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2019 DIGILAW 188 (MP)

Sushil v. Bhagwandas

2019-02-28

S.C.SHARMA

body2019
JUDGMENT : S.C. Sharma, J. 1. The present First Appeal is arising out of the judgment dated 10/1/2012 passed by the 16th Additional District Judge, Fast Track, Indore in Civil Suit No. 30A/2009 by which the suit for eviction filed by respondent Bhagwandas, under section 12(1)(a), (c) & (f) of the M.P. Accommodation Control Act, 1961, has been decreed. 2. Facts of the case reveal that plaintiff Bhagwandas is the landlord and the defendant Sushil and Manohar are tenant in respect of House No. 18/1 (a shop), area 10' x 32'. The shop was given on rent under written agreement dated 1/12/1998 on monthly rent of Rs. 3800/-. The rent agreement also included that after 11 months there shall be an increase by 5% towards the rent. As per the plaint averment the defendants paid rent w.e.f. 1/12/1998 to 31/10/1999 @ Rs. 3800/- per month and thereafter w.e.f. 1/11/1999 to 30/9/2000 @ Rs. 3990/- and every year it was accordingly increased. The rent was paid w.e.f. 1/9/2001 to 31/10/2005 @ 4180/-, however, the 5% enhancement was not included and subsequently as there was a default in increasing the rent by 5% of the total rent, it was stated by the plaintiff that upto 30/11/2004 the difference amount comes to Rs. 22,055/-. For the period w.e.f. 1/12/2004 to 31/1/2005 the difference amount was Rs. 1826/- and for the period w.e.f. 1/2/2005 to 30/4/2005 the difference amount which was not paid was Rs. 5093/- and for the period w.e.f. 1/5/2005 to 31/7/2005 the difference amount on account of enhancement which was not paid was Rs. 16042/-. It was also stated in the plaint that as and when a demand made by the plaintiff for payment of amount, the defendants used to abuse the plaintiff and, therefore, a notice was served to the defendants through registered post dated 26/7/2005 and even after receiving the notice, the amount was not paid. As the amount was not paid, the plaintiff landlord filed a Civil Suit claiming arrears of rent to the tune of Rs. 1,84,829.00. 3. A Written Statement was filed and the defendant denied the landlord - tenant relationship, there was a categorical denial in respect of the rent agreement and it was stated that the owner of the shop is one Hothchand Vasudev s/o. Parmanand. 1,84,829.00. 3. A Written Statement was filed and the defendant denied the landlord - tenant relationship, there was a categorical denial in respect of the rent agreement and it was stated that the owner of the shop is one Hothchand Vasudev s/o. Parmanand. Thus, there was a categorical denial on the part of the respondent in respect of the title of the plaintiff. 4. Various Issues were framed by the trial Court and the first Issue was in respect of the rent note executed between the parties. Ex. P/1 is the rent note available on record and the defendant himself in his cross examination has admitted before the trial Court that he is a tenant of the plaintiff Bhagwandas. He has also admitted that right from day one he is accepting the plaintiff as his landlord and the shop was rented out to him by Bhagwandas, the plaintiff. Thus, he took somersault while giving statement before the trial Court. He has also admitted the reply Ex. P/7 which was given pursuant to the legal Notice. The shop in question was purchased by the plaintiff on 23/10/1986 through a registered sale deed Ex. P/12 and thereafter it was rented out on 1/12/1998 to the defendant. The factum of ownership and the landlord tenant relationship was also established. The defendant was not able to establish that he has paid rent as and when demanded from time to time. On the contrary, based upon the statement of the witnesses & the various rent receipts, the trial Court has arrived at a conclusion that the plaintiff is entitled for arrears of rent (difference of rent). It was also established that inspite of there being a notice to the defendant to clear the dues, the dues were not cleared. On the contrary, the defendant went to the extent in denying the title of the landlord in the written statement. 5. The trial Court, based upon the aforesaid facts, has arrived at a conclusion that the plaintiff is entitled for a decree of eviction, as denial of title of the landlord was established by the defendant, the trial Court, keeping in view the judgments delivered in the case of Radheshyam v. Mansharam reported in 1992 (1) MPWN 174 and in the case of Bharosilal v. Kishorilal reported in 1992 (1) MPWN 77 , has decreed the suit. 6. 6. This Court in the case of Mahendra Kumar Jain v. Smt. Usha Jain reported in 1997 (1) MPWN 158 has held that a landlord is entitled for a decree of eviction in case it is established that the tenant has abused the landlord and is in a habit of abusing the landlord. It has also been held that decree under section 12(1)(c) can be granted in those circumstances. 