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2010 DIGILAW 941 (MP)

Lakhanlal Gupta v. Nemchand Jain

2010-09-15

U.C.MAHESHWARI

body2010
JUDGMENT : This appeal is directed by the appellant/defendant under section 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 5-3-2010 passed by IInd Additional District Judge Satna in Civil Appeal No. 15-A/09 upholding the judgment and decree dated 31-3-2009 passed by IInd Civil Judge Class-I Satna in Civil Original Suit No. 118-A/03, decreeing the suit of the respondent for eviction against him with respect of the disputed shop on the ground of bona fide genuine requirement enumerated under section 12(1)(f) of the M. P. Accommodation Control Act, 1961 (in short 'the Act'). 2. The facts giving rise to this appeal in short are that the respondent herein filed the abovementioned suit against the appellant contending that the appellant being his monthly tenant @ Rs. 1200/- per month is in occupation of the disputed shop situated in his house bearing No. 40 Chowk Bazar, Satna for non-residential purpose. The appellant being defaulter in payment of the rent and did not pay the same since July, 2002 and the possession of the disputed premises was parted by him to his brother Uttam Chand and thereby, caused substantial injury to the right of the respondent in such property and he was also in need of the disputed shop opening the Beauty Parlor for himself and also for her wife and unmarried daughter for which, he did not have any other alternative vacant accommodation of his/their own in the township of Satna on which, initially by giving the notice dated 9-6-2002 Ex.P/2 the demand of outstanding rent was made. Subsequently, again a fresh notice dated 14-9-2002 Ex.P/6 is also given to the respondent making the demand of arrears of rent and thereby the tenancy of the appellant was also terminated. Despite service of such notice, neither the out standing sum of rent was paid nor the accommodation was vacated by the appellant on which the impugned suit for eviction was filed on the grounds available under sections 12(1)(a), 12(1)(b) and 12(1)(f) of the Act. 3. In the written statement of the respondent by admitting the alleged tenancy of the premises, the grounds of eviction as stated in the plaint are denied. In addition it is stated that the appellant could not be treated to be defaulter in payment of the rent as the same was paid in accordance with the contract and prescribed procedure of law. In addition it is stated that the appellant could not be treated to be defaulter in payment of the rent as the same was paid in accordance with the contract and prescribed procedure of law. As per further averments, the respondents being in service of some Department is residing at Jabalpur and the alleged house in which the shop is situated was constructed by him only for the purpose of rental income. Initially, he was inducted as tenant in the premises at the rate of Rs. 1,000/- per month and simultaneously contrary to law Rs. 1,20,000/- was taken by the respondent as premium (Pagadi). After five years from the first date of his induction in the premises the existing rent was enhanced by 20% and subsequently after five years again 20% rent was enhanced. In such premises, the appellant is paying the rent of such shop @ Rs. 1,400/- per month to the respondent. Accordingly he has not committed any default in payment of the rent. The family settlement filed on behalf of the respondent being unregistered is not admissible under the law. In addition, it is also stated that the alleged daughter of the respondent is prosecuting her studies at Jabalpur and she is not qualified to open or to run the Beauty Parlor. Besides this, the respondent being member of the Jain community, it would not be deemed that his daughter will remain ever with the respondent in his family and run the business stated in the plaint. In future on any occasion, her marriage could be solemnized and in such premises, the alleged need of the respondent for opening the Beauty Parlor for such daughter, could not be termed to be bona fide or genuine. It is further stated that in the township of Satna there is no tradition to open the Beauty Parlor on the ground floor. Normally, such profession is carried out on the first floor or second floor of the house where the woman customers may go without any hesitation or discomfort. It is also stated that the appellant is having the alternate vacant shop in the same house adjoining to the disputed shop where by opening the Beauty Parlor, the alleged need of the respondent could be satisfied. It is also stated that the appellant is having the alternate vacant shop in the same house adjoining to the disputed shop where by opening the Beauty Parlor, the alleged need of the respondent could be satisfied. Besides these, the respondent is also having some open area towards western side of the disputed shop where after constructing the new shop, the