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2014 DIGILAW 161 (CHH)

OM ENGINEERING WORKS v. INDRABHUSHAN MUDALIYAR

2014-04-15

SANJAY K.AGRAWAL

body2014
JUDGMENT 1. The substantial questions of law formulated and to be answered by this Court in defendant’s second appeal are as under:- (i) Whether in view of plaintiffs admission in Para 1 of his deposition that the residential and non-residential premises are two separate parts and were let out separately, one suit in respect of both the tenancy is maintainable? (ii) Whether in the facts and circumstances and in the state of evidence on record the decree for eviction under Section 12 (1) (e) (1) has been validly granted and are sustainable? [For sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]. 2. Sans unnecessary details, the facts which are essential to be stated for the purpose of disposal of the present second appeal are as under:- A. Plaintiff's case :- 2.1 The Original plaintiff-Late B.T. Raja Bahadur Mudaliyar, now survived by the plaintiffs, has filed a civil suit for possession, arrears of rent, damages etc. in respect of his ownership accommodation situated at G.E. Road, Rajnandgaon and described in Schedule-A annexed to the plaint (hereinafter called 'the-suit premises') by making a pleading that accommodation situated with two sides of the street have been given on monthly rent of Rs. 450/- to the defendant Om Engineering Works for composite purpose i.e. premises situate at one side of street is used by the defendant for his business and other side of the street is used as their residence. Tenancy in respect of the said accommodation is monthly commencing from 1st day of each English calendar month and expiring on the last day of same calendar month. 2.2. It is further case of the plaintiff that the suit premises is required bonafidely by the plaintiff for residential and non-residential need of his son namely Nitin Mudaliyar and for satisfaction of that need the plaintiff is not in possession of any other reasonably suitable accommodation in the city of Rajnandgaon. 2.3 The plaintiff has further pleaded that in absence of accommodation the plaintiff's son namely Nitin Mudaliyar has to work temporarily with different institutions and he has to carry out the work of accounting by visiting their premises. Further, the plaintiff has stated that since no sufficient accommodation is available, the plaintiff is finding it difficult to start his independent business. Further, the plaintiff has stated that since no sufficient accommodation is available, the plaintiff is finding it difficult to start his independent business. The plaintiff's son wish to perform work of accounting by use of computers and for that purpose he is having sufficient amount but in absence of accommodation he is finding it difficult to install the computers. It was also stated that because of lack of accommodation the plaintiff is finding it difficult to get the said son married and since the demand made by the plaintiff to the defendant has failed. the plaintiff is forced to file suit for ejectment of the defendant from the suit premises appropriately described in the Schedule-A to the plaint. after serving a notice in this regard and prayed for the decree for eviction in his favour. B. Defendant's Case : 2.4 After service of summons the defendant appeared before the Court below and filed written statement and denied the case of the plaintiff in toto and stated that two premises given on rent at different points of time. It has been further stated that the plaintiff is not in the requirement of the suit accommodation for satisfaction of bonafide need of his son Nitin. 2.5 The defendant has further pleaded that the plaintiffs are having another accommodation in Sarangpani Chhal where various accommodations are vacant and the same have been given on rent and denied the bonafide need of the plaintiff. The defendant has further pleaded that only purpose of the plaintiff is to get the rent increased. 2.6 By way of counter claim, the defendant has pleaded that the defendant perfected her title since they are in possession of the suit premises since 1978. 2.7 The plaintiff has filed written statement to the counter claim where the averments made by the plaintiff about the perfection of their title by adverse possession have been denied. C. Judgment and decree of both the Courts below : 2.8 On the pleadings of the parties, 12 issues were framed by the Trial Court and in support of his case; plaintiff has examined himself and his son-Nitin, whereas defendant has examined two witnesses. C. Judgment and decree of both the Courts below : 2.8 On the pleadings of the parties, 12 issues were framed by the Trial Court and in support of his case; plaintiff has examined himself and his son-Nitin, whereas defendant has examined two witnesses. The findings of the Trial Court on all the issues are thus: Øekad okn iz’u fu”d”kZ 1- D;k fookfnr ifjlj dk