Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 654 (MP)

Prakash v. Ajay Kumar Chhotwani through L. Rs.

2010-07-06

N.K.MODY

body2010
JUDGMENT N.K. Mody, J. 1. Being aggrieved by the judgment and decree dated 27-9-2006 passed by XIII ADJ, Indore in Civil Appeal No. 20-A/06 whereby the judgment and decree dated 23-2-2006 passed by XIV Civil Judge Class-I, Indore in Civil Suit No. 213-A/03 whereby the suit filed by the Respondent under Section 12(1)(f) of M.P. Accommodation Control Act was decreed, was maintained, the present appeal has been filed. 2. The appeal was admitted for final hearing on 15-5-2007 on the following substantial questions of law: (i) Whether the first Appellate Court was justified in confirming the judgment and decree passed by the trial Court, which had decreed the Plaintiff's suit filed under Section 12(1)(f) of the M.P. Accommodation Control Act and granted the decree for eviction in respect of the suit accommodation against the Defendant? (ii) Whether the finding recorded by the two Courts below about non availability of an alternative suitable non-residential accommodation in the city is factually and legally sustainable in the light of admission made by PW-1 Manoj in paras 28 and 32 coupled with the finding recorded by the first Appellate Court in para 21 of the impugned judgment wherein it was categorically held that six shops in House No. 10 situated in the city are available and no details were given as to whether these shops are in occupation of a tenant and if so why are they and, therefore, not available? (iii) Whether the finding recorded by the two Courts below that no alternative suitable non-residential accommodation is available to the Plaintiff in the city is de hors the evidence of the Plaintiff himself and does not amount to suppression of fact in the plaint because the evidence adduced by the Plaintiff, goes to show that non-residential accommodation is available in the city to the Plaintiff? 3. Short facts of the case are that Respondents filed a suit for eviction on 1-5-2002 alleging that Respondents are owner of part of property bearing house No. 482 situated at M.G. Road, Indore. It was alleged that a shop having width of 5ft. 4 inches in width and 37ft in length is in occupation of Appellants as tenants of which rent is being paid ' Rs. 300/- per month. It was alleged that Respondents purchased the suit property from the previous owner Santosh vide registered sale deed dated 8-1-2001 and 9-1-2001. It was alleged that a shop having width of 5ft. 4 inches in width and 37ft in length is in occupation of Appellants as tenants of which rent is being paid ' Rs. 300/- per month. It was alleged that Respondents purchased the suit property from the previous owner Santosh vide registered sale deed dated 8-1-2001 and 9-1-2001. It was alleged that Appellants have paid the rent to the Respondents up to 30-4-2002 and are in arrears of rent w.e.f. 1-5-2002. Further case of the Respondents was that Respondent. No. 1 is having friendly relations with the Appellants and Appellants assured that if the Respondent No. 1 purchase the property in which Appellants are also tenants, then Appellants shall vacate the suit accommodation and shall give possession to Respondent No. 1. It was alleged that upon their assurance, Respondent No. 1 purchased the property and after purchasing the property when the Respondent No. 1 requested the Appellants to vacate the suit accommodation, upon that Appellants assured that suit accommodation shall be vacated after 4-6 months. It was alleged that Respondents require the suit accommodation for carrying on the business of electronic items of their major sons. It was alleged that shop which is in occupation of Respondent No. 1 is smaller for carrying on their business. Further case of Respondents was that Respondent No. 1 is in occupation of a shop which is measuring 3x 16ft. It was alleged that except that, Respondents are having no alternative accommodation in their possession in H. No. 482 situated at M.G. Road which was purchased from the ex-landlord Santosh singh Patel. It was also alleged that Respondents are not having any convenient alternative accommodation in the city of Indore from where the requirement of Respondents can be fulfilled. It was alleged that suit shop is adjacent shop therefore the same is more convenient for carrying on the business. Further case of the Respondents was that shop which is in occupation of the Appellants is 5 ft 4 inches x 37 ft. in length while the shop which is in occupation of Respondent No. 1 is 8 ft x 13 ft. and 4 inches. It was alleged that after adjoining both the shops, the place will be more convenient for meeting out the bona fide requirement of his son. in length while the shop which is in occupation of Respondent No. 1 is 8 ft x 13 ft. and 4 inches. It was alleged that after adjoining both the shops, the place will be more convenient for meeting out the bona fide requirement of his son. The plaint filed by the Respondents was further amended on 12-12-2003 whereby it was alleged that Respondent No. 1 had died on 13-5-2002. It was alleged that after his death, his sons Manoj and Naveen are carrying on the business of electronic items from the place which was in occupation of Respondents. It was also alleged that shop which is in occupation of the Respondents is small and inconvenient, therefore the Respondents require the suit accommodation and need of the Respondents is bona fide. The suit was contested by the Appellants by filing the written statement wherein plaint allegations were denied. It was denied that Respondents require the suit accommodation bona fidely for expanding the business of their sons. It was also denied that Respondents are having no alternative accommodation. It was prayed that suit be dismissed. After framing of issues and recording of evidence, learned trial Court decreed the suit, against which appeal was filed which was dismissed, hence this appeal. 