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Madhya Pradesh High Court · body

2011 DIGILAW 237 (MP)

Jagdish Babu Raijaada v. Sanval Das Gupta

2011-02-18

A.M.NAIK

body2011
JUDGMENT 1. This second appeal has been preferred against decree for eviction granted in favour of plaintiff-respondent against defendant-appellant on grounds under section 12(1)(a), (e) and (i) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the Act). 2. Short facts, relevant for the purpose of this appeal, are that the plaintiff-respondent instituted a suit for eviction and recovery of arrears of rent, with allegations that he owns House No.1078/8 situated in Municipal Ward No.8, Hammal Mohalla, Shivpuri. Suit premises comprised in two rooms and one varanda on first floor is occupied by defendant-appellant as tenant at the rate of Rs.30/- per month for residential purpose. Defendant is in arrears of rent with effect from 1.4.1982, which has not been paid, despite refusal of registered demand notice on 20.2.2003. Suit premises is required bona fide by the plaintiff for residence of his son Dinesh and grandson Navin son of Shyam Sunder. He has no alternative vacant accommodation of his own to accommodate the aforesaid family members for fulfilling need. This apart, defendant has acquired a house near private bus stand in Shivpuri for his residence and has shifted there for residence with his family members. Defendant-appellant submitted his written statement stating therein that the suit house belongs to the plaintiff as well as his brother Badri Prasad, rent was paid up to 24.1.2003. It was denied that the defendant has acquired any other accommodation for his residence and has shifted there. Alleged residential need for Dinesh and grandson Navin was also denied. It was stated in specific that plaintiff has various other suitable vacant accommodations for alleged residential purpose. 3. After recording the evidence, learned trial Judge vide judgment and decree dated 11.4.2005 granted decree for eviction merely on ground under section 12(1)(a) of the Act. 4. Aggrieved by it, defendant preferred Civil Appeal No.37-A/2005. Plaintiff also submitted cross-objections under Order 41 rule 22 of the' Code of Civil Procedure, praying thereby decree for eviction also on grounds under section 12(1)(e) and (i) of the Act. Learned lower appellate' Judge vide his impugned judgment and decree dated 22.12.2005 dismissed the appeal preferred by defendant and further accepted the cross-objections on grounds under section 12(1)(e) and (i) of the Act. Accordingly, decree for eviction has been granted on grounds under section 12(1)( a), (e) and (i) of the Act. 5. Learned lower appellate' Judge vide his impugned judgment and decree dated 22.12.2005 dismissed the appeal preferred by defendant and further accepted the cross-objections on grounds under section 12(1)(e) and (i) of the Act. Accordingly, decree for eviction has been granted on grounds under section 12(1)( a), (e) and (i) of the Act. 5. Aggrieved by the aforesaid, defendant preferred the present second appeal, which has been admitted on the following substantial questions of law : “(I) Whether both the Courts below have committed an error of law with regard to granting the decree under section 12(1)(a) of the M.P. Accommodation Control Act with regard to arrears of rent? (2) Whether the first appellate Court was right in granting a decree for bona fide need of landlord in view of section 12(1)( e) of the Act? (3) Whether the first appellate Court was right in reversing the findings of the fact of the trial Court and granting decree in view of section 12(1)(i) of the Act?" 6. Plaintiff-respondent, in the present appeal, submitted an application under Order 41 rule 27 of the CPC (LA. No.7113/2007) with certified copy of municipal entry in respect of house situated near Middle School boundary in Ward No.26, Shivpuri, which is recorded in the name of appellant's wife, namely, Smt. Vimla Devi as owner of the house. Appellant's learned counsel during the course of arguments submitted a photocopy of registered sale-deed dated 9.8.1984 in rebuttal of the document submitted by respondent under Order 41 rule 27 CPC, which has not been opposed by the respondent's learned counsel. It reveals that the house alleged to have been acquired by the defendant was owned by his wife which was sold by her vide the said registered sale-deed. 7. Learned counsel for the parties made their respective submissions on the aforesaid substantial questions of law as well as I.A. No.7113/ 2007, which have been considered in the light of the material on record. Substantial question of law No.1 : 8. This substantial question of law pertains to ground under section 12(1)(a) of the Act, whereunder, the plaintiff is obliged to prove that the defendant has neither tendered nor paid whole of the arrears of rent within two months from the date of service of demand notice. Substantial question of law No.1 : 8. This substantial question of law pertains to ground under section 12(1)(a) of the Act, whereunder, the plaintiff is obliged to prove that the defendant has neither tendered nor paid whole of the arrears of rent within two months from the date of service of demand notice. On service of summons of a suit based on ground under section 12(1)(a) of the Act, defendant was obliged to deposit whole of the arrears of rent within thirty days, by virtue of section 13(1) of the Act. However, in case of a dispute about rate of rent, a Court is required to pass provisional order. According to the plaintiff, defendant is a tenant in the suit