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2014 DIGILAW 121 (CHH)

GOPAL DAGA v. PARASMAL OSTWAL

2014-03-13

SANJAY K.AGRAWAL

body2014
JUDGMENT 1. The substantial question of law formulated and to be answered in this second appeal states as under: "Whether the judgment and decree passed by the First Appellate Court is sustainable in the eyes of law, as the same is contrary to the law laid down by the Hon'ble Supreme Court in the matter of Hasmat Rai v. Raghunath Prasad ( AIR 1981 SC 1711 )?" [For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court]. 2. The imperative facts required to be noticed for determination of this second appeal are as under:- 2.1 Plaintiff-Parasmal Ostwal filed a suit for eviction and arrears of rent against the defendant on the ground in enumerated under Section 12 (1) (a) (e) (h) of the Chhattisgarh Accommodation Control Act, 1961 (hereinafter called as 'the Act of 1961') stating inter alia that the plaintiff is the owner of the suit accommodation and it has been let out on monthly rent of Rs. 850/- commencing on 1st day of English calendar month and ending on the last date of that calendar month. 2.2 It was further pleaded that Rent Controlling Authority (in short 'RCA') by order dated 30/12/2006 held the plaintiff to be the landlord of the suit accommodation and directed the defendant to make payment of the rent, but in spite of the order of RCA defendant has not made payment of the rent from January, 2007, leading to issuance of notice to the defendant on 02/04/2007 but he did not deposit the rent, leading to institution of the suit on the ground of under Section 12(1) (a) of the Act of 1961 on 04/02/2008. 2.3 It was also pleaded that suit accommodation is required by the plaintiff for his son's bonafide need for starting a business as his son Madan Lal is suffering from Polio. 2.3 It was also pleaded that suit accommodation is required by the plaintiff for his son's bonafide need for starting a business as his son Madan Lal is suffering from Polio. It was further pleaded that the plaintiff has no other reasonably suitable alternative accommodation in his possession in the township of the Rajnandgaon therefore, the suit accommodation is required to be vacated by the plaintiff under Section 12(1)(f) of the Act of 1961 and lastly pleaded that the suit accommodation is required bonafide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or re-building or alterations cannot be carried out without the accommodation being vacated and sought for decree as above stated. 2.4 The defendant filed his written statement and admitted the fact that the plaintiff is the owner of the suit accommodation but disputed the fact that he is tenant thereof, stating inter alia that the suit accommodation was let-out by Shri Laxmilal Pukhraj and rent is recovered by one Jawahar Lal Ostwal and monthly rent is Rs. 250/- per month. 2.5 It was further pleaded that the order of the RCA directing the defendant holding him to be tenant and plaintiff to be landlord was challenged before the District Court in appeal which has been dismissed thereafter the order of District Judge dismissing the appeal has been challenged in the writ petition before this Court which is pending consideration. It was further stated that all the rent has been deposited up to June, 2008 and as such no decree is grant-able under Section 12(1)(a) of the Act of 1961. It was pleaded that plaintiff's son Madan Lal is already carrying on the business of Grocery Shop and refuted the ground as pleaded under Section 12(1)(h) of the Act of 1961. 2.6 The Trial Court by its judgment and decree dated 14/07/2010 decreed the suit finding inter alia that :- (i) The plaintiff is the owner of the suit accommodation and the defendant is the tenant of the plaintiff. (ii) Ground under Section 12(1)(a) of the Act of 1961 is established as the defendant has not deposited the rent within 30 days from the date of receipt of summon or within the extended time. (ii) Ground under Section 12(1)(a) of the Act of 1961 is established as the defendant has not deposited the rent within 30 days from the date of receipt of summon or within the extended time. (iii) The suit accommodation is required bonafidly by the plaintiff as plaintiff has no reasonably suitable alternative accommodation in his possession in the township of Rajnandgaon for his bonafide need. (iv) The plaintiff is also entitled for decree under Section 12(1)(c) of the Act of 1961 as the defendant has denied the landlord's title. 2.7 Questioning the judgment and decree passed by trial Court defendant filed a First Appeal under Section 96 of the Code of Civil Procedure, 1908 (in short 'the CPC') impugning the legality and correctness of the decree granted by the trial Court. 2.8 During pendency of first appeal an application under Order 6 Rule 17 CPC was filed by the appellant/defendant seeking leave to amend the written statement stating inter alia that one shop owned by the plaintiff and possessed by other tenant-Naresh Vedha in the eastern side of suit accommodation has fallen vacant during pendency of the appeal and possession has been delivered to the plaintiff, therefore, the plaintiff is alleged bonafide is lost after getting possession of adjoining shop. The plaintiff filed the reply of the said application opposing and stating inter alia that shop vacated by Naresh Vedha/tenant is only 6 ft. by 10 ft., which will not satisfy the plaintiff's requirement and the application was opposed on the ground that the decree has also been granted on other ground also, therefore, the application is liable to be rejected. 2.9 The First Appellate Court rejected the application filed under Order 6 Rule 17 of the CPC holding that the plaintiff is a best judge so far as suitability of the suit accommodation is concerned and defendant/tenant cannot dictate the plaintiff in that regard and the plaintiff's son Madan Lal is also suffering from Polio therefore, the suit accommodation held by the defendant is more suitable for his business purpose and rejected the application and affirmed the judgment and decree of the trial Court by dismissing the appeal. 