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2016 DIGILAW 870 (MP)

Ramesh Chandra v. Gurubaksmal

2016-09-27

ANAND PATHAK

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JUDGMENT : Anand Pathak, J. The present appeal has been preferred by the appellant/plaintiff/landlord under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 21-02-2006 passed by the First Additional District Judge, Dabra District Gwalior in Civil Appeal No. 40-A/2005 whereby the judgment and decree dated 29-07-2005 passed by the Civil Judge Class-I, Dabra District Gwalior in Civil Suit No. 67-A/2012 has been reversed. 2. The appellant has filed the suit against the respondents/defendants/tenants under Section 12(1)(a), (b), (c) & (f) of the M.P. Accommodation Control Act, 1961 (for brevity 'the Act'). The respondents appeared before the trial Court and filed the written statement and contested the claim of the appellant. Issues were framed and the evidence was led by the parties. After considering the submissions and evidence of the parties, the trial Court decreed the suit of plaintiff under Sections 12(1)(a) and (c) of the Act and rejected the plea of the present appellants/landlord under Section 12(1)(b) and (f) of the Act. 3. The respondents/tenants have preferred the first appeal, challenging the judgment and decree passed by the trial Court whereby the decree of eviction has been drawn on the ground under Sections 12(1)(a) and (c) of the Act. The present appellant/landlord preferred the cross-objections under Order 41, Rule 22 of CPC. The appellate Court after considering the submissions/arguments of the parties have rejected the cross-objections preferred by the present appellant and allowed the appeal preferred by the respondents/ tenants and set aside the judgment and decree passed by the trial Court, therefore, the appellant/plaintiff has occasion to file this second appeal under Section 100 of CPC. 4. This Court vide order dated 13-11-2009 had admitted this appeal for final hearing on the following substantial questions of law: (a) Whether the Courts below have committed error in negativating the plaintiff's requirement of suit premises merely on the basis of absence of proof of funds & experience without considering the merit in respect of bona fide requirement and non-availability of alternative accommodation? (b) Whether the learned ADJ erred in law in reversing the judgment of trial Court in respect of Section 12(1) (a) of the M.P. Accommodation Control Act by wrongly placing burden of proving non-compliance of provisions of Section 13(1) of the Act ? (b) Whether the learned ADJ erred in law in reversing the judgment of trial Court in respect of Section 12(1) (a) of the M.P. Accommodation Control Act by wrongly placing burden of proving non-compliance of provisions of Section 13(1) of the Act ? (c) Whether the finding in respect of termination of tenancy can be reversed only on the basis of defendant's contentions without any proof ? Regarding substantial question of law No. (a) 5. This is a case of reversal of judgment and decree. The trial Court has decreed the suit on the ground enumerated under Sections 12(1)(a) and (c) of the Act which have been reversed by the first appellate Court. The cross-objections preferred by the appellant seeking decree of Sections 12(1)(b) and (f) of the Act were also rejected. Therefore, the substantial question of law No.(a) deals in respect of bona fide requirement of plaintiff/landlord. For Section 12(1)(f) of the Act, the trial Court has framed issue No.5(a)&(b) in respect of bona fide requirement of the plaintiff/landlord. The trial Court in para 34 of its judgment has dealt the issue of bona fide requirement and has rejected the plea of bona fide requirement of the plaintiff on the ground that neither the plaintiff has sufficient experience of business of electronic goods nor has capital to start the business, therefore, the bona fide requirement is not proved. Issue No.5(b) was not dealt by the trial Court which was in respect of availability of any alternative accommodation in the municipal limit of Dabra city. The trial Court has not dealt with the said issue No.5(b) as according to learned trial Judge, the said issue was not required to be dealt with in respect of his finding given in issue No. 5(a). 6. The appellate Court has dealt the issue from paras 21 to 24 of its judgment and has confirmed the finding given by the trial Court and came to the conclusion that neither the plaintiff has experience of running the shop of electronic goods nor has capital to start it, therefore, confirmed the findings of the trial Court. 7. 6. The appellate Court has dealt the issue from paras 21 to 24 of its judgment and has confirmed the finding given by the trial Court and came to the conclusion that neither the plaintiff has experience of running the shop of electronic goods nor has capital to start it, therefore, confirmed the findings of the trial Court. 