premises at the rate of Rs.30/- per month. However, the defendant denied rate of rent in paragraph 1 of his written statement. According to him, rate of rent is Rs 25/- per month. Thus, there existed a dispute about rate of rent, which ought to have been resolved by provisional order for the purpose of section 13(1) of the Act. Learned trial Judge vide order dated 13.2.2004 held that prima facie defendant is tenant at the rate of Rs.30/- per month. Learned trial Judge further directed the defendant to deposit the rent for a period of three years preceding the institution of the suit, within fifteen days. It may be seen that the suit was instituted on 31.7.2003. Defendant, pursuant to the provisional order dated 13.2.2004, deposited a sum of Rs.1,350/on 26.2.2004, which was for a period of 45 months. Thus, rent up to the month of April, 2004 stood deposited on 26.2.2004. Learned trial Judge in paragraph 20 of his judgment has observed that the defendant has not given any explanation for the delay in depositing Rs.60/- on 13.5.2004. As already observed, rent up to the month of April, 2004 was included in the initial deposit of Rs.1,350/-. This being so, no default can be said to have occurred in the deposit of Rs.60/- on 13.5.2004. Second default has been shown by the learned trial Judge to have occurred on account of deposit of rent on 16.11.2004. It may be seen that 15.11.2904 was declared local holiday on account of Id-UI-Fitar at Vidisha. This finding was obviously given ignoring the holiday of Id as well as advance deposit of rent up to April, 2004 vide receipt dated 26.2.2004. It may be seen that 15.11.2904 was declared local holiday on account of Id-UI-Fitar at Vidisha. This finding was obviously given ignoring the holiday of Id as well as advance deposit of rent up to April, 2004 vide receipt dated 26.2.2004. In this view of the matter, defendant could not have been treated as a defaulter in deposit of rent under section 13(1) of the Act and he is found entitled to the benefit of section 12(3) and 13(5) of the Act. This being so, decree under section 12(1)(a) of the Act is not sustainable in law. Substantial question of law No.1 is accordingly answered in appellant's favour. Substantial question of law No.2 : 9. Plaintiff has expressly pleaded that his son Dinesh is married who has no sufficient accommodation to reside with his family. His grandson Navin son of Shyam Sunder is also equally married. He, too, has no sufficient accommodation to reside with his family. Eviction from the suit premises has been sought for the bona fide residential need of the aforesaid persons with their families, which has been denied by the defendant on the ground that various vacant accommodations are available with the plaintiff. Learned lower appellate Judge, after appreciating the evidence, has found vide paragraph 26 that the need alleged by the plaintiff is duly proved and the defendant has further failed to prove that there is any alternative suitable residential accommodation available to the plaintiff in vacant condition. It is true that grandson Navin is running his medical shop, but it has been found on the basis of correct appreciation of the evidence on record vide paragraph 26 of the impugned judgment that the said son and grandson are members of the joint family headed by the plaintiff and there did not occur any partition between them. It has been further found that the portion occupied by Navin Gupta with his family is quite small and is equally unsuitable. Finding on the question of bona fide need recorded by the lower appellate Court is binding unless it is established that it is vitiated on account of consideration of any inadmissible evidence or non-consideration of any material admissible piece of evidence. No such perversity could be pointed out by the learned counsel for the appellant. This being so, substantial question of law No.2 is answered against the appellant in favour of respondent. No such perversity could be pointed out by the learned counsel for the appellant. This being so, substantial question of law No.2 is answered against the appellant in favour of respondent. Substantial question of law No.3 : 10. Case of the plaintiff is that defendant has acquired a house situated behind private bus stand in Shivpuri and has been residing there with his family. He has put a lock on the suit premises. This has been denied in written statement, without specific averments in respect of the said house. 11. Section 12(1)(i) of the Act reads, as under: "12(1)(i) that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or, been allotted an accommodation suitable for his residence." Perusal of the aforesaid makes it clear that landlord in order to seek eviction on the said ground is merely required to prove that the tenant has acquired any other accommodation, which is suitable for his residence. 12. As per the Chambers 21st Century Dictionary, the word "to acquire" means to get, gain, achieve or develop. According to Concise Oxford Dictionary, Eleventh Edition, the word "to acquire" means to come to possess something. According to Black's Law Dictionary, Ninth Edition, the words "to acquire" means to gain possession or control of; to get or obtain. Thus, acquirement by a tenant of vacant possession of another accommodation suitable for his residence, need not be necessarily accompanied with title. The emphasis is on obtaining vacant possession of such accommodation by the tenant. It need not be necessarily coupled with its title. The legislature in its best wisdom has not chosen to make a condition precedent that the tenant has acquired title and vacant possession of another accommodation. Thus, it is not necessary in law that such another accommodation must be owned by the tenant. Mere acquirement of another suitable residential accommodation by the tenant is sufficient to enable the landlord to seek eviction on ground under section 12(1)(i) of the Act. Thus, under section 12(1)(i) of the Act, it is merely acquirement of vacant possession of another suitable residential accommodation by the tenant, which is sin qua non for grant of decree for eviction. 