respondent may conveniently start his alleged business. It is also stated that the alleged need of the daughter for Computer business and the Beauty Parlor are neither bona fide nor genuine. So far the ground of sub-tenancy is concerned, it is stated that in the disputed shop, his family is doing the business, therefore, if such business is carried out by the brother of the appellant then, the same could not be termed to be a ground of sub­tenancy with these pleadings, the prayer for dismissal of the suit is made. 4. In view of the pleadings of the parties, after framing the issues and recording their evidence, on appreciation of the same, the ground of arrears of rent and the sub-tenancy were not found to be proved by the trial Court while, holding the alleged need of the respondent for opening the business of his daughter of Beauty Parlor to be bona fide and genuine the suit was decreed on the ground enumerated under section 12(1)(f) of the Act. On challenging such decree by the appellant before the subordinate Appellate Court, on re-appreciation of the evidence by affirming such decree of the trial Court, the same was dismissed on which, the appellant has come forward to this Court with this appeal. 5. Shri R. P. Agrawal, learned Senior Advocate assisted by Shri Abhijeet Dave, after taking me through pleadings of the parties, evidence available on the record and the exhibited documents said that the impugned decree on the ground of bona fide genuine requirement for non-residential purpose under section 12(1)(f) of the Act has been passed contrary to the evidence available on record. In continuation, he said that in the available circumstances, the alleged need of the accommodation to the respondent could not be termed to be bona fide or genuine. In continuation, he said that in the available circumstances, the alleged need of the accommodation to the respondent could not be termed to be bona fide or genuine. By referring the notice of the respondent dated 9-6-2002 Ex.P/2, he said that in such notice the requirement of such nature of the business for which the shop was required, is not mentioned even the requirement of the accommodation for his daughter and wife to open the Beauty Parlor was also not stated. In subsequent notice Ex.P/6, the requirement of her daughter is mentioned while the requirement of his wife was not mentioned and thereafter, contrary to the averments of such notice, the suit was filed on the ground of bona fide genuine requirement of daughter and wife on the grounds under section 12(1)(a), 12(1)(b) and 12(1)(f) of the Act. Such conduct of the respondent was not taken into consideration with proper approach by both the Courts below while passing the decree of eviction against him. In continuation, he said that although the respondent has tried to prove the family partition between the respondent and his brother, but such document being unregistered, is not admissible for any purpose and in this regard by referring the para 12 of the deposition of respondent Nemchand (PW-1) he said that undisputedly some alternative vacant accommodation is available with the respondent and on taking into consideration the same the alleged need could not be held to be bona fide or genuine. In continuation, he said that contrary to settled proposition by taking into consideration the family arrangement Ex.P.14, of the respondent it was held by the Courts below that the respondent did not possess any alternate vacant accommodation of his own for the alleged business. In support of this contention by referring section 2(15) of the Stamp Act, he placed his reliance on a decided case of this Court in the matter of Rao Mahendrasingh and others vs. Sub Registrar, Indore and others, reported in AIR 1983 MP 144 . He further argued that the respondent has failed to prove that his daughter is having the requisites qualification to open the Beauty Parlor. The diploma Ex.P.1 placed on the record could not be termed to be a proved document, as the same was not proved by calling the person concerned who signed the same. He further argued that the respondent has failed to prove that his daughter is having the requisites qualification to open the Beauty Parlor. The diploma Ex.P.1 placed on the record could not be termed to be a proved document, as the same was not proved by calling the person concerned who signed the same. But, contrary to all such the decree of eviction has been passed by the Courts below and prayed to admit this appeal on the proposed substantial question of law mentioned in para 7 of the appeal memo. 6. In the alternative, it was argued by the counsel that in case, it is found that this appeal is not involving any substantial question of law as per section 100 of the Civil Procedure Code then, in such circumstances taking into consideration the long possession of the appellant's, he be extended a period of one year subject to imposition of the terms under the discretion of the Court of vacating the premises. 