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2012 DIGILAW 574 (MP)

Ramkishore Goyal v. Sampatlal Vyas

2012-06-20

ANIL SHARMA

body2012
JUDGMENT 1. This second appeal has been filed by the appellant / defendant against the impugned judgment and decree dated 27.11.2009 passed by XIV Additional District Judge, Gwalior in Civil Appeal No. 41-A/09 confirming the judgment and decree dated 28.7.2009 passed by X Civil Judge Class-I, Gwalior in COS No. 148-A/09, by which a decree for eviction under section 12 (1) (a) and (f) of the M. P. Accommodation Control Act (hereinafter referred to as the “Act”) on the ground of bona fide need has been passed in favour of the original plaintiff Sampatlal Vyas. 2. Brief facts of the case are that the original plaintiff /landlord namely Sampatlal instituted a suit for eviction under section 12 ( 1) (f) of the Act against the appellant / defendant. During pendency of the suit, plaintiff Sampatlal died. It is alleged in the plaint that the plaintiff is owner of the house No.47/842 situated at Deedwanaoli, Lashkar, Gwalior and the appellant / defendant is tenant in the shop of this house on rent @Rs.1030/- per month. The suit for eviction has been filed under section 12 (1) (c) (f) (k) & (m) of the Act but the learned trial Court decreed the suit under section 12 (1) (f) of the Act on the ground of bona fide need. The learned lower appellate Court has also confirmed the judgment and decree passed by the learned trial Court. The appellant / defendant, who is tenant, in his written statement, has submitted that the suit shop was taken on rent by the father of the appellant / defendant namely Dr. Omkar Nath Goyal in the year 1931 from the father of the original plaintiff namely Shyamlal Vyas and the tenancy was written. The appellant / defendant is practising as dentist with the help of his sons Sanjay and Anup in the suit shop. It is also mentioned in the written statement that the plaintiff along with his brothers Ramdhan and Jagdish instituted a suit in the Court of II Additional District Judge, Gwalior, against the appellant /defendant in which compromise decree was passed on 18.12.1990. Therefore, the plaintiff is not alone owner of the suit shop and the suit for bona fide requirement to the plaintiff’s son is not maintainable. It is further alleged that the suit was filed to pressurize the defendant. 3. Therefore, the plaintiff is not alone owner of the suit shop and the suit for bona fide requirement to the plaintiff’s son is not maintainable. It is further alleged that the suit was filed to pressurize the defendant. 3. The appellant has filed application (IA No.1688/11) under Order 41 Rule 27 read with section 151 CPC for producing additional affidavit regarding compromise decree (Ex.D/1) for which Substantial Question of Law No. 2 has been framed by this Court and the averments made in I.A. No.1688/11 are to be considered. Therefore, this IA shall be considered with Substantial Question of Law No. 2. Resultantly, no further order on IA No.1688/11 is required. 4. The appellant has also filed IA No.4237/11 which is an application under section 100 (5) of C.P.C. for framing additional Substantial Questions of Law. The proposed additional Substantial Questions of Law are already covered by order dated 5.7.2010 of this Court. Therefore, there is no need to frame further additional Substantial Questions of Law as the suit is based only on bona fide need of plaintiff, therefore, I. A. is rejected. 5. Being aggrieved by the judgment and decree passed by both the Courts below, the appellant has filed this second appeal which has been admitted vide order dated 5.7.2010 on the following Substantial Questions of law :- (I). Whether the learned Courts below were justified in law in passing a decree of eviction under section 12 (1) (f) of the M.P. Accommodation Control Act ? (II). Whether the learned Courts below have erred in holding that the compromise decree (Ex.D/1) does not operate res-judicata to the present suit for eviction as the plaintiff was stopped from filing the present suit ? (III). Whether, the lower appellate Court has erred in dismissing the applications filed by the defendant under Order 6 Rule 17 CPC and Order 13 Rule 10 CPC ? 6. The substantial questions of law no. 1 and 2 are related to each other because while considering the bona-fide need, previous act of landlord is relevant, even if, the compromise decree passed between the parties (Ex.d/1) does not operate as res-judicata. 7. 6. The substantial questions of law no. 1 and 2 are related to each other because while considering the bona-fide need, previous act of landlord is relevant, even if, the compromise decree passed between the parties (Ex.d/1) does not operate as res-judicata. 