fdjk;k 450@& :- ugh gS\ fdjk;k jkf’k 450@& :- Ikzekf.kr gSA 2- D;k izfroknh fu;fer fdjk;k tek ugh djrk gS\ gka 3- D;k oknh dks izfroknh ls 2]700@& :- fdjk;k izkIr djuk gS\ gka 4- D;k oknh dks fookfnr ifjlj Lo;a ,oa mlds iq= ds jgokl ,oa O;olk; ds fy, vko’;drk gS\ gka 5- D;k oknh ds ikl jktukanxkao ‘kgj es vU; mi;qDr edku ugh gS\ gka 6- D;k oknh] izfroknh ls okn izLrqfr fnukad ls vf/kiR; fnukad rd 30@& :- izfrfnu {kfriwfrZ izkIr djus dk vf/kdkjh gS\ ugh 7- D;k oknh us okn dk mfpr ewY;kadu ugh fd;k gS\ Ukgh 8- D;k okn dks Jo.k djus dk vf/kdkj bl U;k;ky; dks ugh gS\ Ukgh 9- D;k vko’;d i{kdkj ds vHkko es oknh dk okn izpyu ;ksX; ugh gS\ Ukgh 10- D;k izfroknh dks fookfnu ifjlj ij izfrdwy vf/kiR; izkIr gks x;k gS\ Ukgh 11- lgk;rk ,oa okn O;;\ vakf’kd :i ls izekf.kr 12- vfrfjDr okn iz’u %& D;k izfroknh }kjk oknh ds LoRo dks badkj fd;k x;k gS] ;fn gkW rks izHkko\ izekf.kr ugh gSs 2.9 The Trial Court by its impugned judgment and decree dated 19/01/2006 granted the decree in favour of the respondents/plaintiffs in accordance with Section 12(1)(a)(e)(f) of the Chhattisgarh Accommodation Control Act, 1961 (in short "the Act of 1961"). 2.10 On appeal filed by the appellant/defendant, the First Appellate Court by its judgment and decree dated 07/04/2007, set aside the decree under Section 12(1)(a) of the Act of 1961, however, maintained the decree under Sections 12(1)(e)(f) of the Act of 1961. 3. Questioning the legal acceptability and sustainability of the judgment and decree dated 07/04/2007 passed by District Judge, Rajnandgaon in Civil Appeal No. 08-A/2006, this second appeal has been filed by the appellant/defendant under Section 100 of the Code of Civil Procedure, 1908 (in short "the CPC"), which has been admitted on substantial questions of law formulated and recorded in the opening paragraph of this judgment. Submission of counsels:- 4. Mr. Submission of counsels:- 4. Mr. B.P. Gupta, learned counsel appearing for the appellant/defendant would submit that ;- (i) the suit for eviction filed by the respondents/plaintiffs seeking eviction for residential and non-residential accommodation, which are in two parts, is not maintainable in view of Order 2 Rule 2 of the CPC; and (ii) the finding recorded by the trial Court granting decree for eviction under Section 12(1)(e)(f) of the Act of 1961 is contrary to the evidence and same being affirmed by the First Appellate Court on perverse finding is liable to be set-aside being contrary to the record. 5. Combating the submissions made on behalf of the appellant/defendant, Mr. B.P. Sharma, learned counsel appearing for the respondents/plaintiffs would submit that :- (i) the plaintiffs have failed to raise specific plea of misjoinder of cause of action, therefore, by virtue of Order 2 Rule 7 of CPC, he would not be entitled to raise such a plea before this Court in this second appeal; and (ii) the concurrent finding recorded by two Courts below finding the bonafide need for residential and non-residential purpose established is a pure and simple finding of fact based on record and therefore, the finding is not interfered. 6. I have heard and considered the arguments advanced by learned counsel for the parties and have also perused the record with utmost circumspection. Answer to substantial question of law (i) :- 7. A bare perusal of the plaint would show that plaintiffs have filed a civil suit for eviction of the defendant for schedule suit premises descried in Schedule-A annexed with the plaint by specific pleading that accommodation situated at two sides of the road have been given on monthly rent of Rs.450/- to the defendant for composite purpose i.e. residential as well as nonresidential purpose and tenancy in respect of the said accommodation is commenced from first date of each English Calendar month and ends on the last date of that particular month. 8. The defendant in written statement filed before the trial Court stated that the suit accommodation is in two parts, one is residential and another is non-residential, both have separate tenancy and both the premises has not been clarified, but in the written statement nowhere clearly states that there is misjoinder of the cause of action and suit is hit by Order 2 Rule 2 of the CPC. 9. 9. In order to have proper comprehension of the attack made to the decree of the two Courts below, it would be profitable to take note of Order 2 Rule 4 and Order 2 Rule 7 of the CPC, which runs as under: "Order 2 Rule 4 - Only certain claims to be joined for recovery of immovable property.-No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except – (a) claims for mesne profits of arrears of rent in respect of the property claimed or any part thereof; (b) Claims for damages for breach of any contract under which the property or any part thereof is held; and (c) claims in which the relief sought is based on the same cause of action: Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. Order 2 Rule 7 - Objections as to misjoinder.