7. On the other hand, Shri P. S. Das learned counsel for the respondent at this stage has given his consent saying that in case, this appeal is not admitted by framing any substantial question of law and in such circumstance the Court deems fit to extend the time for vacating the alleged shop on some conditions then, he did not have any objection in extending the period to the appellants as prayed on his behalf. 8. Having heard, keeping in view the arguments advanced by the appellant's counsel, I have carefully gone through the record of the Courts below and also perused the impugned judgments. 9. After going through the evidence available on the record, I have found that the findings of the Courts below in the impugned judgments are in consonance with such evidence. The arguments advanced by the counsel saying that the respondent has failed to prove the sufficient qualification of his daughter to start the business of Beauty Parlor and computer is concerned. I am not apprised with any legal position by the Senior counsel that to open the Beauty Parlor under the law some qualification or experience is required. In lack of any such legal position and in view of settled proposition in order to open the new business the landlord like the respondent is not bound to prove the experience of such business or qualification to start the same. In lack of any such legal position and in view of settled proposition in order to open the new business the landlord like the respondent is not bound to prove the experience of such business or qualification to start the same. It is trite law that even in the absence of any experience the landlord and his family members covered under section 12(1)(f) of the Act, are entitled to get the decree on the ground of bona fide genuine requirement for opening new business. Such question was answered long before by this Court in the matter of Smt. Ratanmal Devi vs. Kalpnath, reported in 1983 MPRCJ (Note) 84, in which it was held as under: "It could not be disputed that if the plaintiff wanted to start a business, the law does not require that he must prove that he has experience of that business, as it is clear that it is not provided that a person is not expected to start a business which he has not done earlier. It is apparent that the appellant could not acquire that experience of running the business before she could get the accommodation for starting the business and, therefore, an inference drawn from this fact that the requirement is not genuine, is not correct, as it is not relevant for coming to the conclusion about genuine requirement." So the arguments of the appellant's counsel in this regard has neither appealed me nor the same is giving rise to any substantial question of law. 10. The arguments advanced by the appellant's counsel on the ground of availability of alternate vacant accommodation with the respondent of his own is concerned, as per settled legal proposition the family settlement of the joint Hindu family which has taken place before 20 years from the execution of the settlement deed Ex.P/14 could not be challenged on behalf of the appellant either under the garb of section 2(15) of the Stamp Act or on the basis of principle laid down by the Orissa High Court in the case of Rao Mahendra Singh and others "supra". Besides this, such settlement was found to be proved by both the Courts below on appreciation of the evidence and in such premises, such Courts concurrently held that the respondent is not having any other alternate suitable vacant accommodation of his own in his possession for the alleged need. Besides this, such settlement was found to be proved by both the Courts below on appreciation of the evidence and in such premises, such Courts concurrently held that the respondent is not having any other alternate suitable vacant accommodation of his own in his possession for the alleged need. The brother of respondent namely; Hemchand PW-2 on recording his deposition categorically supported their family settlement thus the finding regarding non­ availability of alternate accommodation with the respondent is not giving rise to any substantial question of law. 11. Although, the depositions of PW-1 Namichand was referred by the appellant's counsel, but re-appreciation of such evidence could not be carried out as the same is not permissible at this stage and specially when the findings of the Courts below on the ground of bona fide genuine requirement is in consonance with such evidence. 12. The arguments of the appellant's counsel that initially on giving the quit notice, some other averments were stated in them and the suit was filed on different facts, therefore, in view of such conduct of the respondent, he did not deserve to get decree of eviction is concerned, it is suffice to say that in the matter of bona fide genuine requirement of the accommodation the landlord is always at liberty to project his need according to his manner and the available circumstances. As per legal position, the prior notice of the alleged necessity of the accommodation is not requirement of law, therefore, mere on account of some inconsistencies between the notice and the pleadings of the plaint, the alleged need of respondent could not be discarded. 