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2019 DIGILAW 295 (CHH)

HEERA LAL v. PRAFUL JAISWAL

2019-02-11

SANJAY K.AGRAWAL

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JUDGMENT : Sanjay K. Agrawal, J. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the defendant is as under:- "1. Whether in view of the fact that the suit house was let out for residential purposes, the respondent was entitled to get the suit house vacated on the composite need of non-residential cum residential purposes ? 2. Whether in view of the pleadings of the respondents that they wanted the suit house for reconstruction, the suit u/s 12 (1) (g) of M.P. Accommodation Control Act Act could be decreed ? 3. Whether the court below could have passed the impugned judgment and decree u/s 12 (1) (h) of the M.P. Accommodation Control Act without satisfying the provisions of section 18 of the M.P. Accommodation Control Act ? 4. Whether the respondent was also required to plead and prove that he had no alternative accommodation suitable for the purpose for which he was seeking eviction ? " [For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court]. 2. The plaintiffs filed a suit for eviction against the defendant from the suit accommodation stating inter-alia that they are landlords and the defendant is their tenant on a monthly rent of Rs. 14/-. The suit house is situated in Nazul Sheet No.47 D of Plot No.130/1 area 1121 sq.mt. at Kamthi Line, Rajnandgaon. It is their case that the tenant had not paid rent for ten years and encroached upon part of government land and made construction therein. The suit accommodation is also in dilapidated condition and become unsafe for human living and they wanted to repair it, which cannot be done without vacating the suit accommodation and the suit accommodation is required bona fide for the plaintiffs residential as well as non-residential purposes. It was further pleaded that the suit accommodation was let-out for residential purpose, however, the defendant is using the same for non-residential purpose, as such, the defendant is liable to be vacated from the suit premises and accordingly, decree be granted their favour. 3. It was further pleaded that the suit accommodation was let-out for residential purpose, however, the defendant is using the same for non-residential purpose, as such, the defendant is liable to be vacated from the suit premises and accordingly, decree be granted their favour. 3. The defendant filed his written statement stating inter-alia that the defendant is washerman by occupation and from day one he is using the suit accommodation for residential as well as nonresidential purpose, as such, the plaintiffs are not entitled for decree for eviction and the suit be dismissed with costs. 4. The trial Court after appreciating oral and documentary evidence available on record by its judgment and decree dated 13.3.1995 came to the specific conclusion that the plaintiffs are entitled for decree under Section 12 (1) (a) of the M.P. Accommodation Control Act, 1961 (hereinafter called as "the Act of 1961") as well as under Sections 12 (1) (e) (f) and 12 (1) (g) of the Act of 1961 and granted decree in favour of the plaintiffs. The First Appellate Court partly interfered with the said finding and held that the plaintiffs are entitled for decree under Section 12 (1) (e) (f) (g) (h) of the Act of 1961 and set aside the decree granted under Section 12 (1) (a) of the Act of 1961, against which, this second appeal under Section 100 of the CPC has been preferred by the defendant, in which substantial questions of law have been framed and set-out in the opening paragraph of this judgment. 5. Mr. Harshal Chouhan, learned counsel for the appellants/defendant, would submit that both the Courts below ought to have granted right of re-entry under Section 18 (3) of the Act of 1961 after granting a decree under Section 12 (1) (g) and (h) of the Act of 1961. He would further submit that the suit accommodation let-out for residential purpose could not have been directed to be vacated for the composite need of residential and non-residential purpose, as such, the second appeal deserves to be allowed and the judgment and decree passed by both the Courts below deserve to be set aside. 6. None appeared for the respondents, though served. 7. I have heard learned counsel for the appellants/defendant, perused the impugned judgment and decree and records of the Courts below with utmost circumspection. 8. 6. None appeared for the respondents, though served. 7. I have heard learned counsel for the appellants/defendant, perused the impugned judgment and decree and records of the Courts below with utmost circumspection. 8. Before proceeding to consider the substantial questions of law so framed, it would be appropriate to mention here that by order dated 5.12.2018, this Court granted application under Order 41 Rule 27 of the CPC filed by the appellants/defendant and remitted the matter to the First Appellate Court to enable the parties to lead evidence, but the appellants/defendant did not appear and failed to lead any evidence on the said application within the stipulated time. 9. The suit accommodation is a house situated in Nazul Sheet No.47 D of Plot No.130/1 area 1121 sq.mt. at Kamthi Line, Rajnandgaon, which was let-out to the defendant for residential purpose, but since the defendant is washerman by occupation, he started work of laundry in the suit accommodation apart from living in the said accommodation. Relationship of landlord and tenant is not in dispute. Both the Courts below have granted decree under Sections 12 (1) (e) (f) and 12 (1) (g) (h) of the Act of 1961. 