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2014 DIGILAW 58 (CHH)

Girdhari Lal v. Shyam Sunder Bhatia

2014-02-11

P.SAM KOSHY

body2014
JUDGMENT P. Sam Koshy, J. 1. This is the defendant's Second Appeal. By way of the instant Second Appeal the appellant has challenged the judgment and decree dated 13.12.2001 passed by the Fourth Additional District Judge, Raipur in Civil Appeal No. 33-A of 2001. By way of the said impugned judgment dated 13.12.2001 the first appellate Court has affirmed the judgment and decree dated 30.01.1999 passed in Civil Suit No. 40-A of 1995 by the Seventh Civil Judge Class-II, Raipur. The facts leading to the instant Second Appeal is that the Suit premises in the instant Second Appeal is part of the premises No. 5/66, M.G. Road, Raipur. The father of the present appellant was the tenant of the Suit premises since 1965-66. Respondent No. 1 filed a suit for ejectment of the appellant from the suit premises for bona fide need. From the plaint averment it is evidently clear that the plaintiff had very specifically and in categorical terms said that the plaintiff do not have any other reasonably suitable non-residential accommodation of his own for starting a separate business and therefore the suit premises was bonafidely required. Further, from the plaint averment it is specifically clear that the entire suit preferred by the plaintiff was mainly invoking the provisions of Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 now C.G. Accommodation Control Act (for short the Act of 1961). 2. The appellant/defendant on receipt of the notice immediately entering appearance before the trial court submitted his written statement denying the claim of the plaintiff apart from the other objections in respect of the maintainability of the suit etc. The defendant had specifically denied the contention of the plaintiff of not having alternative accommodation. The trial Court after conclusion of the pleadings and recording of the evidence vide its judgment dated 30.01.1999 allowed the suit of the plaintiff and passed a decree of eviction against the appellant. 3. The appellant by way of the first appeal under Section 96 of the CPC vide Civil Appeal No. 33-A of 2001 challenged the said judgment and decree. The first appellate Court also after considering the submissions of both the parties vide its impugned judgment and order dated 13.12.2001 dismissed the appeal preferred by the appellant leading to the filing of the instant Second Appeal. 4. The first appellate Court also after considering the submissions of both the parties vide its impugned judgment and order dated 13.12.2001 dismissed the appeal preferred by the appellant leading to the filing of the instant Second Appeal. 4. The instant Second Appeal was admitted for hearing vide order dated 24.02.2012 on which date the appeal was admitted on the sole substantial question of law i.e. "Whether the findings of both the Courts below regarding bonafide need of landlord is perverse as the same is recorded without considering the effect and import of document Ex.D-1 and the fact that alternative accommodation though available was not pleaded by the landlord?" 5. The instant Second Appeal was filed by the appellant in the year 2002 i.e. on 22.01.2002. However, pending the Second Appeal for final hearing before this Court the State of Chhattisgarh vide Act No. 19 of 2012 enacted a new law known as Chhattisgarh Rent Control Act, 2011 which became applicable in the state of Chhattisgarh w.e.f. 06.11.2012. According to the counsel for the respondent in view of the new Act the earlier Act stood repealed and as per the provisions of the new Act the instant appeal pending before this Court is no longer maintainable and it deserves to be dismissed. 6. Before considering the case on merits, this Court first proceeds to decide this preliminary objection put-forth by Shri Harish Chandra Shukla counsel for the respondent, as regards the maintainability of the Second Appeal. 7. The contention of Shri Shukla counsel for the respondent was that subsequent to the enactment of the new law by the State of Chhattisgarh known as 'Chhattisgarh Rent Control Act 2001 (for short 'Act of 2011') (Act No. 19 of 2012)' which came into force with effect from 06.11.2012 i.e. the date on which it was published in the Gazette of the State Government, the present Second Appeal would not be maintainable. The reason being that, as per Section 14 of the Act of 2011 the earlier law dealing with Accommodation Control Laws i.e. the Chhattisgarh Accommodation Control Act, 1961 (for short 'the Act of 1961') stood repealed and hence the Second Appeal preferred by the appellant under the provisions of the Act of 1961 would not be maintainable. For ready reference Section 14 of the Act of 2011 is reproduced herewith: 14. Repeal and savings. For ready reference Section 14 of the Act of 2011 is reproduced herewith: 14. Repeal and savings. - (1) On this Act, becoming law, through notification in the Official Gazette, the Chhattisgarh Accommodation Control Act, 1961 (No. XLI of 1961) in its application to the State of Chhattisgarh is hereby repealed. (2) The repeal under sub-section (1) shall not affect the previous operation of this enactment so repealed and anything done or action taken or deemed to have been done or taken (including any appointment or delegation made, notification, order, direction or notice issued, or rules made), by or under the