13. Thus, under section 12(1)(i) of the Act, it is merely acquirement of vacant possession of another suitable residential accommodation by the tenant, which is sin qua non for grant of decree for eviction. 13. Learned lower appellate Court, after appreciating the evidence on record, has found vide paragraph 31 of the impugned judgment that the defendant has started residing in newly constructed house situated behind private bus stand at Shivpuri. Contention of the learned counsel for the appellant is that the evidence in respect of it is insufficient and cross objections on this ground could not have been accepted. Learned 10 per appellate Judge has discussed the evidence vide paragraphs No.27, 28 and 29 of the impugned judgment. Besides oral evidence, it has been clearly observed in paragraph No.29 that the registered notice marked as Annexure EX.P-5 was issued at the address of defendant, which was not accepted by him. Notice contained in EX.P-5 came back unserved on account of refusal by the defendant. It is so revealed in the endorsement marked as "A" to "A" on EX.P-5. Findings of the lower appellate Judge are further strengthened by the certified copy of the municipal entry for the year 1990-91, which is annexed to application under Order 41 rule 27 of CPC (I.A. No.711312007). House recorded in the municipal paper is shown to have been owned by Vimla Devi w/o Jagdish Prasad Raijaada (i.e. defendant). Defendant, in his written statement, could have well explained the status of this house. He appears to have deliberately' suppressed the status of the house, which was entered in the name of his wife. Appellant's learned counsel submitted photocopy of the registered sale-deed dated 9.8.1984, which reveals that the said house was sold by her to one Chintulal Bansal. Defendant has admitted that he is a tenant in the said premises at the rate of Rs.25/- per month with effect from 1.4.1978. According to the said sale-deed produced by the appellant himself, house situated behind private bus stand in Shivpuri was in possession of defendant's wife up to 9.8.1984, which comprised three rooms, latrine, bathroom and kitchen on ground floor whereas suit accommodation is comprised of merely two rooms and one varanda on first floor. Considering it, learned lower appellate Judge is not found to have committed any error in holding that the defendant had acquired another accommodation, which was suitable for his residence. 14. Considering it, learned lower appellate Judge is not found to have committed any error in holding that the defendant had acquired another accommodation, which was suitable for his residence. 14. Hon'ble Supreme Court of India in the case of Arjun Khiamal Makhijani v. Jamnadas C. Tuliani and others [ (1989) 4 SCC 612 ], has observed: "9. When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fall under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenant." 15. It has been further observed by the apex Court in the case of Malpe Vishwanath Acharya and others v. State of Maharashtra and another [ (1998)2 SCC 1 ] : "It is true that whenever a special provision, like the Rent Control Act, is made for a section of the society it may be at the cost of another section, but the making of such a provision or enactment may be necessary in the larger interest of the society as a whole; but the benefit which is given initially if continued results in increasing injustice to one section of the society and an unwarranted largess or windfall to another, without appropriate corresponding relief, then the continuation of such a law which necessarily, or most likely, leads to increase in lawlessness and undermines the authority of the law can no longer be regarded as being reasonable. Its continuance becomes arbitrary: Insofar as social legislation, like the Rent Control Act is concerned the law must strike a balance between rival interests and it should try to he just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. When there is shortage of accommodation it is desirable, nay, necessary that some protection should be given to the tenants in order to ensure that they are not exploited. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. When there is shortage of accommodation it is desirable, nay, necessary that some protection should be given to the tenants in order to ensure that they are not exploited. At the same time such a law has to be revised periodically so as to ensure that a disproportionately larger benefit than the one which was intended is not given to the tenants. It is not as if the Government does not take remedial measures to try and offset the effects of inflation. When enacting socially progressive legislation the need is greater to approach the problem from a holistic perspective and not to have a narrow or short-sighted parochial approach. Giving a greater than due emphasis to a vocal section of society results not merely in the miscarriage of justice but in the abdication of responsibility of the legislative authority. Social legislation is treated with deference by the Courts not merely because the legislature represents the people but also because in representing them the entire spectrum of views is expected to be taken into account. The legislature is not shackled by the same constraints as the Courts of law. But its power is coupled with a responsibility. It is also the responsibility of the Courts to look at legislation from the altar of Article 14 of the Constitution. This article is intended, as is obvious from its words, to check this tendency of giving undue preference to some over others." 