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2015 DIGILAW 39 (MP)

Mohan v. Babulal (dead) LRs Dilip Kumar

2015-01-12

K.K.TRIVEDI

body2015
ORDER 1. Heard on the question of admission. 2. This appeal under section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 30.07.2014 passed in Civil Appeal No.41-A/2014 by the I Additional District Judge, Khandwa, arising out of judgment and decree dated 29.4.2013 passed in Civil Suit No.27-A/2012 by the II Additional Judge to the Court of I Civil Judge, Class-II, Khandwa. 3. The respondents/plaintiffs filed a suit for eviction of the appellants under the provisions of sections 12(1)(a) and 12(1)(f) of the M.P. Accommodation Control Act. It was contended by the respondents-plaintiffs that the demise premises let out for the non-residential purposes was required bonafidely to start the business of the son of respondent/plaintiff. It was further contended that the rent of the demise premises was not paid by the appellants despite the demand. The suit was contested by the appellants on the grounds that earlier a suit was filed for bona fide need of the non-residential accommodation for the purposes of starting business of yet another son. The said suit was contested by the appellants and was dismissed, which decree was affirmed by this Court as well. It is, thus, contended that for the alleged need of another son, the suit could not have been filed as the same would be hit by principle of res judicata. Further ground raised was that there was alternative suitable accommodation available to the respondents-plaintiffs for starting the business of son and, therefore, the need was not bona fide. It was further contended that necessary parties, who were to be impleaded in the suit, were not impleaded as parties and, therefore, the suit was liable to be dismissed for misjoinder of parties. 4. The trial Court after framing of issues recorded the evidence, came to the conclusion that the appellants were in arrears of rent with effect from January, 2007 and the said amount was deposited in the Court only after receipt of the notice of the suit. Further on appreciation of evidence, the trial Court reached to the conclusion that the demise premises was required by the respondents-plaintiffs bona fidely for starting the business of son and as such the suit was partially decreed. The appeal was preferred by the appellants against the said judgment and decree, which having been failed, this second appeal is filed before this Court. 5. The appeal was preferred by the appellants against the said judgment and decree, which having been failed, this second appeal is filed before this Court. 5. Learned senior counsel for the appellants has invited attention of this Court to the statements of some of the witnesses and contended that the statements itself indicate that alternative accommodation was available with the respondents-plaintiffs for starting of the business of the son. Therefore, the alleged need was not bonafide. Purposely such piece of evidence was not appreciated by the Court below and suit was wrongly decreed. This aspect though was raised before the lower appellate Court, again was not considered by the said Court and appeal was dismissed. It is, thus, contended that if bona fideness of the alleged need was not established, keeping in view the availability of the alternative accommodation, the suit of the respondents-plaintiffs was not to be decreed. 6. To such a submission made by learned senior counsel for the appellants, suffice it to say that the other accommodation, which was said to be available, was not suitable for the business of establishing a jewellery shop. The demise premises is situated within the Sarafa Bazar, which in fact is the place for trading in the jewelleries and, therefore, if the choice was expressed by the landlord to get the accommodation vacated for the purposes of establishing the business of son in such a shop, it cannot be said that merely because availability of the alternative accommodation in a different place, the need expressed by the plaintiffs-respondents was not bonafide. Catena of decisions have been rendered in this respect by this Court as also by the apex Court that the choice is that of the landlord and not that of the tenant. Therefore, on this premises, if consideration is not done and the defence raised by the appellants is denied, no illegality is found in such consideration. Merely because it is shown by the tenant that the landlord has some other vacant premises in his premises, that itself will not be sufficient to negative the landlord’s claim in case the landlord has established that the premises which is vacant is not suitable for the purpose of his occupation or the purpose for which he requires the particular premises. This aspect is considered by this Court in the case of Kishore Kumar v. Bhoga Bai and others [ 2006(1) MPLJ 390 ]. 7. It is then contended by learned senior counsel for the appellants that principle of res judicata would be attracted in the case in hand inasmuch as the earlier suit of the respondents/plaintiffs was dismissed up to this Court. The earlier suit was based on the requirement of the demise premises for some other person and not for the son, who is said to have experience in working in the jewellery shop. Sufficient evidence is adduced by the plaintiffs-respondents to the fact that said person was having the knowledge in dealing in jewellery business. If a desire was shown to establish a jewellery shop for the son by the plaintiff, in a subsequent suit, that would not be hit by the principle of res judicata inasmuch as the previous demand raised by the respondents-plaintiffs was for other purposes. Even otherwise, upon their own showing, the appellants have admitted that they are constructing their own house in which they are making the shops also and in that situation, it would be appropriate to confer a right to re-entry to the respondents-plaintiffs in the demise premises. That being so, such a submission made by learned senior Counsel for the appellants is not acceptable. 8. At last it is to be seen whether the suit was hit by misjoinder of necessary parties. Even the landlord concerned is not required to implead anybody for whom the need is shown in the plaint as a party in the suit. The landlord is free to seek eviction of a tenant for the need of any of his sons. In that circumstances, it was not necessary to implead other sons as party or other persons as party in the suit proceedings as neither any relief is claimed in that respect nor they were required to be heard if a decree of eviction is granted against the appellants. Such submission of learned senior Counsel for the appellants cannot be accepted. 9. In view of the aforesaid discussion, no error of law is found in the consideration and appreciation of evidence by the two Courts below. No substantial question of law arises for consideration in this appeal, which is bound to be dismissed. 10. Such submission of learned senior Counsel for the appellants cannot be accepted. 9. In view of the aforesaid discussion, no error of law is found in the consideration and appreciation of evidence by the two Courts below. No substantial question of law arises for consideration in this appeal, which is bound to be dismissed. 10. At this stage, learned senior counsel for the appellants makes a submission that since the appellants are running the business of jewellery shop in the demise premises for last 20 years, they may be allowed sufficient time to vacate the suit premises. Such a prayer is to be considered sympathetically. It is not in dispute that on earlier occasion an attempt was made to get the shop vacated from the appellants by the respondents-plaintiffs by filing a suit for the need of some other persons, which suit has failed up to the stage of second appeal. However, in the given circumstances, it would be appropriate to grant six months’ time to the appellants to vacate the suit premises. 11. In view of the aforesaid, while dismissing the appeal, appellants are granted six months’ time to vacate the demise premises and put the respondents-plaintiffs in possession. Let it be done by 31st July, 2015, failing which the judgment and decree granted by the Court below would be executable. Needless to say, the appellants would be obliged to pay the rent in the shop during the aforesaid period and would also furnish an undertaking that they will keep the shop in good condition and deliver the possession to the respondents-plaintiffs on or before 31st July, 2015 in good condition. 12. With the aforesaid, the appeal fails and is hereby dismissed. .............