JUDGMENT 1. Appellant/plaintiff filed this second appeal under section 100 of CPC against the judgment and decree dated 30.4.2009 passed by Second Additional District Judge, Vidisha in Civil Appeal No. 9-A/2008 affirming the judgment and decree dated 16.10.2007 passed by First Additional Civil Judge, Class-I, Vidisha in Civil Suit No. 197-A/2007. 2. Briefly stated facts of the case are that appellant/plaintiff (represented through LR) instituted a suit for eviction and arrears of rent on the grounds available under section 12 (1) of the M. P. Accommodation Control Act, 1961 (for short "Act of 1961") against the defendant/respondent/tenant on the allegations that plaintiff is owner and possessor of a house situate at Chandrashekhar Marg, Ward No. 30, Vidisha and the defendant is his tenant in four rooms at ground floor on monthly rent of Rs. 250/-. It is alleged that defendant does not pay rent on time and not paid rent due against him since 1.4.2004 in spite of making demand and has paid rent up to 30.11.2004 after service of notice but did not pay the entire arrears of rent. 3. It is further alleged in the plaint that defendant constructed a house on a plot owned and possessed by him, situate at Sagar Road, opposite Chungi Naka, Vidisha and started restaurant in half of the area of the building and in remaining half of the portion, instead of using it for his residence, inducted a tenant, namely, Chandu. Despite notice, defendant did not vacate the tenanted accommodation, therefore, suit has been preferred. The allegations were apparently in respect of grounds available under section 12 (1) (a) and (i) of the Act of 1961. 4. After notice, defendant appeared and filed written statement. In written statement, defendant denied the allegations so far as arrears of rent are concerned. Defendant however accepted in para 4 of the written statement that defendant owns a house and constructed it 10 years back on Sagar Road but it is for commercial purpose. He submits that he has constructed house in which restaurant/hotel and STD PCO are being run. Allegation regarding induction of tenant was denied. It was submitted that since the plot owned by defendant is over road which comes under commercial use, therefore, he is running the business of hotel/PCO. 5. After pleadings, trial Court framed as many as seven issues and evidence was led. Allegation regarding induction of tenant was denied. It was submitted that since the plot owned by defendant is over road which comes under commercial use, therefore, he is running the business of hotel/PCO. 5. After pleadings, trial Court framed as many as seven issues and evidence was led. Appellant led the evidence of himself as PW-1 and Brajendra Jain as PW-2; whereas, defendant examined himself as DW-1, Chandrashekhar Dubey as DW-2 and Ramshiya Pandey as DW-3. Documentary evidence on behalf of appellant vide Exhibits P/1 to P/4 and on behalf of defendant vide Exs. D/1 to D/13 were exhibited. Trial Court, after considering the evidence and rival submissions, came to the conclusion that plaintiff could not establish the fact that the house owned by defendant is befitting for residential purpose, therefore, plaintiff did not prove his case on section 12 (1) (i) of the Act of 1961 and since the arrear of rent has been paid in the Court, therefore, sufficient compliance has been made. Resultantly, suit filed by the plaintiff/appellant was dismissed by the trial Court. 6. Plaintiff preferred first appeal under section 96 of CPC but met the same fate. Appellate Court put the onus over the plaintiff while not proving the factum of suitability of accommodation owned by defendant for residential purpose. After dismissal of first appeal, plaintiff preferred the instant appeal. 7. In the instant appeal, appellant has raised the grounds as reiterated earlier and moved an application under Order XLI rule 27 of CPC vide I. A. No. 11386/2010 in which he placed certain documents of ownership of defendant (received under Right to Information Act, 2005) showing that house owned and possessed by the defendant is partly residential and partly commercial. Some of the documents are electricity bills of defendant in which tariff category of electric connection is referred as residential. Appellant also placed sale deed indicating that sellers of the property were earlier living over the said plot, therefore, land use is residential. He referred the sale deed dated 22.10.1999 and 22.6.1999. Similarly, certain photographs have also been filed by the appellant/plaintiff to indicate that land is residential as well as commercial and some photographs were also filed to indicate the fact that defendant has sublet the premises to somebody else in the tenanted premises. 8. He referred the sale deed dated 22.10.1999 and 22.6.1999. Similarly, certain photographs have also been filed by the appellant/plaintiff to indicate that land is residential as well as commercial and some photographs were also filed to indicate the fact that defendant has sublet the premises to somebody else in the tenanted premises. 8. One application under Order VI Rule 17 CPC vide I. A. No. 11378/2010 has also been preferred by appellant/plaintiff in which the appellant wanted to incorporate the pleadings regarding sub-letting of the tenanted premises and tried to raise the ground as contained in section 12 (1) (b) of the Act of 1961. 