Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 759 (MP)

Ramlal (since dead) through L. Rs. v. Ashok Kumar

2012-07-26

J.K.MAHESHWARI

body2012
JUDGMENT : Assailing the judgment and decree dated 13/3/2000 passed by the lower appellate Court setting aside the judgment and decree dated 7/9/1999 passed by learned trial Court dismissing the suit seeking eviction, this appeal has been filed under Section 100 of the Code of Civil Procedure by plaintiff-landlord against tenant seeking decree of eviction. 2. This appeal has been admitted by this Court for final hearing on 2151 2001 on the following substantial questions of law : (i) Whether the finding arrived at by the learned first appellate Court that the suit premises is not required bonafide by the plaintiffs/appellants for continuing their business, is perverse as it is based on misinterpretation of evidence on record ? (ii) Whether Premnarayan the son-in-law of the plaintiff/appellant No. 1 is dependent on the plaintiffs/appellants and, therefore, the learned First Appellate Court erred in law in reversing the decree for eviction passed by the learned trial Court ?" 3. The suit was filed by plaintiffs -Ramlal and Dinesh Kumar on 17/61 1991 pleading the bona fide need of Ramlal, unmarried daughter namely Mamta and other family members to start their own business in the disputed shop situated at Station Road, Bina as reflected from the map attached to the plaint. It is said that the suit shop is required bona fide to start the business of grain merchant. It was further pleaded that daughter of plaintiff No.1 is deaf and dumb, however, plaintiff wants to start the business for her. On solemnization of marriage of the said daughter, by amendment it is pleaded that the marriage was performed with a condition that the plaintiffs shall settle his son-in-law. It is also stated that other suit is also pending on the said ground, whichever shop is vacated earlier, it will be given to son-in-law to start the business. During pendency of the appeal, application seeking amendment under Order 6 Rule 17 has been filed by the appellants/plaintiffs wherein it is said that one shop has been vacated by Radheshyam and it has been given to son-in-law and now the plaintiff No.1 and his son want to do their own business in the suit shop. In view of the said pleadings, it is urged that the suit shop is required bona fide to start business by the plaintiffs and the family members. In view of the said pleadings, it is urged that the suit shop is required bona fide to start business by the plaintiffs and the family members. During pendency of the appeal, plaintiff/appellant No.1 has died, but the need of plaintiffs/appellants has not extinguished and the need of plaintiff/appellant No.1 is still there to which decree of eviction has been prayed setting aside the judgment and decree of lower appellate Court upholding the judgment and decree of the trial Court. 4. Defendant, by filing written statement, denied the plaint averments and submitted that notice for the need of plaintiff No.2 was not pleaded at the time of filing the suit, however, the need appellant No.2 is not bona fide. It is submitted that plaintiff is having the other reasonably suitable alternative accommodation, therefore, the suit has rightly been dismissed by the lower appellate Court. During the course of hearing, it is stated by Shri Saket Agrawal, learned counsel for the appellants that he does not press this appeal so far as substantial question of law No.2 is concerned, because need of son-1 in-law of plaintiff No.1 has already been satisfied, as such question No.2 has now rendered infructuous, therefore, this appeal may be heard only on the substantial question of law No.l. 5. It is contended by Shri Saket Agrawal, learned counsel for the appellants, that looking to the averments made in para-2 and 4 of the plaint it is apparent that the need of shop is required for plaintiff No.1 and his family members to which no other reasonably suitable alternative accommodation is available. It is also clear that the plaintiffs are the owner of the suit shop and the defendant is the tenant therein. In such circumstances, looking to the evidence brought on record, need of plaintiffs: is bona fide, therefore, trial Court after appreciating the said evidence right granted decree of eviction but the lower appellate Court by misreading the statement of Ramlal (PW-3) dismissed the suit, setting aside the judgment and decree passed by the trial Court, therefore, the finding so record learned lower appellate Court is perverse which may be set aside. In support of the contention, reliance has been placed on the judgment of this Court in the case of Kamalkishore V. Narayandas reported in 1972 MPLJ 137 submitting that it is the choice of the plaintiff to start his business at a particular or in shop, however, in the facts and circumstances of the case his need is bona fide. Reliance has also been placed on the judgment of the Apex Co in the case of Uday Shankar Upadhyay & ors V. Naveen Maheshwari, repor in 2010 (II) MPJR (SC) 161 wherein it is held that the Court cannot diet the landlord which floor he should use for his business and it is for the land to decide it, however, choice is of the landlord to select the premises fi running his own business. In addition thereto, it is further submitted 1 merely due to death of father of plaintiff/appellant No.2, the requires would not be extinguished. The need ought to be on the date of filing of suit. In support of the said contention, reliance has been placed on the judgment of the Apex Court in the case of Shakuntala Bai and others V. Narayan Das and others, reported in AIR 2004 SC 3484 . Reliance has further been placed on the judgment of the Apex Court in the case of Kamleshwar Prasad V Pradumanju Agrawal (dead) by LRs., reported in AIR 1997 SC 2399 . In view of aforesaid, it is urged that merely death of plaintiff/appellant No.1 would not extinguish the requirement of plaintiff/appellant No.2 which has been established on the basis of the cogent evidence. In addition thereto, it is urged that application (LA. No.1 1217/2006) has been filed under Order 6 Rule 17 of CPC, however, allowing the said application for amendment in suit the need of plaintiff/appellant No.2 may be accepted bona fide and genuine in nature, however, by setting aside the impugned judgment and decree passed by lower appellate Court, suit filed by the plaintiffs may be decreed. 