provisions of the repealed enactment shall, so far as it is not inconsistent with provisions of this Act, be deemed to have been done or taken under the provisions of this Act and shall continue in force unless and until suspended by anything done or any action taken under this Act. Further, contention of the counsel for the respondent was that even sub Section (2) of Section 14 would not come to the rescue of the appellant for the reason that sub Section (2) would come into play only in the event if the provisions of the old Act i.e. the Act of 1961 is not inconsistent of the provisions of the Act of 2011. According to the counsel for the respondent under the new Act there is a very little scope for a tenant to prefer an appeal or for that matter the rights of the tenant have been substantially curtailed under the new Act and such being not the case under the old Act, therefore, the right of the appellant, if any, being a tenant henceforth would be inconsistent and therefore since it is inconsistent with the new Act the present Second Appeal would not be maintainable. 8. Counsel for the respondent submits that after the enforcement of the new Act the only thing which would be claimed to be consistent under the new Act would be an appeal by a landlord. According to the counsel for the respondent, rights which are otherwise consistent under the old Act would become inconsistent when compared with the new Act and thereby would become remediless after coming into force of the new Act. 9. According to the counsel for the respondent, rights which are otherwise consistent under the old Act would become inconsistent when compared with the new Act and thereby would become remediless after coming into force of the new Act. 9. Counsel for the respondent further submits that as per the new Act there is no right accrued upon the tenant nor is any right vested upon the tenant under the new Act. Therefore whatever claim that the appellant is putting forth becomes inconsistent and according to him sub Section 2 of Section 14 of the Act of 2011 shows that only in the event if it is not inconsistent under the new Act until the repealed Act of 1961. Counsel for the respondent in support of his contentions relied upon the case reported in AIR 1994 SCW 5011 , AIR 2004 SC 1887 , AIR 2001 SC 3580 . 10 Per contra, Shri Ravish Agrawal, Senior Advocate, appearing on behalf of the appellant submits that the preliminary objection raised by the counsel for the respondent is a totally misconceived objection. In support of his submission counsel for the appellant took us through the definition of accommodation as defined in Section 2(1) of the Act of 2011, which for ready reference is re-produced herein. 2(1) "Accommodation" means any building or part of a building, whether residential or non-residential, leased out by the landlord to the tenant and includes open space, staircase, grounds, garden, garage and all facilities and amenities forming part of the agreement between them of any land which is not being used for agricultural purposes. 11. Counsel for the appellant further took us through the provisions of Section 12 which confers certain rights upon the landlord as well as the tenant. This by itself shows that certain vested right had been conferred upon the tenant under the new Act also and finally counsel for the appellant also referred to Section 6 of the new Act of 2011 which deals with the constitution of the Rent Tribunal and referred to the proviso to Section 6 which reads as under: 6. This by itself shows that certain vested right had been conferred upon the tenant under the new Act also and finally counsel for the appellant also referred to Section 6 of the new Act of 2011 which deals with the constitution of the Rent Tribunal and referred to the proviso to Section 6 which reads as under: 6. Constitution of the Rent Control Tribunal.- (1) The State Government shall by notification constitute, within thirty days of this Act, a Tribunal in terms of Article 323B of the Constitution, to be called as Chhattisgarh Rent Control Tribunal, to give effect to the provisions of this Act, and for the adjudication or trial of any disputes, complaints, or offences with respect to rent, its regulation and control and tenancy issues including the rights, title and obligations of landlords and tenants. Explanation. - Matters relating to transfer of property and/or disputes regarding title over any property shall continue to be considered under relevant laws by the Courts of law. (2) The State Government in consultation with the High Court shall appoint the Chairman of the Rent Control Tribunal. District Judge not below the rank of super time scale, shall be eligible to be appointed as Chairman of the Rent Control Tribunal. (3) The Tribunal shall have such other members as the State Government may decide from time to time, but not less than three members including the Chairman, at any time. (4) An officer not below the rank of Deputy Secretary to the State Government shall be Member-Secretary of the Tribunal. (5) From the date, the Tribunal becomes functional, which date shall be published in the State Gazette, the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136 of the Constitution, shall stand excluded in respect of all matters falling within the jurisdiction of the Tribunal: Provided, however, that all cases pending before any court or authority immediately before the establishment of the Tribunal, shall continue to be processed under the old Act, as amended from time to time. 12. 