-All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived." 10. A close reading of Order 2 Rule 7 of the CPC would show that all objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement. Unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. 11. Turning back to the facts of the present case, it would appear that though, the defendant has stated that the suit accommodation is in two parts, one is let out for residential purpose and other is non-residential purpose and she was taken on rent on different time, but tenancy in respect of both the accommodation has not been clearly spelt out. It was not the case of the defendant there is misjoinder of cause of action and leave of the Court is required to continue the suit claming eviction for suit accommodation. 12. It was not the case of the defendant there is misjoinder of cause of action and leave of the Court is required to continue the suit claming eviction for suit accommodation. 12. On the other hand, it is a case of the plaintiffs that tenancy is composite and the rent of the premises is Rs. 450/- and splitting of tenancy is not permissible. Even before the First Appellate Court, no such plea appears to have been taken by the defendant, thus, the defendant has not taken such objection shall be deemed to have waived such objection if any by virtue of provision contained in Order 2 Rule 7 of the CPC and as such, the instant substantial question of law No. (i) is answered accordingly. Answer to substantial question of law No. (ii) :- 13. The determination of first question brings me to next substantial question of law formulated by this Court as to whether the decree for eviction granted under Section 12(1)(e)(f) of the Act of 1961 is sustainable as per law instate of evidence on record? 14. The original plaintiff-B.T. Raja Bahadur Mudaliyar father of present respondents/plaintiffs (who died during the pendency of suit), in the plaint has stated that the suit accommodation is required bonafidely for the residential and non-residential purpose of his son Nitin and plaintiffs have no other reasonably alternative suitable accommodation of their own in the township of Rajnandgaon and on account of non-availability of the accommodation other than suit accommodation, his son Nitin neither concentrates on the work of accountant nor the marriage could be performed for want of residential accommodation. 15. The defendant has filed her written statement in which he denied the requirement and stated that the plaintiffs have reasonably suitable alternative accommodation in their possession, but did not specify those reasonably alternative suitable accommodation in possession of plaintiffs. 16. Parties went to the trial with the above-stated pleadings on behalf of the original plaintiff B.T. Raja Bahadur Mudaliyar and he was examined himself as PW-1 and was subjected to lengthy cross-examination by the defendant. 17. According to Mr. Gupta, in course of cross-examination, Paragraphs 13 & 15, the original plaintiff has admitted that one Gwal Sahu other tenant has vacated one tenanted accommodation and plaintiffs are using that accommodation. The eviction is sought by the plaintiffs for residential as well as non-residential purpose. 17. According to Mr. Gupta, in course of cross-examination, Paragraphs 13 & 15, the original plaintiff has admitted that one Gwal Sahu other tenant has vacated one tenanted accommodation and plaintiffs are using that accommodation. The eviction is sought by the plaintiffs for residential as well as non-residential purpose. It has not been established that vacation of a portion by Gwal Sahu, which is alleged to be used by original plaintiff the bonafide need of the plaintiffs' son Nitin for residential and non-residential purpose would stand extinguished, even no cross-examination has been made as to whether the portion of the Gwal Sahu was used for residential or for non-residential purpose" and whether such a portion would satisfy the entire need as projected by the plaintiffs for said purpose. It has also not been brought on record that the size of the said portion vacated by Gwal Sahu and same is suitable for the bonafide need of the plaintiffs for residential or non-residential purpose; therefore, the emphasis made that the vacation by Gwal Sahu tenanted premises would satisfy the need of the plaintiffs is sans merit. 18. Mr. Gupta, learned counsel for the appellant/defendant, next relying upon the Paragraph-12 of the statement of the plaintiff, in which, original plaintiff has stated that particulars of the residential and vacant portion have not been given by the plaintiff would submit that plaintiff have suppressed the available alternative accommodation. He further contended that in the first floor, rooms have already constructed which will specify the need of the plaintiffs. In my opinion, these submissions cannot be accepted. 