2.10 Impugning the legal acceptability and sustainability of the judgment and decree dated 22/08/2013 passed by Second Additional District Judge, Rajnandgaon in Civil Appeal No. 19-A/2013, this second appeal has been filed under Section 100 of the CPC by the appellant/defendant, which has been admitted for final hearing on substantial question of law as stated in Paragraph No.1. 3. Mr. Rajeev Shrivastava, learned counsel appearing for the appellant/defendant would submit that the First Appellate Court has committed legal error of law in not considering the subsequent events brought on record in shape of application under Order 6 Rule 17 CPC stating inter alia that the shop adjoining to scheduled suit accommodation has fallen vacant and in possession of the plaintiff and which satisfies the bonafide need of the plaintiff and placed reliance of Supreme Court rendered in case of Hasmat Rai and another Vs. Raghunath Prasad (1981)3 SCC 103 . He would further submit that the judgment and decree passed by First Appellate Court deserves to be set-aside. 4. Replying the contention so made on behalf of the appellant/defendant, Mr. Parag Kotecha, learned counsel appearing for the respondent/plaintiff while supporting the impugned judgment and decree would submit that both the Courts below have passed the decree not only under Section 12(1)(f) of the Act of 1961, but also passed the decree under Section 12(1)(a) and 12(1)(c) of the Act of 1961. He would further submit that the defendant has failed to establish subsequent events to say that bona-fide need has ceased to exist and it has no impact over the sustainability of the decree so passed by two Courts below and therefore, appeal deserves to be dismissed. 5. I have heard learned counsel appearing for the parties and considered the rival submission made therein and perused the records of both the Courts below utmost circumspection. 6. The Root question to be considered and decided in this second appeal is whether the subsequent events highlighted by the appellant/defendant would disable landlord from seeking eviction from the suit accommodation? 7. In case of Hasmat Rai and another Vs. Raghunath Prasad (1981)3 SCC 103 , the Supreme Court has held that requirement pleaded by the plaintiff/landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. It was held as under:- "14. .......... 7. In case of Hasmat Rai and another Vs. Raghunath Prasad (1981)3 SCC 103 , the Supreme Court has held that requirement pleaded by the plaintiff/landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. It was held as under:- "14. .......... Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord's requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the Court to take into consideration subsequent events. He can be precluded from so contending when the decree or order for eviction has become final." 8. In case of Ramesh Kumar Vs. Kesho Ram 1992 Suppl. (2) SCC 623, a two-Judge Bench of the Supreme Court pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. It was held as under:- "6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a cautious cognizance of the subsequent changes of fact and law to mould the relief." 9. In case of Gaya Prasad Vs. Pradeep Srivastava (2001) 2 SCC 604 , the Supreme Court held that the subsequent events must be of such nature and dimension so as to completely eclipse such need. Para-10 of the report reads as under:- "10. In case of Gaya Prasad Vs. Pradeep Srivastava (2001) 2 SCC 604 , the Supreme Court held that the subsequent events must be of such nature and dimension so as to completely eclipse such need. Para-10 of the report reads as under:- "10. We have no doubt that the crucial date for deciding as to the bona-fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists." 10. In case of Pratap Rani Tanwani and another Vs. Uttam Chand and another (2004) 8 SCC 490 , the Supreme Court has noticed in Hasmat Rai (1981) 3 SCC 103 (supra), Ramesh Kumar 1992 Suppl. (2) SCC 623 (supra) and Gaya Prasad (2001) 2 SCC 604 (supra), and held that the subsequent events highlighted must not fall within the realm of possibility or probability of non-return and must be established with certainty to show that the need has become to an end. Para-17 of the report reads as under:- "17. In the background of the factual position one thing which clearly emerges is that the High Court had considered the subsequent events which the appellants highlighted and tend to hold the bona fide need continues to subsist. As observed in Hasmat Rai case, the appellate Court is required to examine, evaluate and adjudicate the subsequent events and their effect. This has been done in the instant case. That factual finding does not suffer from any infirmity. What the appellants have highlighted as subsequent events fall within the realm of possibility or probability of non-return and not a certainty, which is necessary to be established to show that the need has been eclipsed." 11. In the aforesaid judgment Pratap Rai Tanwani and another (2004) 8 SCC 490 (supra), His Lordship also noticed the decision of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 and held that the need of the landlord must be natural, real, sincere and honest. Para-15 of the report as under:- "15. Recently, in Shiv Sarup Gupta Vs. Dr. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 and held that the need of the landlord must be natural, real, sincere and honest. Para-15 of the report as under:- "15. Recently, in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (supra), this Court in a detailed judgment; dealing with this aspect, analysed the concept of bona fide requirement and, said that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of the facts by placing himself in the armchair of the landlord and then posing a question to himself-whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. We do not think that we can usefully add anything to the exposition of law of requirement for self-occupation than what has been already stated in the three precedents." 