4. Learned Counsel for Appellants submits that impugned judgment passed by the learned Courts below are illegal and deserve to be set aside. Learned Counsel submits that in evidence it has come that Respondents are having one more house bearing Municipal House No. 10/1 at Jail Road, Indore learned Counsel submits that allegation in the plaint is that Respondents require the suit accommodation for construction of wall which is not a ground under Section 12(1)(f) of the Act. Learned Counsel submits that allegation in the plaint about the requirement is bald statement of Respondents but the same is also not proved by the surrounding circumstances. It is submitted that even if it is assumed for the sake of arguments that Respondents require the suit accommodation then too Respondents are not entitled for a decree of eviction because Respondents have deliberately not stated that Respondents have no alternative accommodation in the city of Indore. It is submitted that on the contrary from the statement of PW-1 Manoj, it is evident that Respondents are having H. No. 10/1 at Jail Road which is non-residential and the said house is having six shops. It is submitted that on the contrary from the statement of PW-1 Manoj, it is evident that Respondents are having H. No. 10/1 at Jail Road which is non-residential and the said house is having six shops. It is submitted that by concealing the alternative accommodation which was in possession of Respondent No. 1, Respondents are not entitled for a decree of eviction as the Respondents have not come to the Court with clean hands. It is submitted that Appeal be allowed and impugned judgment be set aside. 5. Learned Counsel for Respondents submits that Respondents have come with a case that Respondents are in occupation of shop situated at M.G. Road which is adjacent to the suit shop and smaller than the suit shop. It is submitted that right from beginning the case of the Respondents is that Respondents require the suit shop for expanding the business and also to introduce the sons of Respondents in the said business. It is submitted that it was also alleged by the Respondents that for extension, the Respondents are required to remove the wall which partitions the two shops which is in occupation of the Respondents and another suit shop. It is submitted that since Respondents have alleged in the plaint that Respondents are not having any suitable non-residential accommodation which is in occupation of the Respondent, therefore it cannot be said that Respondents have hidden important facts which ought to have been stated by the Respondents. Learned Counsel submits that in the statement of PW-1 Manoj it has also come that house situated at Jail Road is having a shop which is occupied by number of tenants. Since the adjacent shop is in occupation of Respondents and it is only the wall which has to be removed for expansion of business, therefore it cannot be said that property situated at Jail Road is suitable alternative accommodation and also Appellant is nobody to suggest the Respondents in that regard. It is submitted that appeal be dismissed. 6. From perusal of record it appears that both the Courts below after due appreciation of evidence have found that Respondents require the suit accommodation for expansion of business which is being carried by the Respondents in the accommodation which is adjacent to the suit accommodation and is smaller in size of the shop which is in occupation of the Appellants. From perusal of record it appears that both the Courts below after due appreciation of evidence have found that Respondents require the suit accommodation for expansion of business which is being carried by the Respondents in the accommodation which is adjacent to the suit accommodation and is smaller in size of the shop which is in occupation of the Appellants. The shop which is in occupation of Respondents is 128 sq. ft. approx while the suit shop is 200 sq. ft. Approximately. It is also evident from the record that Respondents have pleaded that Respondents are not having any suitable accommodation in the city of Indore. The accommodation which has been suggested by the Appellants is not the adjacent shop and also not in possession of Respondents. In view of this, this Court is of the view that no illegality has been committed by the learned Courts below in holding that Respondents require the suit accommodation bona fidely and Respondents are having no alternative accommodation to meet out their requirement. 7. In view of this, substantial questions of law framed by this Court are answered in negative. Appeal has no merits and is hereby dismissed. However, six months time is given to the Appellants to vacate the suit accommodation provided the Appellants submit an undertaking on affidavit within a period of 4 weeks from the date of receipt of certified copy of the judgment before learned Courts below to the effect that Appellants shall vacate the suit accommodation peacefully on or before 31-12-2010 and shall strictly comply with money part of the decree. In case of non-compliance on the part of Appellants within stipulated time, the Respondents shall be entitled to get the decree executed through process of law forthwith. 8. With the aforesaid observation, the appeal stands disposed of. No order as to costs.