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Madhya Pradesh High Court · body

2011 DIGILAW 113 (MP)

Ram Verma v. Mukesh Kumar Pandey

2011-01-27

ALOK ARADHE

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JUDGMENT Alok Aradhe, J. 1. This appeal has been preferred by tenant who has suffered the decree of eviction under Section 12(1)(a) and 12(1)(e) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act'). This Court while admitting the appeal on 24-7-2008 had formulated the following substantial question of law: Whether the Plaintiff was entitled for a decree of eviction in absence of pleadings that the landlord was not having any other alternative suitable accommodation in the township of Jabalpur? 2. Facts giving rise to filing of the appeal are that admittedly the Appellant is a tenant in respect of the suit accommodation. The Defendant was in arrears of rent for the months of November-December, 2004 as well as January, 2005 and March, 2005. Despite notice of demand being served the Defendant did not tender the arrears of rent. The Plaintiff bona fide needed the suit accommodation for the purpose of residence of himself as well as family members as the present accommodation in his occupation is not suitable as the Plaintiff is unable to climb the stairs and has been advised by the doctor not to climb stairs. Accordingly, decree under Section 12(1)(a) and (e) was sought. The Defendant filed the written statement in which inter alia, it was pleaded that the Plaintiff is not the sole owner of the suit accommodation and he has brother and two sisters. It was also denied that the Defendant is in arrears of rent. It was further denied that the Plaintiff needs the accommodation bona fide as he is unable to climb the stares. 3. The trial Court on the basis of the pleadings of the parties, framed issues Nos. 2 and 3, namely, with regard to bona fide need and availability of alternative accommodation. The trial Court on meticulous appreciation of the evidence on record found that the Plaintiff needs the suit accommodation bona fide and for that purpose he has no alternative suitable accommodation in the city. The trial Court also found that the Defendant is in arrears of rent. Accordingly decree under Section 12(1)(a) and Section 12(1)(e) was granted. In appeal, the Lower Appellate Court vide judgment and decree dated 31-3-2008 has affirmed the decree passed by the trial Court. 4. The trial Court also found that the Defendant is in arrears of rent. Accordingly decree under Section 12(1)(a) and Section 12(1)(e) was granted. In appeal, the Lower Appellate Court vide judgment and decree dated 31-3-2008 has affirmed the decree passed by the trial Court. 4. Learned Counsel for the Appellant submitted that in order to seek a decree under Section 12(1)(e) of the Act the Plaintiff is required to plead and prove that he bona fide needs the suit accommodation and that he has no alternative accommodation in the city. However, in the plaint, the Plaintiff has failed to plead that he has no alternative accommodation in his possession. The burden to prove that the Plaintiff has no alternative accommodation was on the Plaintiff which he failed to discharge. It was also submitted that the medical certificate produced by the Plaintiff in support of his permanent disablement was not proved. It was further submitted that the Courts below have committed an error of law in decreeing the suit under Section 12(1)(e) of the Act preferred by the Plaintiff. In support of his submissions, learned Counsel for the Appellant placed reliance on the decision rendered in Sujan Singh v. Lalsahab and Anr. 1993 JLJ 552 . On the other hand, learned Counsel for the Respondent landlord submitted that the matter is concluded against the Appellant by the concurrent finding of the fact. It is also submitted by him that the landlord is the best judge of his need. In support of his submissions, learned Counsel for the Appellant placed reliance on the decision rendered in Smt. Sujata Sarkar v. Anil Kumar Duttani 2009(2) MPLJ 156 : AIR 2009 (NOC) 1590 (MP), Dinesh Kumar v. Usuf Ali AIR 2010 SC 2679 and Rajaram v. Mukesh Kumar 2010(4) MPLJ 692. 5. I have considered the submissions made by learned Counsel for the parties. Under Section 12(1)(e) of the Act in order to seek a decree for eviction the landlord is required to prove that he requires the accommodation bona fide and he has no suitable accommodation of his own in occupation in the town concerned. In Ram Sarup Gupta v. Bishun Narain Inter College and Ors. (1987) 2 SCC 555 , it has been held by the Supreme Court that the pleadings should be liberally construed and its substance has to be seen. In Ram Sarup Gupta v. Bishun Narain Inter College and Ors. (1987) 2 SCC 555 , it has been held by the Supreme Court that the pleadings should be liberally construed and its substance has to be seen. If the parties are aware of the plea involved and proceeded with the trial Court on that basis, the question of absence of plea cannot be raised by any of the parties. It has further been held that pleadings need not contain the exact statutory language or expression. Similarly in Vishwamitra Ram Kumar v. Vesta Time Company (2007) 14 SCC 374 it has once again been reiterated that if the parties went to trial and were aware of the controversy involved in the suit, later on no grievance in this regard could be made. In Sree Swayam Prakash Ashramam and Anr. v. G. Anandavally Amma and Ors. (2010) 2 SCC 689 . it has been held that for the absence of pleading in the plaint, decree should not be interfered with, if the parties understood their case and have adduced evidence in this regard. 6. In the backdrop of aforesaid well settled legal position, facts of the case may be seen. In the instant case, the Plaintiff in paragraph 6 of the plaint has clearly stated that Plaintiff needs the accommodation in question bona fide for the purpose of residence and the accommodation in his possession is not sufficient. It has further been pleaded by the Plaintiff that he is unable to climb the stairs on account of his permanent disability. In his deposition before the Court the Plaintiff who has been examined as Plaintiff witness No. 1 has stated that he has no alternative accommodation in his possession. In paragraph 41 of his cross-examination he has stated that on the ground floor there are two rooms which belong to his brother. The Defendant in his written statement has not taken any plea with regard alternative accommodation available to the Plaintiff. On the other hand, the Defendant who has been examined as Defendant witness No. 1 in paragraph 27 has stated that he does not know how many rooms are situate on the ground floor. He has further admitted that he is not aware that any alternative accommodation is available to the Plaintiff. It is well settled in law that burden of proof lies on the person who asserts the affirmative. He has further admitted that he is not aware that any alternative accommodation is available to the Plaintiff. It is well settled in law that burden of proof lies on the person who asserts the affirmative. In the instant case, the Plaintiff has stated in his deposition that he has no alternative accommodation. Thus, the burden shifts on the tenant to prove that landlord has any alternative accommodation. The Defendant has neither pleaded nor proved that landlord has any alternative suitable accommodation. It is also pertinent to mention here that the Defendant has not taken any objection before trial Court or appellate Court with regard to non-mentioning of availability of alternative accommodation in the plaint. The Defendant has failed to demonstrate the prejudice which has been caused to him on account of non-mentioning of availability of alternative accommodation in the plaint. The parties knew their case very well and have led evidence and, therefore, the plea that the plaint does not contain the averment with regard to absence of alternative suitable accommodation cannot be permitted to be raised for the first time in the second appeal. It is also relevant to mention here that the Defendant has failed to disclose the prejudice which has been caused to him on this account. For the aforementioned reasons, the substantial question framed by this Court has to be answered in the affirmative. 7. In the result, the appeal fails and is hereby dismissed with costs.