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2013 DIGILAW 1420 (MP)

Kaushalya v. Padam Kumar Jain

2013-11-19

K.K.Trivedi

body2013
ORDER 1. This second appeal is directed against the judgment and decree dated 10th April, 2012 passed in Regular Civil Appeal No. 3-A/2011 by the Additional District Judge to the Court of First Additional District Judge, Katni arising out of judgment and decree dated 30.10.2009 passed in Civil Suit No. 68-A/2009 by the Third Civil Judge Class-II, Katni, by which a decree of eviction against the appellants has been affirmed. The respondent/plaintiff filed the suit against the appellants on the ground of bona fide need of the suit accommodation. The need of bona fide was shown to be for the son to start his office as an advocate. Such a suit was resisted on the ground that sufficient accommodation was available to the respondent/ plaintiff to establish the office of his son. It was contended that the very same respondent/plaintiff has filed a suit against yet another tenant-Kanhaiyalal on the bona fide need of the accommodation let out to him and the said suit was decreed, which decree was affirmed up to the stage of Second Appeal. The possession of the said accommodation was obtained by the respondent/plaintiff even then the suit was filed with mala fide intention. The right to file the suit was also denied by the appellants. 2. The trial Court after recording the evidence has reached to the conclusion that the respondent/plaintiff has made out a case for grant of decree of eviction on bona fide need and decreed the suit. The appellants preferred the first appeal which has been dismissed by the Lower Appellate Court after examining the law and marshalling the evidence available on record, hence this appeal is preferred. 3. It is vehemently contended by learned counsel for the appellants that once it was established that the respondent/plaintiff has already obtained accommodation for the very same son, for the purposes of establishing the business of readymade garments, he could not have filed the suit against the appellants for eviction on the ground of bona fide need of the very same son, for establishing his office as an advocate. It is contended that these specific plea raised by the appellants have not been looked into, therefore, the judgment and decree impugned are bad in law. The evidence in this respect whether the respondent/plaintiff has established his bona fide need of establishing the office of his son in the suit accommodation or not is examined. It is contended that these specific plea raised by the appellants have not been looked into, therefore, the judgment and decree impugned are bad in law. The evidence in this respect whether the respondent/plaintiff has established his bona fide need of establishing the office of his son in the suit accommodation or not is examined. The fact that the son of the respondent/plaintiff is already enrolled as an advocate by the State Bar Council of Madhya Pradesh is proved by document Ex.P/6. This being so, both the Courts below have found that the bona fide need has been established by the respondent/plaintiff. 4. Once the bona fide need is established even if any alternative accommodation is available to the respondent/plaintiff, it is the settled law that the Courts cannot force such a landlord to utilize alternative accommodation to satisfy his need. The well settled law is seen in the cases of Joginder Pal v. Naval Kishore Behal, AIR 2002 SC 2256 , Yadvendra Arya and another v. Mukesh Kumar Gupta, AIR 2008 SC 773 and Kashmir Singh v. Harnam Singh and another, AIR 2008 SC 1749 , wherein the apex Court has held that once the need is shown and is proved by the landlord, the right to utilize the accommodation is available to the landlord and Courts cannot forced the landlord to use any accommodation other than the desired accommodation. Similar is the finding recorded by the apex Court in the case of Uday Shankar Upadhyay and others v. Naveen Maheshwari, 2010 (3) JLJ 75, wherein it has been held that once it is proved that the landlord is in bona fide need of the premises, it is not for the Courts to say that he should shift to the first floor or any higher floor. The Court cannot dictate to the landlord which floor he should use for his business and that is for the landlord himself to decide. Undisputedly, the alternative accommodation is situated on the first floor of the very same building, therefore, if bona fide need of the respondent/plaintiff is made out, no dictate can be issued to him to establish the office of his son on the first floor of the building. The convenience and choice of the respondent/plaintiff is required to be seen and not that of the tenant. 5. The convenience and choice of the respondent/plaintiff is required to be seen and not that of the tenant. 5. In view of the aforesaid, no error of law is found in consideration of the appeal of appellants by the first appellate Court. No question of law arises for consideration in this second appeal which fails and is hereby dismissed. ............