16. In AIR 2002 SC 2256 (Joginder Pal v. Naval Kishore Behal), it has been observed: "8. The Rent Control Legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The Legislative intent has to be respected by the Courts while interpreting the laws. But it is being uncharitable to Legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants go• to the extent of being unfair to the landlords. The Legislature is fair to the tenants and to the landlords -- both. But it is being uncharitable to Legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants go• to the extent of being unfair to the landlords. The Legislature is fair to the tenants and to the landlords -- both. The Courts have to adopt a reasonable and balanced approach while interpreting Rent Control Legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of landlord the Court should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlord too are week and feeble and feel humble." In the instant case, the tenants-defendant suppressed the factum of acquiring vacant suitable residential house by his wife. He merely stated in the written statement and the evidence as well that he did not acquire any other house, and that, no other house is owned by him. There is nothing on record to show that he and his wife were residing separately or were not having cordial relations. Further there is nothing on record to prove that his wife was having separate source of earnings. Thus, in the light of the material on record, it may be conveniently presumed that the defendant had acquired vacant suitable residential accommodation, as alleged by the landlord and is liable to be evicted under section 12(1)(i) of the Act. 17. In the case of B.R. Mehta v. Smt. Atma Devi and others [ AIR 1987 SC 2220 ], it has been observed by the Hon'ble Supreme Court of India : "4. The short question is whether un del' clause (h) of section (1) of the Act allotment of a house to a wife who is a Government employee in all circumstances disentitled the tenant to retain the tenanted premises. We are unable to accept the view of the Delhi High Court. We have noted the provisions. The short question is whether un del' clause (h) of section (1) of the Act allotment of a house to a wife who is a Government employee in all circumstances disentitled the tenant to retain the tenanted premises. We are unable to accept the view of the Delhi High Court. We have noted the provisions. The purpose of the Act is to control rents and eviction, in other words, to coi1trol unreasonable evictions and to ensure that in an atmosphere of acute shortage of accommodation, there is proper enjoyment of available spaces by those who want and deserve. In other words, to ensure that there is no unreasonable and unnecessary spaces in the hands of one tenant and other tenants and landlords' need of occupation of spaces remains unsatisfied, clause (h) of section 14(1) is an attempt in a way to ration out accommodation between tenants and landlords. Looked at from that point of view unless acquisition of a premises or a flat or allotment of a premises or part of a premises by the tenant in which he had domain which he can reasonably and alternatively use as a substitute for the place he is using in the tenancy it cannot lead to a forfeiture of his right to occupy his tenanted premises. The case would be otherwise, however, if a tenant comes into possession of a premises or it allotted a piece of residence or acquires vacant possession of the premises then such a tenant cannot prevent, if other conditions are fulfilled under section 14(1)(h) of the Act being liable to forfeiture of his tenancy." 18. Dealing with an identical situation, Hon'ble Shri Justice C.K. Prasad (as he then was, presently Judge, Supreme Court of India) in the case of Dudlmath Hukum Singh v. Ashok Mahadeo Sangewar [ 1998(2) MPLJ 50 ], has observed: "4. In my opinion, in case the accommodation acquired by the wife is not available to the tenant-husband for any bona fide reason, the same may not be considered as accommodation being available to the husband-tenant. However, in case, the same is available for the husband tenant, notwithstanding the fact that the house was acquired by the wife from her own earning or from the earnings of the husband, the same shall be deemed to be acquisition by the tenant husband for the purpose of consideration of the ground of eviction." 19. However, in case, the same is available for the husband tenant, notwithstanding the fact that the house was acquired by the wife from her own earning or from the earnings of the husband, the same shall be deemed to be acquisition by the tenant husband for the purpose of consideration of the ground of eviction." 