19. The Supreme Court in case of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, AIR 1999 SC 2507 , held that the landlord is the best Judge of his requirement and the Courts have no concern to dictate the landlord as to how and in what manner he should live. Relevant portion of the report reads as under: "14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Relevant portion of the report reads as under: "14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to the bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of clause (e) of sub-section (1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come." 20. Apart from the fact that there is no evidence on record to show that the aforesaid accommodation is suitable for the composite purpose for which eviction is sought by the plaintiffs. 21. In case of Dr. Saroj Kumar Das Vs. Arjun Prasad Jogani, (1987) 4 SCC 262 , the Supreme Court has clearly held that mere availability of the alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the Courts are satisfied about the genuine requirement of the landlord. 21. In case of Dr. Saroj Kumar Das Vs. Arjun Prasad Jogani, (1987) 4 SCC 262 , the Supreme Court has clearly held that mere availability of the alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the Courts are satisfied about the genuine requirement of the landlord. Relevant portion of the report held as under: "11. So far as the law on the question is concerned it is well settled that the alternative accommodation must be reasonably suitable and if it is not so then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the Courts are satisfied about the genuine requirement of the landlord." 22. In case of M.L. Prabhakar, Vs. Rajiv Singal, (2001) 2 SCC 355 , the Supreme Court has further held that alternative accommodation must be suitable in the sense of size also and suitability has to be seen from the convenience of landlord and his family members and on the basis of the totality of the circumstances including their profession, vocation, style of living, habits and background. Paragraphs- 6 & 8 of the report reads as under : "6. We have seen the material on record and read the evidence. In our view, it can not at all be said that the rooms which are available on the plot bearing No. 16/57 Gali No.1, Joshi Road are reasonably suitable residential accommodation. These are rooms which are being used by the servants of the Respondents. It can hardly be-expected that the landlord or his family shift into rooms meant for servants. A mere fact that at an earlier date a tenant was residing in these rooms does not in any way make them suitable for occupation of the landlord. 8. It is thus to be seen that the suitability has to be seen from the convenience of the landlord and his family members and on the basis of the totality of the circumstances including their profession, vocation, style of living, habits and background." 23. In case of Ram Narain Arora Vs. Asha Rani and others, (1999) 1 SCC 141 , the Supreme Court has held that alternative accommodation must be reasonable and suitable accommodation than the suit premises. Paragraphs-10 & 11 of the report held as under: "10. In case of Ram Narain Arora Vs. Asha Rani and others, (1999) 1 SCC 141 , the Supreme Court has held that alternative accommodation must be reasonable and suitable accommodation than the suit premises. Paragraphs-10 & 11 of the report held as under: "10. In making a claim that the suit premises is required bona fide for his own occupation as a residence for himself and other members of his family dependent on him and that he has no other reasonably suitable accommodation is a requirement of law before the Court can state whether the landlord requires the premises bona fide for his use and occupation. In doing so, the Court must also find out whether the landlord or such other person for whose benefit the premises is required has no other reasonably suitable residential accommodation. It cannot be said that the requirement of the landlord is not intermixed with the question of finding out whether he has any other reasonably suitable accommodation. If he has other reasonably suitable accommodation, then necessarily it would mean that he does not require the suit premises and his requirement may not be bona fide. In such circumstances further inquiry would be whether that premises is more suitable than the suit premises. Therefore, the questions raised before the Court would not necessarily depend upon only the pleadings. It could be a good defence that the landlord has other reasonably suitable residential accommodation and thereby defend the claim of the landlord. 11. There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the Court to decide the matters. