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2022 DIGILAW 726 (MP)

Shankarlal Thru. Lrs v. Chandraprakash

2022-05-06

PRANAY VERMA

body2022
JUDGMENT Pranay Verma, J. - This appeal under Section 100 of Civil Procedure Code has been preferred by appellants against judgment and decree dated 09/11/2021 passed in Civil appeal No.19/2021 by IInd additional District Judge, Mandsaur, District-Mandsaur affirming the judgment and decree dated 19/02/2021 passed in Civil Suit No.2400006/12 by Vth Civil Judge, Class-I, Mandsaur, District-Mandsaur whereby the claim of plaintiff/respondent for their eviction from the suit shop has been decreed on ground enumerated under Section 12 (1) (f) of M.P. accommodation Control act, 1961 (which shall be referred hereinafter as 'the act, 1961'). 2. The plaintiff instituted an action against defendant, since deceased now being represented through his legal representatives, the appellants for his eviction from the suit shop submitting that the same is bonafide required by him for commencing hand-loom business for his son Hemant Kumar, that he is not possessed of any other reasonably suitable alternate accommodation of his own in the town, that premises available adjoining the suit shop is extremely small and wholly unsuitable for business and is not owned solely by plaintiff, that he is carrying on business from a shop at Sadar Bazar and that the suit shop is only shop available for his son. 3. The defendant contested the plaintiff's claim by filing his written statement submitting inter-alia that the suit shop is not bonafide required by plaintiff for commencing business of his son Hemant Kumar, that the need as set-up by him is false, that towards east of the suit shop an alternate vacant accommodation is available with plaintiff which has been let-out by him only recently, that plaintiff has acquired several other accommodations during the relevant period hence the need pleaded by him is malafide. 4. Upon recording of evidence of the parties, both oral as well as documentary, the trial Court held that plaintiff has proved that this suit shop is bonafide required by him for commencing business for his son Hemant Kumar and that he is not possessed of any other reasonably suitable alternate accommodation of his own in the town. In consequence plaintiff's claim was decreed on ground under Section 12 (1) (f) of the act, 1961. The appeal preferred by appellants against the said judgment and decree has been dismissed by lower appellate Court by the impugned judgment and decree. 5. In consequence plaintiff's claim was decreed on ground under Section 12 (1) (f) of the act, 1961. The appeal preferred by appellants against the said judgment and decree has been dismissed by lower appellate Court by the impugned judgment and decree. 5. Learned senior counsel for the appellants submits that the Courts below have grossly erred in upholding the need as set-up by plaintiff and in not holding that he is possessed of numerous reasonably suitable alternate accommodations of his own and has let-out the same even subsequent to the period when the alleged need is stated to have arisen. The need is hence obviously false and fabricated and is only a pretext for evicting the defendant. From the cross examination of plaintiff himself it is apparent that the need is apparently made up. The finding of trial Court were specifically challenged in First appeal but lower appellate Court has failed to perform its duties as the last Court of facts while dismissing the appeal and has not decided the appeal as a First appeal. Reliance has been placed by him on the decisions of Hon'ble apex Court in Siddalingamma and another vs. Mamta Shenoy (2001) 8 SCC 561 , Hasmat ali and others vs. amina Bibi and others 2021 SCC Online SC 1142 and Malluru Mallappa (Dead) Through Legal Representatives vs. Kuruvathappa and others (2020) 4 SCC 313 . 6. I have heard learned counsel for the appellants and have perused the record. 7. as per the need pleaded by plaintiff in paragraph No.2 of the plaint, suit shop is boanfide required by him for commencing business of his son Hemant Kumar. The said fact has been affirmed by him as PW/1 and by his son Hemant Kumar as PW/2. Thus, from statements of these witnesses which have not been controverted in any manner by defendant, the need of plaintiff as pleaded by him has been proved. The need of plaintiff is contended by defendant not to be bonafide on the ground that at the relevant time when the need is said to have arisen and during pendency of the proceedings plaintiff has acquired and has re-let other alternate accommodations. If the need was actually genuine then he would have started business of his son from any of these accommodations. Heavy reliance has been placed upon the cross examination of plaintiff's witnesses. 8. If the need was actually genuine then he would have started business of his son from any of these accommodations. Heavy reliance has been placed upon the cross examination of plaintiff's witnesses. 8. In the plaint the plaintiff has pleaded that he is not possessed of any other reasonably suitable alternate accommodation of his own in the town and the suit shop which the defendant contended to be an alternate accommodation which is situated adjoining the suit shop is extremely small and unsuitable for the business. This fact has not been denied by defendant and it has not been proved that this shop would be an alternate suitable shop for plaintiff. 9. a perusal of cross examination of plaintiff as PW/1 as his son Hemant Kumar as PW/2 reveals that in the house where the suit shop is situated there are other shops also which are in occupation of different tenants. The tenants are stated to be changing from time to time. Nothing has been brought on record by defendant to show that these shops are suitable and equivalent to the suit shop for them to fall within the category of alternate accommodation. It is well settled that the alternate accommodation should be reasonably suitable and equivalent to the premises which are sought to be vacated. The availability of alternate accommodation is the domain of plaintiff and it is for him to adjudge where such accommodation is reasonable for him. 10. If the plaintiff felt that the adjoining shops are not reasonably suitable for commencement of business of his son Hemant Kumar then it was for him to decide suitability of the accommodations and the defendant cannot insist that any other particular shop would be suitable for him. If plaintiff acepted enhanced rent from the adjoining shops and re-let them then the same does not effect his need in any manner as these shops have not been proved to be reasonably suitable. It is not the case of defendant that any of the shops have been sold by the plaintiff at any point of time. Thus only for the reason that some of the adjoining shops have been got vacated from tenants and have been re-let would not effect the bonafide need of the plaintiff in any manner. 11. It is not the case of defendant that any of the shops have been sold by the plaintiff at any point of time. Thus only for the reason that some of the adjoining shops have been got vacated from tenants and have been re-let would not effect the bonafide need of the plaintiff in any manner. 11. a perusal of judgment passed by lower appellate Court shows that it has considered the contentions of the appellants and grounds raised by them in the appeal and upon consideration of the same has arrived at a finding that the judgment and decree passed by trial Court is in accordance with law. Thus it cannot be said that it has not exercised its jurisdiction as a First appellate Court. In such circumstances the judgments relied upon by learned senior counsel for the appellants do not help him in any manner. 12. Thus judgment and decree passed by Courts below are based upon the material available on record and findings recorded by them are based upon evidence. No substantial questions of law arises for determination in this appeal which is accordingly dismissed in limine.