19. In the case in hand, the defendant-appellant has failed to aver and prove that he was incapacitated on account of any factor, whatsoever, from residing in the house situated behind private bus stand at Shivpuri, which was recorded in the name of his wife in the municipal papers as owner. It is not of his case that his wife was separately residing in the said house and he was prevented by her from occupying it. On the contrary, learned appellate Judge, on due appreciation of the material on record, has found that the defendant had shifted his residence with his family to the said house allegedly owned by his wife, which was suitable for his residence. The defendant is, therefore, liable to be evicted under clause (i) of section 12(1) of the Act. My this view also gets support from another decision of this Court in the case of Shivnarayan v. Narendra Kumar and others [ 2004(2) MPLJ 344 ]. Brother Hon'ble Justice Seth, J. has rightly observed: "7. However, application of this principle requires a great deal of caution. Before applying this principle one has to see where accommodation is available for husband tenant for use as residence as of right, then notwithstanding the fact that house was acquired by the wife or in her name, the other spouse if he is tenant has a right stay and use the premises then only such a acquisition shall be deemed acquisition of the tenant husband for the purpose of consideration on the ground of eviction. The intention of the legislature in divesting the tenant of his right is based upon the fact that the tenant has legally acquired another residence as of right. The correct position must be that if a wife or husband acquires a property and the other spouse if he/she is a tenant, has as a legal right by virtue of such acquisition to go and stay there, then only such a acquisition of premises attracts the provisions of clause (i) of section 12(1), otherwise the whole purpose would be defeated. In other words if for all practical and in real sense the tenant acquiesced, build another house then his need for the old tenanted premises goes and tenant loses his right to retain his right to retain is tenanted premises." 20. It has been contended on behalf of the appellant that the other house situated behind private bus stand at Shivpuri was not owned by the tenant, but was Owned by his wife. Learned counsel for the appellant placed reliance on Single Bench decision of this Court in the case of Sachhidanand Garg v. Govindlalji Maharaj [1983 JLJ SN 61 = 1982 MPLJ 129 ], wherein it is held that unless it is proved that the tenant himself has purchased the house, which is suitable for his residence, ground under section 12(1)(i) of the Act is not made out. With great respect, I find myself unable to agree with Sachhidanand Garg 's decision (supra), for the reasons already stated herein above. Under clause (1)(i) of section 12 of the Act, emphasis is put on the acquisition of vacant possession of another house, which means that another house must have been acquired by the tenant in vacant condition for his residence suitably which has no co-relation with title. 21. Lastly, it is contended by Shri Anil Mishra, learned counsel for the appellant that the said house has already been sold by the wife of the tenant vide registered sale-deed 9.8.1984 and the decree on ground under section 12(1)(i) of the Act is no more sustainable in law. Aforesaid contention is highly misconceived. The appellant himself has clearly stated that he was a tenant with effect from 1.4.1978. According to the appellant himself, the house situated behind private bus stand at Shivpuri was sold by his wife vide registered sale-deed dated 9.8.1984. His wife was in the physical possession of the said house, which was delivered to the purchaser on 9.8.1984. Thus, a ground for eviction under section 12(1)(i) of the Act has clearly accrued in favour of the landlord on account of acquirement of the said house in vacant condition, which was found suitable for his residence. Moreover, the learned appellate Judge has clearly recorded a finding that the appellant had shifted his residence to the said house with his family. Moreover, the learned appellate Judge has clearly recorded a finding that the appellant had shifted his residence to the said house with his family. Hon'ble Supreme Court of India in the case of Smt. Mohini Badhwar v. Raghunandan Saran Ashok Saran [ AIR 1989 SC 1492 ], was dealing with a tenant, who after acquiring vacant possession of her house executed agreement for sale, after four days. It has been held that the tenant would be liable to be evicted on ground of acquiring alternative accommodation and the fact that the tenant lost possession on it, when eviction petition was filed, would not protect her from being evicted on the said ground. I may also successfully refer, at this juncture to the decision of the Delhi High Court in the case of Nilzal Singh v. Dalip Singh Lamba [AIR 1995 Delhi 140], wherein it has been held that the fact that the tenant lost possession, due to sale of flat by wife, would not protect him from being evicted on ground under section 14(1)(h) of the Delhi Rent Control Act, 1958, which is similar to section 12(1)(i) of the M.P. Act. 22. In view of the aforesaid discussion, I.A. No. 7113/2007 is allowed. Document annexed to it as well as photocopy of the registered sale-deed dated 9.8.1984 produced by the appellant's learned counsel in rebuttal are taken on record. Substantial question of law No.3 is hereby decided against the appellant in favour of respondent. 23. Impugned judgment and decree for eviction on ground under section 12(1)(a) is set aside, whereas the same is hereby affirmed on grounds under section 12(1)(e) and (i) of the Act. Decree be modified accordingly. In the result, appeal fails and is hereby dismissed. Appellant to pay cost to the respondent to the tune of Rs.5,000/- (five thousand), if pre-certified.