9. It is the submission of counsel appearing for appellant that plaintiff is owner and possessor of the house as referred in the plaint and defendant is his tenant. Once, the defence has constructed a house on a plot owned and possessed by him in the same city and when he has alternative accommodation befitting for residence then he ought to have shifted to that place but instead of shifting, he tried to project the case that the plot in question which he purchased is of commercial use and therefore, it is not suitable for residential purpose. Once the plea of alternative accommodation has been accepted by the defendant in his written statement then it was the duty of the defendant to prove that accommodation is not suitable for his residential purpose because burden of prove lies over him. He did not discharge the burden. It is further submitted by learned counsel for the appellant that trial Court as well as appellate Court caused illegality and perversity while passing the impugned judgment because both the Courts have accepted the fact and evidence that defendant purchased an alternative accommodation, however, dismissed the suit on the ground that plaintiff did not prove the fact that defendant has suitable accommodation at Sagar Road, Vidisha. The said shifting of onus is arbitrary and illegal because it was for the defendant to discharge the burden. 10. Through various paragraphs of judgment of trial Court as well as appellate Court, counsel for the appellant submits that it was a case of evidence falling under section 12 (1) (i) of the Act of 1961 because the scope of section 12 (1) (i) is wide enough. 10. Through various paragraphs of judgment of trial Court as well as appellate Court, counsel for the appellant submits that it was a case of evidence falling under section 12 (1) (i) of the Act of 1961 because the scope of section 12 (1) (i) is wide enough. Defendant did not submit any document in support of his submission to bring home the fact that he is not the owner of the suit property or that the said property is not suitable for residence. He relied upon the decision of Hon'ble apex Court as well as this Court in the matter of Ganpat Ram Sharma and Ors. v. Gayatri Devi, AIR 1987 SC 2016 and Shankarlal and Anr. v. Onkarlal, AIR 1992 MP 111 . 11. Nobody appeared for respondent/tenant. Since, the matter is pending since year 2009 and appeal stood admitted on 26.7.2010, therefore, appeal is heard and record perused. 12. Vide Order dated 26.7.2010, this Court has admitted the appeal on following substantial question of law: "Whether suit for eviction on ground 12 (1) (i) of M. P. Accommodation Control Act could have been legally dismissed without specific finding that the accommodation acquired by the defendant/appellant is not suitable for his residence?" 13. From the perusal of pleadings and evidence and the substantial question of law so framed, it appears that the case mainly revolves around the suitability of accommodation owned/acquired by the defendant/tenant 10 years back. 14. In the plaint, plaintiff has specifically pleaded about the suitable alternative accommodation with the pleadings that defendant placed one Chandu in half of the portion of the building owned and possessed by defendant. In the written statement, defendant accepted the fact that around 10 years back, he purchased the plot and constructed the house for commercial purpose in which he is running hotel and restaurant. Defendant accepted the acquisition and possession of the plot/house, therefore, once the acquisition of the house has been accepted by the defendant then entire burden is over defendant/tenant to prove whether it was a residential house or non-residential house. In entire written statement, defendant has nowhere pleaded that the property is a shop but pleaded it to be a house. Even defendant in para 21 of his statement accepted that he has a house, which is sufficient to infer that he acquired or built the house. In entire written statement, defendant has nowhere pleaded that the property is a shop but pleaded it to be a house. Even defendant in para 21 of his statement accepted that he has a house, which is sufficient to infer that he acquired or built the house. He also accepted the fact that he did not produce the sale deed of the house to show that house is for commercial use. 15. Similarly, defendant in paras 6 and 7 of his statement admitted acquisition/possession of the house, therefore, it can be inferred that a house was constructed by defendant. Now, it was the burden of the tenant to prove suitability of the accommodation and tenant/defendant failed to prove the suitability of the accommodation by placing relevant documents in support of his submissions. If a tenant builds a new premises of his own, it must be assumed that he looked into all the factors to suit his requirement in the premises. Hon'ble apex Court in the case of Ganpat Ram Sharma (supra) has held in para 21 as under: "Before we discuss the other aspect, the result of the several decisions to which reference has been made above, indicate that the position in law is that the landlord in Order to be entitled to evict the tenant must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence. It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts. The other aspect is that apart from the question of limitation, to which we shall briefly refer, is that the landlord must be quick in taking his action after the accrual of the cause of action, and if by his inaction the tenant allows the premises to go out of his hands then it is the landlord who is to be blamed and not the tenant. In the light of these, we have now to examine whether the suit in the instant case was barred by the lapse of time. But quite apart from the suit being barred by lapse of time, this is a beneficial legislation, beneficial to both the landlord and the tenant. It protects the tenant against unreasonable eviction and exorbitant rent. It also ensures certain limited rights to the landlord to recover possession on stated contingencies." 16. Judgments rendered by Hon'ble apex Court as well as this Court in the case of Smt. Mohini Badhwar v. Raghunandan Saran Ashok Saran, (1989) 3 SCC 72 , Sh. Dewan Chand Bhalla v. Dr. Ashok Kumar Bhoil, (1994) 5 SCC 445 , Anand Rao v. Indumati, 1973 RCJ SN 23 and P. M. Poother v. Devasia Chacko, 1980 (2) RCJ 759 are worth consideration in this regard. 