12. Considering the submissions put forth by the either side and on perusal of the provisions of the new Act, particularly the, the proviso to Section 6 of the Act of 2011 and also taking note of the fact that in the event of accepting the contention put forth by the counsel for the respondent, it would render all those tenants who are pursuing their right under the old Act remediless. At the same time all the appeals or eviction pending before any forum under the old Act would also become infructuous automatically which in my opinion would lead to absurdity. Further, it can not be said that a tenant pursuing his rights conferred upon him under the old Act becomes inconsistent under the new Act which again is not the intention of the legislature. There can not be a situation where after coming into force of the new Act only the appeals which have been or will be filed by the landlord would be tenable before the Court and all those appeals like the present Second Appeal preferred by a tenant or to be filed by a tenant would become non-maintainable. Therefore the objection put forth by the counsel for the respondent being misconceived and is accordingly rejected. 13. With the consent of the parties, the matter was also heard on merits. When we consider the substantial question of law framed by this Court, one has to only look into the aspect whether the respondent's/landlord right from the stage of filing of his plaint has been able to establish the bonafide need of a landlord as is required under the provisions of Section 12(1)(f) of the Act of 1961. For ready reference the provisions of Section 12(1)(f) is reproduced herewith: 12(1)(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. If we read the above provisions it evidently clear that it is incumbent upon the landlord to specifically plead that he requires the premises for bonafide need and that the said landlord has no other reasonably non residential accommodation of his own in his occupation in the city or town concerned. In other words, in the event if the landlord submits that he has no reasonably non residential accommodation available, he has to establish by disclosing as to which are those non residential accommodation available to him and that for what reason and why they are unreasonably/unsuitable for the landlord for his bonafide need. 14. If we peruse the pleadings of the instant case, it is evidently clear that the landlord in his entire plaint has only said that he has no other reasonably suitable non residential accommodation of his own. In paragraph 4 of the plaint, the plaintiff had in very categorical terms stated that he wants to start a separate business of stationery in the suit premises and for which he has no other reasonably accommodation of his own in his occupation in Raipur city. He had thus claimed the suit premises for bonafide needs invoking the provisions of Section 12(1)(f) of the Act of 1961. In written statement find by the appellant-defendant, it was categorically pleaded in para-4 that the plaintiff owned several other premises in the city and has let out all such premises owned by him and it was also categorically said that the plaintiff was not in bonafide need of the suit premises but the entire action on the part of the plaintiff with an intention of getting the appellant evicted from the said suit premises. Subsequently by way of amendment when the written statement was further amended, paragraph-4-A was inserted by way of amendment and wherein it was pleaded by the appellant that the plaintiff is not in occupation of a shop premises measuring 12 x 15 = 180 Sq. ft. just behind the suit shop which again has opening towards the road side leading from the M.G. Road to Modhapara which is reasonably suitable for the plaintiff for starting his business if at all. That this fact was suppressed by the plaintiff from the Court and has thus maliciously filed the suit and had tried to invoke the provision of Section 12(1)(f) of the Act of 1961. That this fact was suppressed by the plaintiff from the Court and has thus maliciously filed the suit and had tried to invoke the provision of Section 12(1)(f) of the Act of 1961. As regards the documents which were supported by the plaintiff, a plain reading of Ex. P-11 dated 20.12.1988 and Ex. P-14 dated 08.02.1989 would evidently establish that the plaintiff in the said documents had categorically stated that he does not have any other vacant suitable accommodation. As regards the evidence that had been led by the plaintiff, statements of P.W. 1 and P.W. 3 shows that the two witnesses have given common statement that the plaintiff does not have suitable non residential accommodation, however, plaintiff's witness No. 2 i.e. P.W. 2 in his evidence in paragraph-3 had stated that the plaintiff has one shop vacant and the said shop is lying locked. As far as these averments and oral evidence that has come before the Court below, there is no dispute in this regard. 