7. The trial Court as well as appellate Court have dealt the issue in a slipshod manner and have not considered the fact that for establishing the bona fide requirement, the plaintiff has to plead and prove the requirement which he had successfully done from the pleadings as well as the evidence led in this regard. The plaintiff need not to show his experience of business to establish his bona fide need. In fact the defendant/tenant had to prove the fact that the plaintiff/landlord has no other accommodation for shop in the municipal limit Dabra but the defendant failed to do so and in absence of the same, the finding should have been recorded in favour of the plaintiff but the same has not been recorded and therefore, the finding given by the trial Court as well as appellate Court are perverse in nature. The Supreme Court in the matter of Raghunath G. Panhale (dead) by LRs. v. M/s Chaganlal Sundarji and Co., AIR 1999 SC 3864 has held that it is not necessary for the landlord to adduce evidence that he had money in deposit in a Bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property. Similarly in respect of experience in starting or running business is concerned it has also been opined by the Supreme Court that it is not necessary. Here, in the present case also, the landlord intends to start business of electronic goods which is not a business requires extraordinary experience or qualification. Once the bona fide requirement is proved, the details of the prospective business of the landlord need not to be explained and detailed out by the landlord. Therefore, on this count also the arguments of the appellant/tenant fails. 8. The Supreme Court in the matter of Shamshad Ahmad and others v. Tilak Raj Bajaj and others, (2008) 9 SCC 1 has held that the plaintiff/landlord need not to prove his experience/education to start the business. Therefore, on this count also the arguments of the appellant/tenant fails. 8. The Supreme Court in the matter of Shamshad Ahmad and others v. Tilak Raj Bajaj and others, (2008) 9 SCC 1 has held that the plaintiff/landlord need not to prove his experience/education to start the business. Even otherwise plaintiff need not to prove the availability of capital for running the business. Therefore, in light of above settled law, the trial Court as well as appellate Court have committed error in ignoring the plaintiff's requirement of suit premises merely on the basis of absence of proof of fund and experience without considering the merits in respect of bona fide requirement and non availability of alternative accommodation. The Court below should have decreed the suit in the light of pleadings and evidence led by the plaintiff. Similarly, burden to prove that plaintiff has alternative accommodation, was on the defendants which defendants have failed to discharge. {See: Baby Bai v. Smt. Kamla Bai, 2010 (III) MPWN 35 }. Therefore, trial Court erred in not dealing and deciding the issue No.5(b) in any manner, whereas it ought to had been decided in favour of plaintiff. Thus, the judgment and decree in respect of finding in relation to Section 12(1)(f) of the Act are hereby set aside. 9. The plaintiff is entitled to get the decree of eviction against the defendants/tenants in respect of Section 12(1)(f) of the Act. The Courts below have erred in passing the judgment and decree against the plaintiff/landlord in respect of Section 12(1)(f) of the Act, rejecting his pleadings and evidence. Substantial question of law No.(a) is answered accordingly. Regarding substantial question of law No.(b) 10. The trial Court has framed the issue in respect of Section 12(1)(a) of the Act (arrears of rent) as issue No.2 (a) and (b) and decreed the suit on the ground of Section 12(1)(a) of the Act. Paras 22 to 24 of trial Court's judgment dealt with in respect of Section 12(1)(a) of the Act and the appellate Court has reversed that finding in para 11 of its judgment. While dealing with the said aspect, the appellate Court has arrived to the conclusion and reversed the findings of the trial Court that plaintiff has not proved "Arrears of Rent", therefore, the trial Court has erred in coming to the conclusion regarding arrears of rent against the defendants/tenants. While dealing with the said aspect, the appellate Court has arrived to the conclusion and reversed the findings of the trial Court that plaintiff has not proved "Arrears of Rent", therefore, the trial Court has erred in coming to the conclusion regarding arrears of rent against the defendants/tenants. This finding is perverse for the simple reason that the rent has been paid, was the fact which was to be proved by the defendants/tenants and burden was on the defendants to discharge by leading the evidence that they have regularly paid the rent in accordance with the scheme of the Act. The finding of the appellate Court that it was for the plaintiff to prove that the defendants had not deposited the rent during the pendency of the appeal and this burden of proof had not been discharged is concerned, it may be noticed that this finding is also based on totally erroneous assumptions. Suffice is to say that the plaintiff could not be expected to prove the negative. {See: 2000 (2) MPLJ 445 , Rajesh Omprakash Goel v. Smt. Mullo and others}. 