7. So far as the compromise decree (Ex.D/1) is concerned, the learned counsel for the appellant has submitted that earlier suit was filed by the plaintiff and his brother Ramdhan and Jagdish and the compromise entered into between all the plaintiffs and defendants, therefore, in the light of the compromise decree, the plaintiff is not alone entitled to file suit for the need of his son. The compromise decree was passed on 18.12.1990 (Ex.D/1). It is further submitted that the learned trial Court has passed the impugned judgment and decree without considering the effect of the compromise decree (Ex.D/1). The learned trial Court has neither framed any issue regarding the effect of compromise decree (Ex.D/1) but in its para 13 of the judgment, the learned trial Court has mentioned the averments of the defendant regarding filing of the earlier suit for the bona fide need of plaintiff’s first son Krishan Kumar Vyas and on similar ground for the bona-fide need of plaintiff’s second son Hari Krishan Vyas and the previous suit was decreed by enhancing the rent. Learned counsel for the appellant further submitted that the plaintiff is bound by a compromise decree (Ex.D/1) which includes the condition that the rent will be paid @700/- per month w.e.f. 1.12.1990. Earlier the rent was of Rs.100/- per month. There was a clause for increasing the rent by 10 times after every 3 years. It is further agreed that the plaintiff will construct a market in place of disputed premises which will be completed within 3 months and 3 months notice before constructing the market will be given to the tenant. Unless the market is constructed, the tenant will be allowed to reconstruct the tenancy premises according to his need. Even the plaintiff was permitted to run any other business in place of dental clinic. It is an admitted fact that no market was constructed in place of tenancy premises. It is clear from the previous compromise decree (Ex.D/1) that bona fide need for the son of the plaintiff is only for enhancement of rent as the construction for new market has not taken place till now. It is an admitted fact that no market was constructed in place of tenancy premises. It is clear from the previous compromise decree (Ex.D/1) that bona fide need for the son of the plaintiff is only for enhancement of rent as the construction for new market has not taken place till now. It is further an admitted fact that instead of constructing market, the plaintiff has again filed suit for eviction on the ground of bona fide need of his son Hari Krishan who is working with one contractor on the salary of Rs.1500/- per month. If the market had been constructed in accordance with the compromise decree (Ex.D/1) then the bona fide need for the business of plaintiff’s son would have been come to an end. Nandgopal Vyas (PW-1) who is son of plaintiff has admitted in cross- examination that the suit property is not in the single name of his father. Therefore, looking to the filing of earlier suit by considering the fact that earlier suit was filed by Ramdhan, Jagdish and Sampatlal, the suit filed by Shyamlal alone cannot be said to be maintainable because in the earlier suit filed for bona fide need of Krishan Kumar S/o. Sampatlal Vyas not only Sampatlal but his brothers Ramdhan and Jagdish were also plaintiffs in that suit and compromise was also entered into between all the parties. 8. Learned counsel for the respondent has submitted that there is a concurrent finding of both the Courts below regarding bona-fide need of the plaintiff, therefore, such finding of fact cannot be considered by this Court in second appeal. In support of his argument, learned counsel for the respondent has cited judgment of this Court in the matter of Laxman Da v. Dharamchand, 2007 (I) MPACJ 136. 9. Learned counsel for the appellant in support of this argument has cited judgment of Hon’ble Supreme Court in the matter of Shanti Budhiya Vesta Patel and others v. Nirmala Jayprakash Tiwari and others (2010) 5 SCC 104 , Geeta Devi and another v. Daulati Devi and others (2003) 12 SCC 123 and Sailendra Narayan Bhanja Deo v. State of Orissa ( AIR 1956 SC 346 and has also cited the judgment passed by this Court in the matter of Baijanti Bai v. Prago and another ( 1991 JLJ 138 ). 10. 10. Learned counsel for the appellant further submitted that even if the judgment in the earlier suit (Ex.D/1) is not having any effect of res-judicata, it may be considered for bona-fide requirement. In support of his argument, he has cited judgment of this Court in the matter of Bhagwandas and another v. Dr. Durga Prasad Rohan, 1987 MPRCJ 29, in which it has been held that “earlier suit ended in compromise and another suit filed after effecting partition, partition appearing to be a device for seeking eviction, earlier suit even if not having the effect of res-judicata may be considered for the bona-fide requirement. In the present case, after obtaining decree on the basis of compromise (Ex.D/1), the plaintiff has failed to perform his part under the compromise by constructing new market in place of tenancy premises which would have provided places for the business to the son of the plaintiff but instead of constructing new market, the plaintiff alone has filed the suit for eviction on the ground of bona-fide need of his son for running his business. Therefore, need of plaintiff cannot be said to be bona-fide looking to his previous conduct. 11. Learned counsel for the appellant has cited judgment of Hon’ble Apex Court in the matter of Deena Nath v. Pooranlal (2001) 5 SCC 705 , in which it has been held that “finding of fact regarding bona-fide requirement must be consonant with the statutory mandate. If the Court does not apply the statutory provisions to the evidence on record in its proper perspective then a finding regarding bona fide requirement ceases to be a mere finding of fact. Such an erroneous and illegally arrived at finding would vitiated the entire judgment.” It is further held that in second appeal under section 100 of CPC, such findings can be set-aside in second appeal, even if concurrently made by lower Courts.” 