17. Since the tenant/defendant has withheld his evidence, therefore, adverse inference can be drawn against him in light of section 114 (g) of the Indian Evidence Act because Keshri Singh Raghuvanshi (DW-1) in para 21 of his statement has admitted that he did not produce the sale deed of the house and he has not assigned any reasons for such omission. Documents regarding nature of house, whether it is residential or commercial, were in possession of the defendant and he was the only person who could have produced the same but he tried to escape on the touchstone of "suitability" and he did not produce those documents. Resultantly, adverse inference ought to have been drawn against him. Trial Court as well as first appellate Court erred in not drawing adverse inference against him. Judgment rendered by apex Court in the case of Gopal Krishnaji Ketkar v. Mahomed Haji Latif & Ors., AIR 1968 SC 1413 is worth consideration in this regard wherein the apex Court had held in para 5 as under: "..........Even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof......." (emphasis supplied). 18. Here if the defendant/tenant would have produced the sale deed and other relevant documents, which are tried to be produced by the plaintiff/appellant now through the application under Order XLI Rule 27 of CPC (obviously he obtained later on under Right to Information Act), then the mist would have been cleared about the suitability of accommodation, but by not producing it, he attracted adverse inference. 19. When both the parties, i.e., plaintiff and defendant come before the Court with the respective pleadings, they are equally liable to prove their case pleaded in the pleadings and if evidence is being led by both the parties, then in such circumstances, question of burden of proof loses its significance. See: Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors. and Arumugham and Ors. v. Sundarambel & Anr., AIR 1960 SC 100 and (1999) 4 SCC 350 are worth consideration in this regard because even if the controversy is seen from this angle then also defendant had to prove the pleadings regarding unsuitability of accommodation for residential purpose which he purchased, if he wanted to wriggle out of the ambit of section 12 (1) (i) of the Act of 1961. In absence thereof, section 12 (1) (i) of the Act of 1961 would be a source of travesty of justice and no landlord would be able to get his tenanted premises evicted from a tenant because suitability is a very subjective term and once the tenant has accepted the existence of alternative accommodation owned and possessed by him, then it is his duty to prove that the said accommodation is not suitable for residence. Tenant cannot be given premium for his own omission. 20. Regarding applications under Order XLI Rule 27 CPC and Order VI rule 17 CPC. 21. Two applications have been preferred by the appellant. One is for taking documents and evidence on record and another is for amendment in the pleadings raising the pleas of sub-letting under section 12 (1) (b) of the Act of 1961. 22. 20. Regarding applications under Order XLI Rule 27 CPC and Order VI rule 17 CPC. 21. Two applications have been preferred by the appellant. One is for taking documents and evidence on record and another is for amendment in the pleadings raising the pleas of sub-letting under section 12 (1) (b) of the Act of 1961. 22. So far as application under Order XLI rule 27 CPC is concerned, it is imperative for the appellant to show the due diligence. In absence of due diligence, application under Order XLI rule 27 cannot be accepted. Here the appellant/plaintiff has placed the documents received by him under Right to Information Act, 2005 but they are being filed at a belated stage and since this Court has already decided the controversy on legal question in which the present documents have no material bearing, therefore, acceptance of application and thereafter following the consequential follow up action under Order XLI rule 28 CPC would give a fresh lease of litigation for some more years or decades, which would not be in the interest of justice. Accordingly, I. A. No. 11386/2010 is hereby rejected. 23. Similarly, application under Order VI rule 17 CPC does not evoke confidence and credence for accepting the proposed amendments. Although the plaintiff has narrated the fact in the application that defendant has let out the tenanted premised to one Narendra Raghuvanshi and left possession of suit house 4-5 months ago. Application filed on 30.6.2010, therefore, he intends to incorporate the amendment in the plaint but this is not an appropriate stage for incorporation of such pleadings. Plaintiff is always at liberty to raise such grounds in independent proceedings. 24. Resultantly I. A. No. 11378/2010 filed under Order VI Rule 17 CPC is also rejected. 25. In the considered opinion of this Court, on the basis of discussion made above, appellant/plaintiff proved his case and trial Court as well as first appellate Court caused grave error of law in not appreciating the evidence as well as legal position and erred in not decreeing the suit for eviction preferred by the appellant/plaintiff under section 12 (1) (i) of the Act of 1961 and thereby caused illegality. The substantial question of law is answered accordingly in favour of plaintiff/appellant and it is held that trial Court as well as appellate Court erred in law while dismissing the suit as well as first appeal. The substantial question of law is answered accordingly in favour of plaintiff/appellant and it is held that trial Court as well as appellate Court erred in law while dismissing the suit as well as first appeal. They ought to have decreed the suit. Without any cogent reasons, Courts below rejected the suit and wrongly placed the burden of proof over the plaintiff regarding suitability of alternative accommodation acquired/possessed by the tenant. 26. Resultantly, appeal stands allowed and judgment and decree passed by the Courts below are hereby set aside and suit of the plaintiff filed under section 12 (1) (i) of the Act of 1961 is hereby decreed. Tenant/defendant required to evict the premises accordingly. Decree be framed accordingly. 27. Appeal stands allowed and disposed of.