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the court, neither party is prejudiced. If we analyses from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller." 24. If we analyses from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller." 24. Considering the ratio laid down by the Supreme Court in aforesaid cases and assessing the evidence on record with regard to the alternative accommodation brought on record and keeping in view the finding recorded by two Courts below, it cannot be held that the plaintiffs have reasonably suitable alternative accommodation of their own at the township of Rajnandgaon and the finding recorded by two Courts below are based on evidence available on record. 25. In case of Ram Prasad Rajak Vs. Nand Kumar & Bros. and others, AIR 1998 SC 2730 , the Supreme Court has held that existence of substantial question of law is a sine-qua-non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether need of the landlord was bonafide or not; was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record. 26. Likewise, in case of Babulal and others Vs. Shankar Lal and others, (2008) 17 SCC 638, the Supreme Court has held that Section 12(1)(f) does not require to specifically plead nature or a particular type of business. Paragraph-6 of the report provides as under: "6. A bare perusal of the substantial question of law as framed by the High Court, which is extracted above, shows that it is not even a question of law; much less a substantial question of law. Under Section 12(1)(f) of the Act what are the requirements, are stated in the impugned judgment itself. As found in the pleadings, the appellants did plead that the suit premises was bona fide required for the purpose of starting business. It is true that what kind or nature of business the appellants wanted to start in the premises. The High Court did not say that there is no evidence in this regard but it found fault that there is no pleading specifically about the nature of the business. The learned counsel for the first respondent relied upon a decision of this Court in Hasmat Rai v. Raghunath Prasad (1981) 3 SCC 103 in support of his submission that the plaint should have contained a specific averment as to the nature of the business. The learned counsel for the first respondent relied upon a decision of this Court in Hasmat Rai v. Raghunath Prasad (1981) 3 SCC 103 in support of his submission that the plaint should have contained a specific averment as to the nature of the business. It is not possible for us to find from the judgment that under Section 12(1)(f) of the Act, even the nature or a particular type of business should be pleaded. The provision itself speaks of bona fide requirement of premises for business. Assuming that the finding of the first appellate Court on the basis of the evidence was erroneous, which is not fact in this case, that itself was not a ground for the High Court to interfere with the judgment of the first appellate court, particularly in the absence of any substantial question of law that arose for consideration. The substantial question of law so framed by the High Court, as already stated above, was not at all a substantial question of law." 27. This Court in case of Pyarelal Agrawal, (Dead) Through LR. Subhash Agrawal Vs. Kamal Chandra Jain, 2006 (2) CGLJ 368 , while dealing with regard to the alternative accommodation held as under: "16. ........ A landlord may have number of accommodations but for the sake of refusing eviction it must come on record to show that any of such shop/premises was vacant and suitable for the purpose of proposed business. Unless the premises is occupied by the Landlord, the landlord is not required to specifically plead and proof either about its non-availability or about it unsuitability. If the accommodation is not in possession of the Land lord, there is no question of making pleading about it and further there is no question about drawing presumption in this regard and I hold it accordingly." 28. In view of the aforesaid discussion, the judgment and decree passed by two Courts below are in accordance with law and the trial Court as well as First Appellate Court is absolutely and perfectly justified in granting the decree under Section 12(1) (e) (f) of the Act of 1961 and no interference is called for. 29. Resultantly, the second appeal deserves to and accordingly dismissed. 30. 29. Resultantly, the second appeal deserves to and accordingly dismissed. 30. At this stage, at the request of Shri B.P. Gupta, learned counsel appearing for the appellant/defendant, 5 months' time up to 15/09/2014 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 she shall deliver vacant and peaceful possession of the suit accommodation to the plaintiffs. 2. The appellant/defendant shall deposit a sum at the rate of Rs. 550/- per month with effect from 1st of May, 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 plaintiffs 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 plaintiffs. 4. If the aforesaid three conditions are not complied with, the decree granted in favour of the plaintiffs shall be executable forthwith in accordance with law. Appeal Dismissed.