11. Here, in the present case, the defendants/tenants have failed to lead such evidence so as to establish their bona fide about the regular payment of rent as per the provisions of the Act. The burden was not on the plaintiff to prove that the defendants have not paid the rent between March, 1994 to September, 1995. Defendant No. 1 Gurbaksmal (DW-1) has categorically admitted in paras 29, 30 and 31 of his statements that he has not submitted any receipt in respect of payment of rent before the trial Court. Once the defendant himself in dilemma and negligent to submit the rent receipt so as to dispel the allegation of arrears of rent, no other conclusion can be drawn (except arrears of rent) against the defendants and in favour of plaintiff, establishing the allegation of arrears of the rent and therefore, the ground enumerated under Section 12(1)(a) of the Act is established and proved. Thus, the trial Court has rightly decreed the suit of plaintiff on the ground of Section 12(1)(a) of the Act which was wrongly rejected by the appellate Court. Thus, the trial Court has rightly decreed the suit of plaintiff on the ground of Section 12(1)(a) of the Act which was wrongly rejected by the appellate Court. Learned first appellate Court has erred in law in reversing the decree under Section 12(1)(a) of the Act by wrongly placing the burden of proof of non compliance of provisions of Section 13(1) of the Act over the plaintiff. The defendants could not able to prove that they regularly paid the rent, therefore, the trial Court has rightly decreed the suit under Section 12(1)(a) of the Act and the appellate Court has erred in law in reversing the decree in respect of Section 12(1)(a) of the Act. Thus, substantial question of law No.(b) is answered accordingly. Regarding substantial question of law No.(c) 12. The trial Court has framed issue No. 7 in respect of termination of tenancy and in para 36 of its judgment, the trial Court has come to the conclusion that tenancy was monthly in nature and the plaintiff has submitted the rent receipt (from Ex-P/1 to Ex-P/25) which established that the tenancy was monthly and not yearly, therefore, the notice dated 02-07-1994 (Ex-P/26) along with its postal receipt Ex-P/27 to P/29 clearly established that the tenancy was monthly and the plaintiff has sent the notice in accordance with law, therefore, the trial Court has rightly held that the tenancy is monthly in nature and the plaintiff has terminated the tenancy in accordance with law. The said issue was found to be proved by the trial Court. 13. The appellate Court has framed question No.6 in respect of termination of tenancy and in para 18 of its judgment has dealt the question. The appellate Court has set aside the finding given by the trial Court only on the basis of non submission of Rent Note. According to the appellate Court, the plaintiff has not submitted the rent note before the trial Court and could not lead the evidence in this regard, therefore, it cannot be concluded that the tenancy was monthly. According to the appellate Court, the fact that the rent was paid every month, cannot be a ground to conclude that the tenancy was monthly in nature. This is a case of perversity. According to the appellate Court, the fact that the rent was paid every month, cannot be a ground to conclude that the tenancy was monthly in nature. This is a case of perversity. Once the rent receipts have been submitted by the plaintiff/landlord from Ex-P/1 to Ex-P/25 and the notice in this regard has been sent by the plaintiff, duly received by the defendant/tenant, the trial Court has rightly came to the conclusion about termination of tenancy and the appellate Court has caused perversity in reversing the finding given by the trial Court. The plaintiff has rightly terminated the tenancy in accordance with law and therefore entitled to get a decree of eviction against the respondents/tenants. The appellate Court without setting aside the finding given by the trial Court has reversed the judgment and has caused illegality and perversity. Thus, substantial question of law No.(c) is answered accordingly. 14. Therefore, in conclusion the appellant/landlord has sufficiently proved his bona fide requirement under Section 12(1)(f) of the Act. Similarly, the appellant/landlord is entitled for the decree against the respondents/tenants under Section 12(1) (a) of the Act for arrears of the rent and the appellant/landlord has terminated the tenancy against the tenants in accordance with law and therefore, entitled for the decree under Section 12(1)(a) and (f) of the Act against the tenants. 15. Resultantly, the respondents/tenants are directed to handover the vacant possession of the suit property (shop) to the appellant/plaintiff. The respondents/tenants are directed to deposit arrears of rent of Rs. 2700/- and mesne profits @ Rs. 250/- per month from the date of institution of suit till handing over of vacant possession of the suit shop to the appellant/landlord. Cost of the litigation be awarded to the appellant after due certification. Decree be drawn accordingly. Appeal of the appellant/plaintiff is allowed.