7. The apex Court in the case of Majati Subbarao v. P.V.K. Krishna Rao reported in (1989 (2) R.C.R. (Rent) 498 : AIR 1989 SC 2187 ) was dealing with a case where again the title of the landlord was denied. The apex Court in the aforesaid case in paragraph 5 has held as under: 5. It was argued by learned counsel for the appellant that even accepting that there was a denial of title by the appellant and the result would be only that the respondent-landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forfeiture would have to precede the suit or petition for eviction. It was submitted by him that it was not open to a landlord to take advantage of a denial of title by the tenant in the very proceedings for eviction in the course of which the denial was made. The denial must be anterior to the eviction proceedings. In support of this argument learned counsel placed reliance on the decision in Maharaja of Jeypore v. Rukmani Pattamahdevi, (1919) 46 I.A. 109; AIR 1919 P.C. 1 . In our view, this argument also does not stand scrutiny. In V. Dhanapal Chettiar v. Yesodai Arnrnal, 1979 (2) R.C.R. (Rent) 352 : [1980] 1 SCR 334 a Constitution Bench of this Court comprising seven-learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act. The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts. The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts. Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means 'a person continuing in possession after the termination of the tenancy in his favour'. Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by necessary implication these enactments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee. The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determination of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfillment of the conditions laid down in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy. In the case before us, we find that the denial of landlord's title by the tenant has been expressly made a ground for eviction under section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected. We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlord's title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See: Sada Ram and Others v. Gajjan Shiama, 1970 (0) R.C.R. (Rent) 127 : AIR 1970 Punjab & Haryana 511; Shiv Parshad v. Smt. Shila Rani, 1973 (0) R.C.R. (Rent) 548 : AIR 1974 H.P. 22 and Machavaram Venkata Narayana Rao v. Sarvepalli Narayana Rao Sarada and another, [1978] 1 R.C.J. 368. As observed by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of his character as a tenant in the written statement. 8. In the light of the aforesaid judgment, as the title was denied by the defendant, this Court is of the considered opinion that the trial Court has rightly passed a decree of eviction. 9. In the case of Kashi Bai v. Dashrath reported in 1995 (II) MPWN 269, again the title of the landlord was disclaimed in the Written Statement and it has been held in the aforesaid case that the landlord is entitled for decree of eviction. 10. In the present case, the title was denied and, therefore, in the light of the judgment delivered in the case of Kashibai (supra), the trial Court was justified in passing the impugned judgment and decree. 11. 10. In the present case, the title was denied and, therefore, in the light of the judgment delivered in the case of Kashibai (supra), the trial Court was justified in passing the impugned judgment and decree. 11. A similar view has been taken by the Division Bench of this Court in the case of Balveersingh v. Kishanlal reported in 1988 (2) R.C.R. (Rent) 504 : 1988 JLJ 693 , as in the present case there is a decree on the ground of non-payment of rent/arrears of rent and the same has been established, the judgment and decree passed by the trial Court does not warrant any interference, in the light of the judgment delivered in the case of Bhagwati Prasad v. Rameshchand and others reported in 1994 (2) R.C.R. (Rent) 265 : 1994 MPLJ 619 . 12. In the present case, during the pendency of the trial, a ground was added i.e., bona-fide need, as provide under section 12(1)(f) and decree has been passed on the ground of bona-fide need also. Such an amendment is also permissible. 