by the Court, then no prejudice is caused. The said view is supported by the judgment of the Supreme Court in the matter of Ram Narain Arora v/s Asha Rani and others, reported in (1999) 1 SCC 141 ; and in the matter of M. L. Prabhakar v/s Rahiv Singal, reported in (2001) 2 SCC 355 . ( 13. ) In the matter of Ram Narain Arora (Supra), the Supreme Court held that :- "(11) There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the court to decide the matter. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the court neither party is prejudiced. If we analyse from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller." ( 14. ) The judgment of the Supreme Court in the matter of Ram Narain Arora (Supra) has been followed in the matter of M. L. Prabhakar (Supra). ( 15. If we analyse from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller." ( 14. ) The judgment of the Supreme Court in the matter of Ram Narain Arora (Supra) has been followed in the matter of M. L. Prabhakar (Supra). ( 15. ) It is also worth noting that in the case of bona fide requirement of landlord, the availability of the alternate accommodation needs consideration keeping in view the landlords subjective choice, from among the more than one accommodation available to him and such a choice needs to be respected by the Court, if once the Court is satisfied after applying objective standards regarding the bona fide of the landlord for the premises or additional premises. Such a view is supported by the judgment of the Supreme Court in Shiv Sarup Gupta v/s Dr. Mahesh Chand Gupta, reported in (1999) 6 SCC 222 . ( 16. ) So far as the issue of burden of proof is concerned, the initial burden of proof to establish non-availability of alternate accommodation was on the Respondent - landlord. The Respondent had pleaded that no alternate accommodation was available with him to satisfy the need in town concerned, and had adduced the evidence in this regard. PW-2 had also disclosed that two other accommodations out of which one was occupied by the tenant and other was under construction. The appellant failed to produce any evidence to show that PW-2 was making a wrong statement or these two accommodation or any one of them was available with the Respondent to satisfy the need of his business. The finding of fact has rightly been recorded by the two Courts below that the suit accommodation do not satisfy the need of business. ( 17. ) The Supreme Court in the matter of Raghunathi and another v/s Raju Ramappa Shetty, reported in AIR 1991 SC 1040 , has held that once the parties have permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic. ( 18. ( 18. ) The aforesaid view is reiterated by the Supreme Court in the matter of Standard Chartered Bank v/s Andhra Bank Fionancial Services Ltd. and others, reported in (2006) 6 SCC 94 , by holding that any rule of burden of proof is irrelevant when the parties have led evidence and that evidence has been considered. ( 19. ) While dealing with the similar issue, the Supreme Court in the matter of Standard Chartered Bank (Supra) has held that if parties know that a plea was involved in trial and if such a plea is covered by issue by implication then in such a case mere fact that the plea was not expressly taken in pleading would not necessary disentitle a party from relying upon it if it is satisfactorily proved by evidence. ( 20. ) This Court also in the matter of Omprakash s/o Satyanarayan and others v/s Anand Kumar s/o Hukumchand Patni and others, decided on 19.02.2008 - Second Appeal No.807 of 2007, in the similar circumstances has taken the view that want of pleading and coming up of the material relating to the matter not placed before on record through pleading is immaterial as the parties right from the beginning had the relevant material on record and the two Courts below adequately dealt with that, therefore, no prejudice was caused to the tenant side. ( 21. ) Learned counsel appearing for the appellant has relied upon the judgment of the Supreme Court in the matter of Hasmat Rai and another v/s Raghunath Prasad, reported in AIR 1981 SC 1711 . The learned counsel for the Respondent has not disputed the ratio of the said judgment but the said judgment has no application in the facts of the present case since it is not a case of no pleading in respect of non-availability of alternate accommodation but present is a case where the Respondent had sought eviction on the ground of bona fide need for business and had not pleaded the two residential accommodations belonging to him. ( 22. ( 22. ) Learned counsel appearing for the appellant has also placed reliance upon the judgment of Single Bench of this Court in the matter of Krishnakumar Bahal v/s Shankarlal Agrawal, reported in 1989 MPRCJ NOC 30; Satyanarayan Solanki v/s Murai Samaj Dharmashala Nyas, reported in 2005 (II) MPACJ 207; the judgment dated 12.04.2007 in the matter of Jainuddin v/s Ajitsingh in Civil Revision No.201 of 2006; but these judgments do not help the appellant since they relate to the complete absence of pleading in the plaint about non-availability of alternate accommodation. In the present case the Respondent had pleaded that no suitable alternate accommodation for the business in the