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2016 DIGILAW 448 (MP)

Vinod Kumar Goyal v. Avneet Kumar Gupta

2016-06-15

S.A.DHARMADHIKARI

body2016
JUDGMENT Heard on the question of admission. 1. The appellant/tenant being aggrieved by the judgment and decree dated 2.11.2015 passed in First Appeal No.31/2015 by the IInd Additional District Judge, Shivpuri confirming the judgment and decree dated 28.4.2015 passed in Civil Suit No.147-A/2012 by the II Civil Judge, Class II, Shivpuri, whereby the suit filed by the landlord/plaintiff for eviction on the ground mentioned in section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (herein after referred to as “the Act”) has been allowed. 2. A suit for eviction and recovery of rent was filed by the plaintiff/landlord in respect of a shop situated in ward No.6, Dharamshala Road, in front of Nagrik Bank, Shivpuri, Tahsil and District Shivpuri ad-measuring about 18 feet in length from north to south and breath about 10 feet from east to west. On the east is a shop known as furniture point owned by one Gaurav Goyal, to the west there is a shop known as Shyam Traders owned by Prem Kumar Goyal, in north Dharamshala Road is situated and in the south, residential house of the plaintiff/landlord is situated. 3. The plaintiff/landlord in the plaint had stated that he is in bona fide requirement of the shop in question because no business is being carried out by the defendant-appellant and has already closed the business of medical shop. The son is running a furniture shop on the east of the shop in question and there is an urgent need of the shop so that he would be in a position to remove the partition of the furniture shop and simultaneously start the business of electronic gadgets and for this purpose he does not have any other vacant shop or premises from where he can carry on the business. 4. The defendant/tenant had opposed the prayer by filing a written statement. The contention raised by the defendant/tenant has been denied. It is contended that he had been depositing the rent from time to time and as on date there is no arrears of rent whatsoever. It is further contended that as he is suffering from muscular disorder, therefore, is not in a position to run the medical shop but he has shifted his business to share market transactions as well as dealing in wholesale business, therefore, it is wrong to say that the shop has been closed for the last three years. It is further contended that as he is suffering from muscular disorder, therefore, is not in a position to run the medical shop but he has shifted his business to share market transactions as well as dealing in wholesale business, therefore, it is wrong to say that the shop has been closed for the last three years. The plaintiff/landlord is not in bona fide need of the shop for running an electronic shop but wants to get the shop vacated just to gain handsome amount by letting the shop by asking for deposit and increased rent. It is further contended that no other electronic shop is situated nearby the shop and the plaintiff/landlord owns about four shops where he can start the electronics shop and as such there is no bona fide requirement, therefore, the suit needs to be dismissed. 5. It is submitted that both the Courts below erred in coming to the conclusion that the plaintiff/landlord has established the bona fide needs with regard to the disputed shop that to without appreciating the evidence available on record. In such circumstances, it is submitted that the impugned judgment and decree passed by both the Courts below deserves to be set aside. 6. On the other hand the learned counsel appearing for the respondent/landlord has pointed out paras 9 to 15 of the appellate court judgment as well as the evidence of PW2 where he has stated in para13 that there is no electronic shop in the market. It is also an admitted fact that there is no separate market for electronics goods. He wants to open a electronics shop adjacent to the furniture shop. The DW1 in para 19 has accepted that besides the disputed shop, son of the plaintiff Gaurav Goyal is running a furniture shop and behind the shop the plaintiff is residing in a house. This clearly goes to show that the plaintiff has been able to establish the bonafied requirement and as such both the Courts below were right in coming to the conclusion. This clearly goes to show that the plaintiff has been able to establish the bonafied requirement and as such both the Courts below were right in coming to the conclusion. The learned counsel for the respondent/landlord has relied on the judgment of this Court, reported in Kailash Chandra Shankarlal Trivedi v. Punjab National Bank and others [ 2000(2) JLJ 379 =2000(3) MPLJ 343], wherein this Court after relying upon several judgments of the Supreme Court, has laid down the law that the sufficiency or suitability of an accommodation as an alternative to the one sought to be vacated is the choice of a landlord and the Court cannot substitute its own choice or view for the purpose of recording a finding that some accommodation available with landlord, though differently situated, in suitable or sufficient for the purpose of his need. 7. I have heard the learned counsel for the parties at length and have also perused the judgment of the trial Court as well as the appellate Court and having gone through the evidence available on record, specifically that of landlord PW1 and son of landlord PW2, It is apparent that a shop let out to the tenant is admesuring 18 feet in length and 10 feet in breath. It is also undisputed that adjacent to the suit shop, the son of the landlord Gaurav Goyal is running a furniture shop. Admittedly, if the partition is removed the landlord will have enough space to run the electronic shop and the same is suitable for the purpose of business. The appellant/tenant was not able to prove that any other alternative accommodation is available with the landlord/defendant. 8. In view of the aforesaid facts and circumstances and the analysis of the evidence on record, the findings recorded by both the Courts below can not be found fault with and have rightly decreed the suit. 9. The Supreme Court in the case of Meenal Eknath Shirsagar (Mrs.) v. Traders and Agencies and another [ (1996)5 SCC 353 ], has held that it is for the landlord to decide how he desires to beneficially enjoy his property and it is not for the Courts to dictate to him the manner in which he should enjoy or utilize his property. Similar view has been taken by this Court in Kailash Chandra Shankarlal Trivedi (supra). 10. Similar view has been taken by this Court in Kailash Chandra Shankarlal Trivedi (supra). 10. In the case of Akhileshwar Kumar and others v. Mustaqim and others [ (2003)1 SCC 462 ], the Supreme Court has held that once the bonafide requirement of a landlord is established, as in the present case wherein there is a concurrent finding of fact to that effect and which is not assailed by the appellant in the present appeal, then the choice of the accommodation which would by more suitable for his requirement has to be left to the subjective choice of the landlord and the Court cannot thrust its own choice upon him and while discussing the availability of other alternative accommodation has held as under in para 4 : “4. So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No.2. The suit was compromised and the shop was got vacated. The shop is meant for the business of plaintiff No.2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice upon the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodations which have prevailed with the High Court are either not available to the plaintiff No.1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No.2, who too is an educated unemployed, should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No.1, another educated unemployed brother, cannot be countenanced. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No.2, who too is an educated unemployed, should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No.1, another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the felt need of one of them.” 11. Similarly in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta [ (1999)6 SCC 222 ], wherein the landlord had other suitable accommodation available with him and on that ground the High Court had reversed the finding of the trial Court, the Supreme Court while setting aside the judgment of the High Court and affirming the choice of the landlord in respect of the accommodation held as under in para 13 : “13......Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited .for the purpose; the Court would not in such a case thrust its own wisdom upon the choice Of the landlord by holding that not one. but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.” 12. In view of the above pronouncement by the apex Court a conclusion can be drawn that mere availability of another accommodation with the landlord does not disqualify him from claiming eviction, therefore, no fault can be found with the findings of both the Courts below. 13. In the circumstances, no substantial question of law arises for consideration in the present appeal. 13. In the circumstances, no substantial question of law arises for consideration in the present appeal. As a consequence the appeal stands dismissed and the judgment and decree passed by the Courts below are hereby confirmed. 14. In the facts and circumstances of the case, there shall be no order as to cost.