13. The Full Bench of this Court in the case of Chhotelal v. Akbarali and another reported in (1983 (1) R.C.R. (Rent) 505 : AIR 1983 MP 50 ), in paragraph 6 has held as under: 6. It was, however, urged on behalf of the defendant by Shri Waghmare that the language of Section 12(1) of the Act rules out induction of additional ground for eviction after the institution of a suit for eviction. The contention cannot be upheld. Section 12(1) of the Act merely provides that no suit shall be filed for eviction except on a ground specified in that section. This restriction on the right to institute a suit for eviction only emphasises that if a suit for eviction were to be brought without disclosing a ground specified in Section 12(1) of the Act, then in that case, the plaint would be liable to be rejected for failure to disclose cause of action. There is nothing in the language of Section 12(1) of the Act, which forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of Section 12(1) of the Act. There is nothing in the language of Section 12(1) of the Act, which forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of Section 12(1) of the Act. It may be, that in some cases, the requirement of a particular ground specified in Section 12(1) of the Act is such as cannot be fulfilled unless that ground has come into existence prior to the filing of the suit, as in the case of a ground specified in Section 12(1)(d). But tenability of a ground sought to be added by way of amendment, does not affect the jurisdiction of a Court to permit that amendment. It may be that in such a case, it would be a sound exercise of discretion by the court, if leave to amend is refused inasmuch as a decree for eviction cannot be passed on such a ground. But as already observed, this aspect of the matter has no impact on the question of jurisdiction of the Court to permit the plaintiff to amend the plaint by adding a new ground for eviction. Any observation to the contrary which can be read in 1961 MPLJ 7 (supra) or 1980 MPLJ 182 (supra) does not, in our opinion lay down correct law. 14. Keeping in view the aforesaid, the learned Court below was justified in passing the impugned judgment and decree on the ground of bona-fide need also. 15. A ground has been raised in the present case that it was a composite suit and no such decree could have been passed. The apex Court in the case of Smt. Sulochana v. Rajendra Singh reported in (2008 (2) R.C.R. (Rent) 3 : AIR 2008 SC 2611 ) has dealt with a similar issue. Paragraph 16 and 36 of the aforesaid judgment reads as under: 16. Chapter III-A provides for special provisions. It is confined to eviction of tenants on grounds of bona fide requirement of different classes of landlords specified therein. A summary procedure is provided for. Recourse thereto can be taken only by the specified landlord within the meaning of the provision of Section 23-J of the Act which means a 'landlord who is a widow or divorced wife' amongst others. Amongst others a servant of any Government including a member of defence services, would also fall within the purview of the said definition. Recourse thereto can be taken only by the specified landlord within the meaning of the provision of Section 23-J of the Act which means a 'landlord who is a widow or divorced wife' amongst others. Amongst others a servant of any Government including a member of defence services, would also fall within the purview of the said definition. Only a landlord who comes within the purview of the said definition is entitled to file suit on the ground of his or her bona fide requirement. 36. The definition of 'specified landlord' as contained in Section 23-J of the Act is not as broad as the definition of the same term as contained in Section 2(b) thereof. A statute must be read, keeping in view the constitutional scheme of equality as adumbrated in Article 14 of the Constitution of India. Once a special benefit has been conferred on a special category of landlord, the same must receive strict construction. Even otherwise, it is well settled, that an exclusion provision must be construed strictly. A statute ousting jurisdiction of the civil court should also be strictly construed. 16. The composite suit could have been very well filed as held by the apex Court. 17. In the present case, the bona-fide need has been established by the plaintiff before the trial Court and, therefore, once the bona-fide need has been established, no case for interference is made out in the matter keeping in view the judgment delivered by the Division Bench in the case of Shivprakash Agrawal v. Ashok Kumar Patel reported in 2010 (I) MPWN 30 . 18. Thus, in short, the plaintiff was successful in establishing his claim. He was successful in establishing his bona-fide need, he was successful in establishing the title, he was successful in establishing that the defendants have not paid rent and difference of rent and, therefore, the findings of fact arrived at by the trial Court does not warrant any interference. The findings arrived at by the trial Court are not at all perverse. On the contrary, they are duly supported by the evidence on record. This Court does not find any reason to interfere with the impugned judgment and decree passed by the trial Court. Accordingly, the present appeal fails and is hereby dismissed. A decree be drawn up accordingly.