town concerned is available with the Respondent. ( 23. ) Learned counsel appearing for the appellant has also placed reliance upon the judgment of the Supreme Court in the matter of Messrs Trojan and Co. v/s RM. N. N. Nagappa Chettiar, reported in AIR 1953 SC 235 ; and the judgment of this Court in the matter of Mulam Chand Chhoteylal Modi v/s Kanchhedilal Bhaiyalal and others, reported in AIR 1958 MP 304 , wherein it has been held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. In the present case also the Courts below have not travelled beyond the pleadings of the parties. On the contrary in view of the judgment of the Supreme Court in the matter of Prem Naryan Barchhiha (Supra) it was not necessary for the Respondent to plead the residential accommodation in his ownership when the need was for commercial premises. ( 24. ) The counsel for the appellant has also relied upon the judgment of the Supreme Court in the matter of Kishan Chand v/s Jagdish Pershad and others, reported in (2003) 9 SCC 151 , which relates to the concealment of an alternate residential Flat while seeking eviction for bona fide need for residence. But in the present case there is no concealment of any non-residential premises by the Respondent when he is seeking eviction from the suit premises which is a non-residential premises on the ground of non-residential need. ( 25. But in the present case there is no concealment of any non-residential premises by the Respondent when he is seeking eviction from the suit premises which is a non-residential premises on the ground of non-residential need. ( 25. ) The judgment of this Court in the matter of Ashok Kumar v/s Kishan Singh, reported in 2001 (3) MPHT 371 , also does not help the appellant since in the present case presumption of availability of alternate business premises cannot be drawn since the details of two other premises owned by the Respondents son have come on record and they have not been found to be business premises nor they are available for occupation of the Respondent. ( 26. ) The counsel for the appellant has relied upon the judgment of this Court in the matter of Mahesh Chandra v/s Bhagwati Prasad, reported in 2003 (II) MPACJ 142, but that is also a case of total absence of mandatory statutory pleading but that is not the present case. ( 27. ) It is also worth noting that in the present case the two Courts below have concurrently found that the Respondent has been successfully able to prove the bona fide need for starting the business of his son and non-availability of the suitable alternate business accommodation for that purpose. The finding in respect of the bona fide need and availability of alternate accommodation are pure finding of fact and they have not shown to be perverse in any matter. ( 28. ) In view of the aforesaid analysis, the question of law is answered in favour of the Respondent by holding that the two Courts below have not committed any substantial error of law in decreeing the suit filed by the Respondent seeking eviction under Section 12 (1) (f) of the Act. ( 29. ( 28. ) In view of the aforesaid analysis, the question of law is answered in favour of the Respondent by holding that the two Courts below have not committed any substantial error of law in decreeing the suit filed by the Respondent seeking eviction under Section 12 (1) (f) of the Act. ( 29. ) The appellant has also filed applications, I.A. No. 10780/2009 and I.A.No. 10781/2009 under Order VI Rule 17 of the CPC for amending the written - statement and under Order XLI Rule 27 of the CPC for filing additional documents respectively stating that during pendency of the appeal, the Respondent had entered into an agreement to sell the suit premises in favour of Shrichand Chandwani and a notice relating to sell of suit premises was publised by Shri Sudarshan Joshi, Advocate which shows that the need projected by the Respondent for the suit premises is not bona fide. ( 30. ) On perusal of the reply to these applications filed by the Respondent, it is noticed that the Respondent is aged about 72 years and is suffering from heart ailment and other diseases and the alleged agreement was got executed by Shrichand Chandwani, who is brother-in-law of the appellant, fraudulently from the Respondent colluding with the appellant and taking advantage of his close relations with the Respondent. The said agreement was fraudulently obtained to frustrate the present eviction proceedings. Alleged notice in news paper was published by Shri Sudarshan Joshi, Advocate who is the Advocate of the appellant. The Respondent has placed on record the documents in support of the aforesaid facts. He has also filed copy of the public notice published by the Respondent in the news paper in response to the notice published by the appellant, denying any such agreement of sale and informing the general public that such an agreement to sell was fabricated and false. It appears that the appellant has filed the present applications only with a view to frustrate the eviction decree which has been concurrently passed by the two Courts below against him. Thus, the applications, I.A.No.10780/2009 and I.A.No.10782/2009 are rejected. The appeal is accordingly dismissed. No order as to costs.