Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 440 (MP)

Parasmal Parakh v. Rajkumar

2012-04-24

SHEEL NAGU

body2012
JUDGMENT : This second appeal has been filed under Section 10 of the Code of civil Procedure by the landlord assailing the judgment and decree of the First Appellate Court rendered on 17.11.2004, whereby the decree rendered in favour of the landlord by the Trial Court has been reserved by the firs appellate Court on the ground that landlord Smt. Kusum Parakh failed to establish the bonafide need on the basis of the material and evidence available on record and also that Smt. Kusum Parakh being the daughter-in-law of the original plaintiff-landlord does not fall within the category of beneficiaries as mentioned in Section 12 (1) (f) of the M.P. Accommodation Control Act, 1961 (Act of 1961 for brevity). In this second appeal the following substantial question of law has been framed:- Whether the first appellate Court has erred in dismissing the suit on the ground of bonafide need of appellant No. 2, Smt. Kusum Parakh, who is a co-owner of the suit property on the ground that she being daughter-in-law of the original plaintiff is not entitled to get decree under Section 12 (1) (f) of the M.P. Accommodation Control Act? Pertinently IA No. 14941/2009 was filed proposing additional substantial question of law in regard to which this Court by interlocutory order dated 4.11.2009 had directed that the said IA No. 14941/2009 will be considered at the time of final hearing. In view of the findings recorded infra, this Court does not deem it proper to allow the said IA No. 14941/2009 and frame the proposed additional substantial question of law as the said proposed additional substantial question of law in substance is covered by the substantial questions of law already framed on 27.7.2005 on which this appeal is being decided. The suit was filed by landlord-plaintiff Ghisulal Jain seeking vacation of the shop and the adjacent Chabutra for construction by way of renovation of the suit accommodation for enabling his second son Veerchand to run a jewelery shop. It was averred in the plaint by way of amendment that due to the death of second son veerchand, the shop is now being sought for the daughter-in-law of the original plaintiff, namely, Smt. Kusum Parakh (the widow of deceased Veerchand). It was averred in the plaint by way of amendment that due to the death of second son veerchand, the shop is now being sought for the daughter-in-law of the original plaintiff, namely, Smt. Kusum Parakh (the widow of deceased Veerchand). It was further averred in the plaint that he has no other suitable alternative accommodation within the city of Gwalior for the said purpose, for which the plaintiff sought vacation of the suit accommodation. After recording of the evidence, the Trail Court by the judgment and decree believed the statement of the plaintiff of bonafide need on the basis of the exhibits and also the oral evidence coupled with the fact that the defendant failed to produce any contrary evidence. The Trail Court in para 27 of its judgment held that the defendant in his statement before the court has admitted the availability of financial resources with the plaintiff to carry out the purpose and need, for which the suit accommodation was sought to be vacated. Accordingly the Trail Court held that the ground raised in accordance with Section 12 (1) (f) of the Act of 1961 was made out by the plaintiff. Consequently the Trial Court passed the decree of eviction. On preferring an appeal, the tenant succeeded as the First Appellate court set aside the decree of the Trial Court on the ground that plaintiff-smt. Kusum Parakh, who was the daughter-in-law of the original plaintiff, is not covered by the beneficiaries mentioned in Section 12 (1) (f) of the Act of 1961 and also that said Smt. Kusum Parakh has failed to establish any bonafide need existing in her favour at the time of filing of the suit, which was originally filed for the bonafide need of carrying business of the deceased son of the original plaintiff. The First Appellate Court further held that if Smt. Kusum Parakh had bonafide need of carrying on business in the suit premises, then she could have very well done so in the other shops within the same suit accommodation, which had been vacated by the tenants about 4years ago and which were lying unoccupied. The First Appellate Court further held that Smt. Kusum Parakh is pursuing her business in some other rented accommodation and, therefore does not need suit accommodation and therefore the suit on behalf of Smt. Kusum