10. For the sake of convenience, I am taking substantial questions of law No.2 and 3 first. Answer to substantial question of law Nos.2 and 3:- 11. The question is whether both the Courts below are justified in granting decree under Section 12 (1) (g) (h) of the Act of 1961 without granting right of re-entry under Section 18 (1) of the Act of 1961. The concurrent finding recorded by two Courts below that the suit accommodation has become unsafe looking to the age and dilapidated condition of the building and that requires substantial repairing which cannot be done without vacating the suit accommodation, is a finding of fact based on evidence available on record. I do not find any perversity in the said finding so far as the decree granted under Section 12 (1) (g) (h) of the Act of 1961 is concerned. I do not find any perversity in the said finding so far as the decree granted under Section 12 (1) (g) (h) of the Act of 1961 is concerned. However, on the question of right of re-entry provided under Section 18 (3) of the Act of 1961, the trial Court has clearly recorded a finding that since the suit has also been decreed on the ground of bona fide need of the plaintiffs under Section 12 (1) mainly (e) of the Act of 1961, therefore, benefit of Section 18 of the Act of 1961 cannot be extended. Legal position is well settled in this regard. 12. The Supreme Court in the matter of Radhey Shyam and others v. Kalyan Mal, (1985) AIR SC 139 hile dealing with identical fact situation held that where the order of eviction is based really and substantially only under Section 12 (1) (f) of the Act, that is on the ground of bona fide requirement of landlord, the fact that Section 12 (1) (h), which envisages eviction of tenant on the ground of effecting either repairs or alterations is also mentioned in the order, does not make the order of eviction purely one under Section 12 (1) (h). Consequently, Section 18 will not be attracted and it would not be obligatory on the part of landlord to provide accommodation of equal extent to the tenant in the new building constructed by him. This statement of law is squarely attracted to the facts of the present case, as in the instant case, apart from decree under Section 12 (1) (h) decree under Section 12 (1) (e) has also been granted, as such, decree granted by the Courts below is legal and proper. Answer to substantial questions of law Nos. 1 and 3:- 13. It is true that the plaintiffs were required to plead and prove that they do not have any alternative suitable accommodation in their possession for their bona fide need in Rajnandgaon town. However, the defendant in his written statement has not taken any specific plea in this regard except saying that the plaintiffs have several accommodations in the township of Rajnandgaon for their bonafide need. However, the defendant in his written statement has not taken any specific plea in this regard except saying that the plaintiffs have several accommodations in the township of Rajnandgaon for their bonafide need. Thus, in absence of specific pleading and evidence in this regard about nonexistence of alternative accommodation in the plaint, the plaintiffs cannot be non-suited due to inartistic drafting, as such, the defendant has failed to prove and establish that the plaintiffs have suitable alternative accommodation in the township of Rajnandgaon for their bona fide need. 14. Now, the first substantial question of law No.1 is whether in view of the fact that the suit house was let out for residential purposes, the plaintiffs were entitled to get the suit house vacated on the composite need of non-residential cum residential purposes. In this regard, the Supreme Court in the matter of Smt. Nai Bahu v. Lala Ramnarayan and others, (1978) AIR SC 22 has held that there is nothing in the Act to bar an eviction from a building if a residential accommodation is genuinely required not only for residential use but also a portion of it bona fide for non-residential use. Para 21 of the report states as under:- "21. There is nothing in the M.P. Act to bar an eviction from a building if a non-residential accommodation is genuinely required not only for non-residential use but also a portion of it bona fide for personal residence. We are clearly of opinion that the compromise decree in this case is a lawful decree of eviction founded on permissible statutory ground and there is sufficient materials to show that the trial Court applied its mind and was satisfied that a valid decree under the M.P. Act could be passed." 15. Similarly, in the matter of Jagitkumar v. Jagdeeshchandra, (1982) AIR M.P. 144, the Madhya Pradesh High Court held as under:- "9. It is thus clear that even though it is established that a landlord requires a part of an accommodation let out and that requirement is for the purpose for which the accommodation was let out, a landlord becomes entitled to seek eviction from the entire accommodation, provided the other conditions specified in cl. (e) or (f) of S. 12(1) of the Act are satisfied." 16. (e) or (f) of S. 12(1) of the Act are satisfied." 16. Reverting to the facts of the present case in the light of judgment of the Supreme Court in Smt. Nai Bahu (supra) and judgment of the Madhya Pradesh High Court in Jagitkumar (supra), it is quite vivid that the plaintiffs have averred and proved that they were in requirement of the suit accommodation for their bona fide need of their sons-Praful, Pradeep, Praveen and daughter Madhuri and it is admitted position that the plaintiffs are owners of the suit accommodation, as such, merely because they averred that the suit accommodation is also required for nonresidential purpose, it would not create a bar for granting a decree for eviction of the appellants/defendant under Section 12 (1) (e) of the Act of 1961 when the respondents/plaintiffs have averred and proved the bona fide requirement of their sons and daughter as contemplated under Section 12 (1) (e) of the Act of 1961 for residential purpose mainly. Thus, the Courts below have rightly granted decree under Section 12 (1) (e) (f) of the Act of 1961. Both the substantial questions of law are answered against the defendant and in favour of the plaintiffs. 17. Accordingly, the second appeal being devoid of merit is liable to be and is hereby dismissed leaving the parties to bear their own costs. 18. A decree be drawn up accordingly.