12. Learned counsel for the appellant has submitted that the compromise decree in previous suit (Ex.D/1) does not bar the second suit for bona fide need of son of the plaintiff. Learned counsel for the appellant has submitted that the compromise decree in previous suit (Ex.D/1) does not bar the second suit for bona fide need of son of the plaintiff. In support of his argument, he has cited judgment of this Court in the matter of Poonam Khandelwal and others vs. Pankaj Khandelwal and others, 2012(1) MPWN 29 = 2012 (I) MPLJ 109 , but the judgment relates to condition in compromise that no eviction suit would be filed by the landlord for 30 years and on the basis of such condition, compromise was held to be void and suit filed by the landlord prior to the expiry of 30 years has been held maintainable. In the present case it has been observed that decree Ex.D/1) has not been treated as res-judicata but it has been considered for establishing bona fide need of the plaintiff. 13. Learned counsel for the respondent has cited some other judgments also on the point of res-judicata but since the judgment (Ex.D/1) has not been treated as res-judicata, therefore, such citations need not be mentioned in the present case. 14. In view of the aforesaid, it is held that the judgment and decree (Ex.D/1) does not operate as res-judicata to the present case for eviction and the plaintiff cannot be said to be stopped from filing the present suit for bona fide need of his another son but decree (Ex.D/1) is to be considered while deciding the question of bona fide need of the plaintiff for considering his previous conduct and his right to file suit as landlord. In the present case, it has been observed that the plaintiff has not complied with the terms of compromise decree (Ex.D/1) and without making new market, he has again come forward for eviction for the need of his second son by filing suit himself alone. Therefore, his need cannot be said to be bona fide as he has earlier filed suit for the same need and after enhancement of rent, the said bona fide need has come to an end. If the plaintiff’s need so genuine, he could have constructed market in terms of compromise decree (Ex.D/1) which would have provided places for running business of his son. If the plaintiff’s need so genuine, he could have constructed market in terms of compromise decree (Ex.D/1) which would have provided places for running business of his son. Therefore, the need of plaintiff cannot be said to be bona fide and both the Courts below are not justified in law in passing the judgment under section 12 (1) (f) of the M.P. Accommodation Control Act, Therefore, both the substantial questions of law are decided in favour of the appellant. Substantial Question of Law No.3 15. The appellant had filed application under Order 6 Rule 17 CPC before the learned lower appellate Court raising some objections about the maintainability of the suit by the plaintiff alone and the learned lower appellate Court dismissed the application on the ground that the fact of passing of decree (Ex.D/1) on 18.12.1990 was within the knowledge of the appellant / plaintiff as he had filed copy of judgment Ex.D/1 before the trial Court but he had not filed any application for amendment before the trial Court. Therefore, looking to the amended provisions of under Order 6 Rule 17 CPC, the fact which was within the knowledge of the party from the beginning cannot be allowed, therefore, the learned lower Court has dismissed the application. The learned lower Court was justified in dismissing the application under Order 6 Rule 17 CPC. 16. Another application filed under Order 13 Rule 10 CPC for calling the record of Civil Suit No. 18-A/78 has been dismissed by the learned lower appellate Court on the ground that the copy of the judgment (Ex.D/1) has been filed before the trial Court, therefore, there is no need for calling the record of the suit. In view of the aforesaid, the learned learned lower appellate Court has not committed any error in dismissing the application filed under Order 13 Rule 10 CPC. Therefore, the Substantial Question of Law No. 3 is answered against the appellant. 17. In view of the aforesaid, the learned learned lower appellate Court has not committed any error in dismissing the application filed under Order 13 Rule 10 CPC. Therefore, the Substantial Question of Law No. 3 is answered against the appellant. 17. Since the respondent / landlord has failed to prove the bona fide need and both the Courts below were not justified in passing the decree under section 12(1) (f) of the M.P. Accommodation Control Act as bona fide need of the plaintiff has not been proved, the appeal is allowed and the judgment and decree for eviction under section 12 (1) (f) of the M.P. Accommodation Control Act passed by both the Courts below are set-aside and the suit filed by the plaintiff is dismissed. Decree be prepared accordingly. Counsel fee if pre-certified.