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Madhya Pradesh High Court · body

2013 DIGILAW 1510 (MP)

Chunni Lal v. Abrar Ahmad

2013-12-04

K.K.TRIVEDI

body2013
ORDER 1. This second appeal by the defendant is against the judgment and decree dated 26.09.2007 passed in Civil Appeal No.120-A/2007 by the XI Additional District Judge, Bhopal, arising out of judgment and decree dated 30.4.2007 passed in Civil Suit No.588-A/2006 by the X Civil Judge, Class-II, Bhopal. The respondent/plaintiff filed a suit for eviction of the appellant/defendant on the ground that the appellant was a tenant in the demise premises. The suit shop was required by the respondent/plaintiff bonafidely for the purposes of starting business of his son. Since the respondent/plaintiff was having no other accommodation for the purposes of starting the business of his son, the tenancy of the appellant/defendant was terminated. Despite the demand since the suit shop was not vacated by the appellant, the suit was required to be filed. 2. The suit was contested by the appellant by filing written statement stating that the respondent/plaintiff was having various other accommodations suitable for the purposes of business of his son. The son of the respondent/ plaintiff was in fact involved in the cultivation and, therefore, only with a mala fide intention, the suit was filed for eviction of the appellant on a false ground. It was stated that in fact the respondent/plaintiff was pressurizing the appellant/defendant for enhancement of the rent of the demise premises illegally but since this was not accepted, the suit was filed by the respondent/plaintiff. It was contended that such a demand of enhancement of rent was not acceptable only because the appellant was running losses in business. 3. The trial Court framed the issues, recorded the statements of witnesses and reached to the conclusion that the respondent/plaintiff could not prove that the demise premises was required bonafidely for the establishment of the business of the son of the respondent/plaintiff. However, the other issue was decided in favour of the respondent/plaintiff holding that he was not having any other suitable accommodation for establishment of the shop of his son, though it was also held that the suit accommodation was not suitable for the purposes of establishing the kerosene business of the son of respondent/plaintiff. However, the other issue was decided in favour of the respondent/plaintiff holding that he was not having any other suitable accommodation for establishment of the shop of his son, though it was also held that the suit accommodation was not suitable for the purposes of establishing the kerosene business of the son of respondent/plaintiff. Feeling aggrieved by the judgment and decree passed by the civil Court, the respondent preferred an appeal before the lower appellate Court, which after considering various law, reached to the conclusion that the respondent/plaintiff has in fact proved the bona fide need of his son and for the said purposes, a decree of eviction of the appellant from the demise premises could be granted by the civil Court. In view of this, the judgment and decree of the trial Court was reversed. The suit of the respondent/ plaintiff was decreed for eviction of the appellant, therefore, this second appeal is required to be filed. 4. This Court has admitted this appeal on the following substantial questions of law : “(i) Whether the learned first appellate Court erred in substantial error of law in decreeing the suit of plaintiff on the ground of bona fide requirement under section 12(1)(f) of the M.P. Accommodation Control Act, 1961 by misconstruing the material piece of evidence of plaintiff in para 40 of his testimony ? (ii) What is the impact of mentioning the fact in quit notice Ex.P/4 that plaintiff’s son Almas is not carrying on any business which is found to be false in the view of the statement of Almas and plaintiff himself in their evidence ?” 5. Despite the fact that the appeal was listed for final hearing, none appeared on behalf of the appellant. Learned counsel for the respondent vehemently contended that if evidence of the respondent/plaintiff is marshalled, it would be clear that the finding was rightly recorded by learned lower appellate Court that the suit accommodation was required by the respondent/plaintiff bonafidely. Taking this Court to the finding recorded in respect of Issue No.1, it is pointed out that wrongly it was held by the civil Court that no bonafide need is made out for the respondent/ plaintiff to seek eviction of a tenant from the suit accommodation. After marshalling the evidence by the first appellate Court, such an issue was rightly held to be proved in favour of the respondent/plaintiff. After marshalling the evidence by the first appellate Court, such an issue was rightly held to be proved in favour of the respondent/plaintiff. Reading out some of the statements of the witnesses, it is pointed out by the learned counsel for the respondent that from such statements, it was to be held that the bona fide need of the respondent/plaintiff was made out. Error was committed by the civil Court in appreciation of evidence, which was corrected by the lower appellate Court in rightful manner. Thus, it is stated that if a bona fide need was established by the respondent/ plaintiff and such a plea was accepted by the Court below, no error was committed, in granting decree of eviction of appellant. 6. The entire evidence of the respondent/ plaintiff is looked into. Virtually there is nothing to suggest that the bona fide need of the respondent/plaintiff was not made out. In view of this, there was no occasion to hold that the bona fide need of the respondent/plaintiff was not made out. In respect of the other question of law, even if the son of the respondent/plaintiff was doing some other business but was willing to start a new business or a supplementary business, the bona fide need so disclosed in the plaint could not be said to be imaginary. This being so, there is no justified reason to hold that the findings were illegally recorded by the lower appellate Court. 7. Relying in the case of Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, AIR 1999 SC 864 , learned counsel for the respondent contended that in case the appeal is admitted on certain substantial questions of law, the same is to be decided in accordance to the said questions of law. Once the finding is arrived on such questions of law, it is not necessary for the Court to dwell in any other question. Further, if the question of law itself is in the realm of appreciation of evidence, it cannot be said that it projects any question of law, much less any substantial question of law and, therefore, reappreciation of evidence by this Court in exercise of power under section 100 of the Code of Civil Procedure is not necessary. 8. Further, if the question of law itself is in the realm of appreciation of evidence, it cannot be said that it projects any question of law, much less any substantial question of law and, therefore, reappreciation of evidence by this Court in exercise of power under section 100 of the Code of Civil Procedure is not necessary. 8. As has been stated hereinabove, there was sufficient material to hold that the respondent/plaintiff has already made out his bona fide need of starting the business of his son at the demise premises and as such, the decree was rightly granted by the Court below to this effect under section 12(1)(f) of the M.P. Accommodation Control Act, 1961. No error of law is found in granting such a decree by the lower appellate Court. The question of law on the basis of which this appeal was admitted, answered accordingly. 9. The appeal fails and is hereby dismissed. However, in view of the fact that the appellant was not represented before this Court, there shall be no order as to cost in this appeal.