Parakh was not bonafide. The First Appellate Court further held that Smt. Kusum Parakh is pursuing her business in some other rented accommodation and, therefore does not need suit accommodation and therefore the suit on behalf of Smt. Kusum Parakh was not bonafide. The First Appellate Court further held that Smt. Kusum Parakh has failed to bring on record any evidence to substantiate her claim of bonafide need under Section 12 (1) (f) of the Act of 1961 by holding that there was nothing on record to establish that Smt. Kusum Parakh has received the property in family partition or otherwise in her capacity as descendant of her deceased husband Late Veerchand to establish that she is the landlord of the suit accommodation. The First Appellate Court has also held that the suit had been filed in 1969. whereafter the original plaintiff died and the son of the plaintiff had also died bringing on record the daughter-in-law of the original plaintiff and, therefore the bonafide need of the original plaintiff or his son, which existed in 1969, came to an end with his death. In support of his contentions, the learned counsel for the appellant-landlord has relied upon the decisions in the cases of Raghunath G. Panhale v. M/s Chaganlal Sundarji and Co. AIR 199 SC 3864 Para 14; Harbans v. Smt. Margret 199 JLJ 97 (FB) Para 6; Kamleshwar Prasad v. Pradumanju Agarwal AIR 1997 SC 2399 ; Ajay Kumar and others Vs. Ashok Kumar and others 2006 (3) MPHT 292 ; Chander Kali v. Jagdish Singh AIR 1977 SC 2262 Para 7. Counsel for respondent-tenant, on the other hand, states that the substantial question of law framed on 17.7.2005 is not involved as the main issue in the present case is of bonafide requirement, which has not been proved by Smt. Kusum Parakh. It is further submitted by the learned counsel for respondent-tenant that in terms of paragraphs 21,22 and 23 of the judgment of the First Appellate Court, the need of Smt. Kusum Parakh is not bonafide. It is further submitted by the learned counsel for respondent-tenant that in terms of paragraphs 21,22 and 23 of the judgment of the First Appellate Court, the need of Smt. Kusum Parakh is not bonafide. It is further submitted that the perusal of he map annexed with the plaint indicates that a sufficiently large shop in vacant possession is available with the landlord within the same suit premises which can satisfy the need and, therefore the claim of the landlord is not maintainable it is further submitted by the learned counsel of the respondent-tenant that the intention shown by the plaintiff to renovate the shops by converting the small shops into a big hall for meeting the alleged bonafide need is belied by absence of any permission sought or sanction obtained from the Municipal Authorities in [ that regard. It is lastly submitted that the ground of renovation, for which vacation is being sought, may give rise to a cause under Section 12 (1) (h)| and not under Section 12 (1) (f) of the Act of 1961 and, thus, no interference is called for in the order of the First Appellate Court. In support of the above said contentions, reliance has been placed by the counsel for the respondent-tenant on the decisions in the cases of Adil Jamshed Frenchman v. Sardar Dastur School Trust. (2005) 2 SCC 476 ; and Praveen Vs. Deity Shri Vishnu Bhagwan 2005 (3) MPLJ 39 . The arguments of the learned counsel of rival parties are heard and the records of the present second appeal and the two Courts below are perused.' The Trial Court while rendering the judgment and decree in favour of the landlord-plaintiff framed issue no. 1that whether Smt. Kusum Parakh,; the plaintiff, has bonafide need of the accommodation in question for business purpose? Evidence was led by the plaintiff in support of the said issue, which is evident from reading of para 2 of the Trial Court, mentioning a number of documents including the Registration Certificate of the firm issued by the; Sale Tax Authorities. 