15. However, in spite of this, the trial Court vide its judgment dated 30.01.1999 allowed this suit of the plaintiff mainly on two grounds; firstly, as regards the availability of an alternative shop to the respondent, the finding was that one shop that was lying vacant belonging to the respondent plaintiff was located at the rear side of the shop of the appellant and since it was on the rear side, therefore, the same was not suitable. The second ground on which the Trial Court allowed the suit of the plaintiff was that the bonafide need of the plaintiff stood established for the reason that the plaintiff was operating his business from a tenanted shop and since he was operating his business from a tenanted shop itself shows that if at all he had an alternative accommodation available the same was not suitable. That it is for this reason that he was operating his business from a rented shop and as such the suit premises was liable to the got vacated so that the plaintiff can get possession over the same for bona fide need. 16. The said judgment dated 30.01.1999 passed by the Trial Court was put to test by the appellant in an appeal preferred Under Section 96 of the CPC. The said First Appeal was registered as Civil Appeal No. 33-A of 2001. 17. 16. The said judgment dated 30.01.1999 passed by the Trial Court was put to test by the appellant in an appeal preferred Under Section 96 of the CPC. The said First Appeal was registered as Civil Appeal No. 33-A of 2001. 17. The First Appellate Court also after considering the submissions put-forth by the appellant somehow affirmed the view of the Trial Court rejecting the First Appeal holding that the plaintiff is presently working with his brother and wanted to start a separate business of stationery and that presently the plaintiff landlord is working/operating his business from a tenanted shop and the fact that he is operating from the tenanted shop proves his bonafide need seeking eviction of the appellant defendant. For the same reasons as has been given by the Trial Court the First Appellate Court also vide its judgment dated 13.12.2001 dismissed the appeal preferred by the appellant and directed the appellant to vacate the suit property within a period of two months. Further the First Appellate Court also held that till the time the appellant vacates the suit premises he would be liable to pay mesne profit @ Rs. 418/- per month to the plaintiff. It was also ordered that the appellant defendant was liable to pay rent for the suit premises amounting to Rupees 10,032/- @ Rupees 418/- per month for two years and the appellant would also be liable to bear the cost of litigation. 18. It is this judgment which has been challenged in the instant Second Appeal. In the Second Appeal the question of law for adjudication is "Whether the findings of both the Courts below regarding bonafide need of landlord is perverse as the same is recorded without considering the effect and import of document Ex. D-1 and the fact that alternative accommodation though available was not pleaded by the landlord?" 19. When we see the evidence that has come on record and the stand taken by the plaintiff, the stand taken by the plaintiff in his pleading and the evidence given in support of his contention are self contradictory and are conflicting among themselves. From the pleading it is evidently clear that the plaintiff all along sticks to his claim that he does not have an alternative suitable accommodation and therefore he needs the suit premises for bonafide need. From the pleading it is evidently clear that the plaintiff all along sticks to his claim that he does not have an alternative suitable accommodation and therefore he needs the suit premises for bonafide need. Similarly, while giving evidence he has adduced of operating his business from the tenanted shop and that since he is in a tenant shop he wants the suit premises for his business. Both these stands taken by the plaintiff are in itself contradictory among themselves. The reason being that on one hand the plaintiff says that he requires the suit premises for starting his own business that of stationery shop and at the same time the plaintiff also gives altogether a different stand of the need of the suit premises for bonafide need so that the plaintiff can shift his existing business from the suit premises which till now is being operated from a tenanted shop. These two grounds are in conflict among themselves for the reason that one of the grounds if taken into account it would mean that the suit premises is required by the plaintiff for starting stationery shop but if we look at the second ground it would mean that the plaintiffs need is the suit premises for shifting his existing business from the rented shop to the suit premises. As such since there is a basic conflict between the two grounds and it is also not the case of the plaintiffs as per the pleadings and the evidence of the plaintiff. 20. Another aspect which would be note worthy is that in the event if the plaintiff occupies the said suit premises for shifting his business from the tenanted shop to the suit shop the bonafide need of starting a stationery shop would still remain. At the same time in the event if the stationery shop is started from the suit premises then the bonafide need of shifting the existing business from the suit shop cannot also be fulfilled. For this reason also the finding arrived at by the two Court below is apparently perverse and is not sustainable. 21. At the same time in the event if the stationery shop is started from the suit premises then the bonafide need of shifting the existing business from the suit shop cannot also be fulfilled. For this reason also the finding arrived at by the two Court below is apparently perverse and is not sustainable. 