6. Shri Vivek Rusia, learned counsel for the respondent, has strenuously urged that the need of plaintiff/appellant No.1 has now been extinguished as he has died and the evidence for his need was brought before trial Court. So far as the need of daughter of plaintiff No.1 is concerned, that too has already been satisfied. 6. Shri Vivek Rusia, learned counsel for the respondent, has strenuously urged that the need of plaintiff/appellant No.1 has now been extinguished as he has died and the evidence for his need was brought before trial Court. So far as the need of daughter of plaintiff No.1 is concerned, that too has already been satisfied. However, the pleadings and the evidence brought on record is required to be seen so far as need of plaintiff No.2 only. It is contended that no evidence is available with respect to genuine and bona fide need of plaintiff No.2 for the suit shop. In the facts and circumstances, at this stage, the finding so recorded by lower appellate Court negating the need of plaintiff No.1 may be upheld because he has died and no evidence is available to prove the need of plaintiff No.2, therefore, suit may be dismissed. In addition thereto, it is urged that the defendant has a small shop of Radio repairing, however, being a petty shopkeeper, hardship of the tenant may also be considered. In such circumstances, appeal filed by the appellants may be dismissed. 7. After having heard learned counsel for the parties and on perusal of the record, it is settled position of law that the landlord cannot be dictated by tenant or by Court that which premises is suitable for starting his business, It is the choice of the landlord where he wants to run his business. In this context, the argument so advanced by Shri Vivek Rusia, learned counsel for the respondent, that plaintiff No.1 who was doing business of grain merchant on Footpath and the shop is required bona fide to shift his business is not of much importance because he has died. Thus, the finding with respect to the need of plaintiff/appellant No.1 set forth in the pleadings and evidence, looses its importance for deciding substantial question of Law No.1 framed by this Court. Now it is to be examined that as per the pleadings of the case whether the need of plaintiff No.2 is continuing to run his own business in the light of the judgment of Apex Court in the case of Kamleshwar Prasad (supra) and Shankuntala Bai and others (supra). Looking to the pleadings of the plaint, it is apparent that the suit was filed for starting the business of plaintiff No.1 and other family members. Looking to the pleadings of the plaint, it is apparent that the suit was filed for starting the business of plaintiff No.1 and other family members. At the time of filing of suit plaintiff No.2 was minor and now he is become major. During pendency of the appeal plaintiff/appellant No.1 has died, however, need to other family member would include the need of plaintiff/appellant No.2, and his need shall not be extinguished and it can be examined as per the the pleadings and evidence so brought on record. During pendency of this appeal, application (LA. No.11217/2006) under Order 6 Rule 17, CPC has been filed which is pending for consideration and as per the orders of this Court, it is required to be decided at the time of final hearing. However, looking to the proposed amendment it reveals that suit shop No.2 is required bona fide to run the business of both the plaintiffs. Thus, considering the aforesaid subsequent event, by allowing the application for amendment, the evidence on the said pleading may be examined. The evidence of Ramlal (PW-3) in para-15 is not positive on the bona fide need of plaintiff/appellant No.2. In his statement it is stated that it is not decided that which business plaintiff No.2 will do in future. It is stated that they are thoughtful to open store in the suit shop. However, on the basis of desire so projected and looking to the subsequent event i.e. death of plaintiff/appellant No.1, and also due to allowing the application for amendment in plaint, at this stage, the decree for eviction cannot be directed. Thus, looking to the facts and circumstances, plaintiff No.1 has died and cogent evidence for genuine need as per proposed amendment may be brought on record. Thus, it would be desirable that by allowing the application for amendment and after permitting the consequential amendment in written statement and to bring evidence by both the parties, the matter deserves to be remanded back, affording opportunity to both the parties. 8. Thus, it would be desirable that by allowing the application for amendment and after permitting the consequential amendment in written statement and to bring evidence by both the parties, the matter deserves to be remanded back, affording opportunity to both the parties. 8. In the facts and circumstances of the case, it is required to be observed that if the appellants want to set forth cogent pleadings in view of forgoing, however, they are further at liberty to move appropriate application for amendment before the trial Court and the same shall be considered by the trial Court in view of the fact that the amendment so made before this Court has been allowed and after allowing the said amendment, consequential amendment in the pleading may be permitted, by defendant, and after taking evidence on the point of genuine need of plaintiff No.2, the suit be decided within a period of six months from the date of appearance of the parties. The parties present today are directed to appear before the trial Court on 27th August, 2012. 9. In view of forgoing, the impugned judgment and decree passed by the lower appellate Court as well as by the trial Court are hereby set aside. The matter is remanded back in view of forgoing observations and the plaintiff No.2 is at liberty to make specific pleadings with respect to his own need and to lead evidence in this regard. Defendant is at liberty to have consequential amendment and to adduce evidence in rebuttal and the trial 1 Court is directed to decide the suit within the time so specified from the date of appearance of the parties i.e. 27th August, 2012.