12. Recently, the Supreme Court in case of Sheshambal (dead) through Lrs. Vs. Chelur Corporation Chelur Building and other (2010) 3 SCC 470 , held that the right to relief must be judged by reference to the date of suit or the legal proceedings were instituted and, that if subsequent to the filing of the suit, certain developments takes place, that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. Para-17 of the report reads as under:- "17. While it is true that the right to relief must be judged by reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted." 13. Thus, having ascertained the legal position with regard to the consideration of subsequent events by the Appellate Court and keeping in view that principle laid down by their Lordships of Supreme Court, turning back to the facts of the case it would appear in the instant case the plaintiff has claimed the suit accommodation for his bona-fide need for non-residential purpose that is starting business for his son Madan Lal, who is suffering from Polio and in reply to the application of amendment seeking leave to amend the plaint has clearly stated that size of the suit accommodation vacated by other tenant is smaller in size which will not satisfy the plaintiff's need and apart from the fact it will also be inconvenient for starting his business in the said shop. 14. The plaintiff has only sought leave to amend the plaint by stating that the accommodation fallen vacant, during pendency of the appeal, plaintiff's bona-fide need has to an end. Neither details including size of the suit shop has been given nor any other details/documents have been filed to support the said plea that plaintiff's bona-fide need has ceased to exist and the order rejecting the application under Order 6 Rule 17 of the CPC seeking leave to bring the subsequent events on record has even not been challenged by the defendant. 15. In the considered opinion of this Court, it was imperative for the defendant raising a plea to support the proposed amendment to establish that by such an subsequent events plaintiff's bona-fide need/requirement has come to an end and such a, claim is not no longer his bona-fide need. Considering the fact of the case and in the light of the law laid down by their Lordship in the afore-stated cases, it cannot be held that the subsequent events pleaded by the defendant is of such of magnitude that the plaintiff is not entitled to the decree for eviction on the ground of bona fide need. Considering the fact of the case and in the light of the law laid down by their Lordship in the afore-stated cases, it cannot be held that the subsequent events pleaded by the defendant is of such of magnitude that the plaintiff is not entitled to the decree for eviction on the ground of bona fide need. Particularly, taking into account that the trial Court as well as First Appellate Court both have granted decree under Section 12(1)(a) of the Act of 1961 that is arrears of rent and other is the denial of landlord's title under Section 12(1)(c) of the Act of 1961 and as such, the decree on two other grounds under Section 12(1)(a)(c) of the Act of 1961 has become final as no challenge has been made by the defendant/appellant to the decree on the above two grounds and decree on each of the afore-stated two grounds 12(1)(a)(c) of the Act of 1961 is sufficient to evict the defendant/tenant from the suit accommodation. 16. Thus, considering the entire facts and the grant of decree in favour of the plaintiff on two other grounds in addition to ground under Section 12(1)(f) of the Act of 1961 and the subsequent events highlighted and pleaded will not disentitle the plaintiff to decree under Section 12(1)(f) of the Act of 1961. I am of the considered opinion that there is no illegality in the judgment and decree of the trial Court, warranting interference under Section 100 of the CPC in second appellate jurisdiction. Substantial question of law is answered accordingly. The judgment and decree passed by First Appellate Court is affirmed and judgment and decree of the trial Court decreeing the suit is hereby maintained. 17. Resultantly; the second appeal deserves to be and is accordingly dismissed. No order as to costs. 18. A decree be drawn up accordingly. 19. At this stage, at the request of Shri Rajeev Shrivastava, learned counsel appearing for the appellant/defendant, 5 months’ time up to 14th August, 2014 is granted to vacate the suit accommodation subject to following conditions: 1. The appellant/defendant shall submit an usual written undertaking before the trial Court within 4 weeks from today that he shall deliver vacant and peaceful possession of the suit accommodation to the plaintiff. 2. The appellant/defendant shall deposit a sum at the rate of Rs. The appellant/defendant shall submit an usual written undertaking before the trial Court within 4 weeks from today that he shall deliver vacant and peaceful possession of the suit accommodation to the plaintiff. 2. The appellant/defendant shall deposit a sum at the rate of Rs. 950/- per month with effect from 1st of April, 2014 till the actual date of vacation of the suit accommodation before the trial Court during the aforesaid period of 5 months’ for payment to the plaintiff towards damages for occupation and use of the suit accommodation by the defendant, and 3. The appellant/defendant shall deposit the entire arrears of rent before the trial Court within 3 months from today for payment to the plaintiff. 4. If the aforesaid three conditions are not complied with, the decree granted in favour of the plaintiff shall be executable forthwith in accordance with law. Appeal Dismissed.