1that whether Smt. Kusum Parakh,; the plaintiff, has bonafide need of the accommodation in question for business purpose? Evidence was led by the plaintiff in support of the said issue, which is evident from reading of para 2 of the Trial Court, mentioning a number of documents including the Registration Certificate of the firm issued by the; Sale Tax Authorities. The Certificate of the registration of the firm has been issued by the Shops Establishment Act, 1958, showing Smt. Kusum Parakh| as the proprietor of the firm since 1.10.1989, the income tax Return and other documents were also admitted in evidence by the landlord-appellant, Per contra, the defendant did not produce any documentary evidence to counter the said contentions of the plaintiff Smt. Kusum Parakh that she was involved in the business of trading of jewelery, for which she bonafide requires the suit accommodation. The plaintiff's witness No. 6 Ghisulal hasstated that by Ex. P/3, the necessary sanction for renovation has been obtained from the Municipal Corporation and the necessary evaluation has already' been made in regard to the said sanction on the basis of the layout approved by the Municipal Corporation, Gwalior. Though this witness contends that the assessment had been made on 14.12.1970, but the same can be revised in f terms of the present Price Index. On the other hand, the defendant-tenant in support of his contention, this alternative accommodation is available to the plaintiff-landlord within the same suit premises, which is lying vacant since 4years statements of the witnesses have been recorded. It has also come on record before the Trial Court that for carrying out the business of trading of jewelery by modern method, it is essential that the suit accommodation is needed as the shop, which is vacant since 4years, is not suitable for requirement of the landlord for carrying out the said purpose. The Trial Court has further held that the suitability of accommodation sought by the landlord while claiming vacation under Section 12 (1) (f) of the Act of 1961, can be decided alone by the landlord with the tenant having no role to play in this decision making process. The Trial Court has further held that the suitability of accommodation sought by the landlord while claiming vacation under Section 12 (1) (f) of the Act of 1961, can be decided alone by the landlord with the tenant having no role to play in this decision making process. The abovesaid findings of the Trial Court have been unsettled by the First Appellate Court on the ground that Smt. Kusum parakh is not the landlord (being the daughter-in-law of the original plaintiff), she cannot be categorized as one of the beneficiaries under Section 12 (1) (f) of the Act of 1961 and also that the need, which existed at the time of filing of the suit in 1960, does not exist now after the death of the original plaintiff and also his son. A perusal of Section 12 (1) (f) of the Act of 1961 indicates that the landlord can seek vacation for business pursuits of his own or his son or any other person for whose benefit the accommodation is held. Smt. Kusum Parakh as brought ample evidence on record to demonstrate that she is involved in the business of trade of jewelery and has also expressed her intention to construct a modern showroom for which the suit accommodation is the most suitable. The financial capacity of said smt. Kusum Parakh is admitted, as it is not denied by the defendant. Smt. Kusum Parakh may not be the son of the original plaintiff, but is certainly the daughter-in-law .of the original plaintiff and by virtue of which has ancestral share in the property, which inter alia comprises of the suit accommodation, which fact has not been denied by the defendant and, therefore the said Smt. Kusum Parakh can very well fall within the definition of any other person in whose interest the accommodation in question is held. Once the said Smt. Kusum Parakh has established her bonafide need and her intention of carrying business of trading in jewelery, the fact that there is another vacant shop available in the same suit premises, cannot come in way of the landlord to successfully claim vacation of the suit accommodation under Section 12 (1) (f) of the Act of 1961 for the simple reason that the choice of the suitable accommodation cannot be made by the tenant and has to be decided exclusively by the landlord, who is the best judge of his/her need. Moreover, the First Appellate Court has further erred in holding that the bonafide need, which existed at the time of filing of the suit in 196 got extinguished on account of death of the original plaintiff and his son. The daughter-in-law of the original plaintiff can very well pursue the litigation if she falls within the definition of any other person for whose benefit the suit accommodation is heldand can carry out the same business as intended to be carried out by the original plantiff. In view of the above, this Court is compelled to answer the substantial question of law in favour of the landlord appellant. Consequently, the judgment and decree of the First Appellate Court dated 17.11.2004 is set aside and the judgment and decree of the Trial Court dated 10.02.2003 in Civil Suit 114-A/198 is upheld.