13. In view of the aforesaid discussions, the concurrent findings of the Courts below on the ground of bona fide genuine requirements based on appreciation of evidence being finding of fact are not giving rise to any substantial question of law at this stage. Apart from above, the concurrent findings of the Courts below on the ground of bona fide genuine requirement in view of law laid down by the Apex Court in the matter of Dr. Ranbir Singh vs. Asharfi Lal, reported in (1995) Volume 6 SCC page 580 being finding of fact could not be interfered under section 100 of the Civil Procedure Code, at this stage. Ranbir Singh vs. Asharfi Lal, reported in (1995) Volume 6 SCC page 580 being finding of fact could not be interfered under section 100 of the Civil Procedure Code, at this stage. "13.................The trial Court and the first Appellate Court on a close analysis of the evidence also recorded a definite finding that the plaintiffs requirement of the suit premises was genuine and bona fide but the High Court set aside the same on reasonable grounds ." "14. Sub-section (1) of section 100 of the Code of Civil Procedure contemplates that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of section 100 further provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. But it may be pointed out that the High Court formulated no such question of law on basis of which it proposed to interfere with the findings of facts. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based upon an appreciation of the relevant evidence. There is a plethora of case-law in support of this view. To quote a few, references may be made to the decision in V. Ramachandra Ayyar vs. Ramalingam Chettar wherein this Court took the view that even if the appreciation of evidence made by the lower Appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure and the High Court cannot interfere with the conclusions of fact recorded by the lower Appellate Court. This view has been reiterated by this Court in Bhagwan Dass vs. Jiley Kaur. This being the position, the High Court was not justified in reappreciating the evidence and substituting its own conclusions for the well-reasoned findings recorded by the Courts of fact." 14. On arising the occasion such principle was also followed by this Court in the matter of Machala Bai vs. Nanak Ram, reported in 2006(11) MPLJ page 484. 15. This being the position, the High Court was not justified in reappreciating the evidence and substituting its own conclusions for the well-reasoned findings recorded by the Courts of fact." 14. On arising the occasion such principle was also followed by this Court in the matter of Machala Bai vs. Nanak Ram, reported in 2006(11) MPLJ page 484. 15. Apart the above, in any case the concurrent findings of the Courts below based on appreciation of evidence being findings of fact howsoever the same are erroneous in view of law laid down by the Apex Court in the matter of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others, reported in AIR 1999 SC page 2213 could not be interfered under section 100 of the Civil Procedure Code. 16. In view of the aforesaid, I have not found any circumstance or substance in this appeal giving rise to any substantial question of law requiring any consideration at this stage under section 100 of the Civil Procedure Code. Resultantly, the appeal being devoid of any such question deserves to be and is hereby dismissed at the stage of motion hearing. 17. However, considering the circumstances that the appellant is in possession of the disputed shop as tenant since long and it would not be possible for him to vacate the same immediately, therefore, taking into consideration the consent of the respondent counsel as stated above, I deem fit to extend him some period to vacate the disputed premises on certain conditions. 18. Hence, it is directed that on payment of regular monthly mesne profit @ the monthly rent within 15 days, from the end of every Georgian calendar month and on furnishing the appropriate surety to the satisfaction of the trial Court within 30 days from today with an undertaking that the appellant shall hand over the vacant possession of the disputed premises peacefully to the respondent on or before 31-8-2011, the time upto 31-8-2011 is extended to the appellant for vacating the disputed premises, failing in compliance of any of the aforesaid condition, the respondent shall be at liberty to execute the decree forthwith with all aspects. There shall be no order as to the costs. 19. Appeal is dismissed with aforesaid observations and directions. Appeal dismissed.