21. Another aspect which is also to be taken note of the fact that the plaintiff has not come before the Court with a clean hand inasmuch as that the plaintiff had at no point of time disclosed or brought to the notice of the Court by way of specific pleading in this regard stating that he has an alternative accommodation available and the same is not suitable for the business with he intends to start and that the suit premises is more suitable. 22. It is well settled principle of law that if the findings of the two Courts below are perverse then the second appellate Court under section 100 of the CPC has got all powers to interfere with the perverse findings arrived Act by the Courts below. 23. Counsel for appellant relied upon the decisions rendered by the Madhya Pradesh High Court reported in 2010 (3) MPLJ 203 (Gyasi Nayak v. Gyanchandra Jain), 2009 (1) MPLJ 343 (Raj Kumar Jain v. Smt. Usha Mukhariya) and the judgment in Second Appeal 912 of 2007 (Smt. Krantidevi and others v. Sunderlal Sewani) decided on 28.07.2013. 24. The jurisdiction of the High Court to interfere with the finding of facts is well defined in catena of decisions of the Hon'ble Supreme Court. It has been settled that in exercise of powers under Section 100 of the Code of Civil Procedure, the High Court can interfere with the finding of facts only if the same is shown to be perverse or based on no evidence. Hon'ble Supreme Court in a recent decision in this regard passed in the case of D.R. Rathna Murthy Vs. Ramappa ( 2011 (1) SCC 158 , para 9) has reiterated the same principles. Hon'ble Supreme Court has again in the case of Vishwanath Agrawal Vs. Sarla Vishnath Agrawal ( 2012 (7) SCC 288 ) reiterated that the High Court in a second appeal should not disturb the concurrent finding of facts unless it is shown that the findings recorded by the Courts below are perverse or are based on no evidence. Hon'ble Supreme Court has again in the case of Vishwanath Agrawal Vs. Sarla Vishnath Agrawal ( 2012 (7) SCC 288 ) reiterated that the High Court in a second appeal should not disturb the concurrent finding of facts unless it is shown that the findings recorded by the Courts below are perverse or are based on no evidence. In the instant case, from the submissions made by the respondent/plaintiff in respect of non-availability of alternate accommodation and the findings given by the two Courts below in this regard are per se contrary to the evidence on record and is also contrary to the requirement of law as is required under Section 12(1)(f) of the Act of 1961. Hence, the findings arrived at by both the Courts below are perverse. 25. Similarly in the case of Rajkumar Jain (Supra) the Hon'ble High Court in very categorical terms held that where there is no averment in the plaint and no evidence was led to prove that the landlord had no other reasonably suitable non residential accommodation of her own in her occupation in the city, the decree for eviction under section 12(1)(f) passed by the Court's below would not be sustainable. The Madhya Pradesh High Court again in the case of Gyasi Nayak (Supra) has held that in order to show the bonafide for the alleged need, the landlord is duty bound to plead the availability of the vacant accommodation with him and also the circumstances as to how the same is not suitable to him for the alleged need. The Madhya Pradesh High Court in the said judgment has held as under:- The law is well settled on this question that the landlord is obliged under the law to put forth the account of available alternate accommodation of his own and regarding unsuitability of the same for the alleged need in his pleadings. In the absence of such pleading in view of availability of such alternate accommodation with the landlord the alleged need of the landlord regarding disputed premises could not be held to be bona fide or genuine for passing the decree of eviction against the tenant. It is apparent from the admission of the respondent that he is in possession of some vacant alternate non-residential accommodation of his own in the same building but the same has not been stated in the pleadings of the application. It is apparent from the admission of the respondent that he is in possession of some vacant alternate non-residential accommodation of his own in the same building but the same has not been stated in the pleadings of the application. In such premises the impugned order of eviction in view of availability of alternate vacant accommodation with the respondent, could not be sustained. 26. For the foregoing reasons and in the light of the decisions rendered by the Madhya Pradesh High Court on the same facts and circumstances and taking into account the principles laid down in the aforesaid case laws, the impugned order of eviction passed by the two Courts below cannot be sustained in view of the availability of alternative vacant accommodation with the respondent landlord and the judgment and decree of both the Courts below have been passed ignoring the mandatory requirement of Section 12(1)(f) of the Act of 1961. Therefore, under the said circumstances, the impugned order to the extent of directing the appellant to vacate the suit premises deserves to be set aside and the application of the respondent landlord under Section 12(1)(f) of the Act of 1961 also deserves to be dismissed. 27. Accordingly, the second appeal is allowed. The judgment and decree passed by the two Courts below are set aside. No order as to costs. Decree be drawn up accordingly.