Research › Search › Judgment

Madhya Pradesh High Court · body

2023 DIGILAW 668 (MP)

Malti Osle v. O. N. Thassu

2023-07-21

ARUN KUMAR SHARMA

body2023
JUDGMENT 1. The present appeal filed under section 96 of the Civil Procedure Code calling in question the judgment and decree dated 27.2.2019 passed by learned 2nd Additional District Judge to the 1st Additional District Judge, Bhopal in RCS No.485-A/2011 (O. N. Thassu (Dead) through LRS & Ors. v. Smt. Malti Osle), wherein the suit filed by one O.N. Thassu for eviction of appellant from the suit property suit property situated at E3/4C, Arera Colony Bhopal along with ground floor and rooms, which have been described in the plaint and also marked in the map. 2. The case of the original plaintiff O.N. Thassu was that the appellant/defendant be evicted from the suit premises and balance amount of rent amounting to Rs.86,124/- as well as rent from 19/09/2011 till eviction of the defendant/appellant at the rate of Rs. 3,953/- per month be granted with rate of interest @ 18%. 3. The undisputed facts of the case are that the suit house is owned by one Smt. Uma Devi Thassu, who was wife of Shyamlal Thassu, who died and thereafter, her legal representatives became owner of the suit property and O.N. Thassu original plaintiff was one of legal representative of Smt. Umadevi Thassu. The case of the plaintiff is that the suit premises is being rented out to the husband of appellant late Shri R.P. Osle and at the time of filing of the suit, rent of the suit premises was Rs.3,953/- per month and as per the terms and conditions of the rent deed, the rent was to be enhanced in every two years @ 10%. The defendant/appellant has not paid the rent amount since November, 2009, therefore, total amount of Rs.86,124/- is to be recovered. It is further pleaded that the suit premises is required bona-fidely for the brothers namely Satish Kumar Thassu, who is resided at Delhi and wants to shift at Bhopal. Similarly, another brother D.K. Thassu, , who is retired and staying at Ambah, District Morena, also wants to live at Bhopal. 4. The appellant / defendant has filed their counter by submitting that the original plaintiff Shri O.N. Thassu issued a legal notice on 13.4.2011 to appellant/defendant to vacate the suit premises and make payment of the due rent, however, the same has not been done. 4. The appellant / defendant has filed their counter by submitting that the original plaintiff Shri O.N. Thassu issued a legal notice on 13.4.2011 to appellant/defendant to vacate the suit premises and make payment of the due rent, however, the same has not been done. In her written statement, besides denying all the facts and grounds raised by the plaintiff and she has further contended that the suit premises is not required bona fidely and the same has also not sustainable as Satish Kumar Thassu is settled at Morena, therefore, he would not come up and stay at Bhopal. It has further contended that she has always deposited the rent amount on time but due to sudden death of her son in road accident, she could not deposit the rent for some time. However, later on, she has deposited the rent. The appellant/defendant has specifically pleaded that the suit property was originally owned by Smt. Uma Devi Thassu and after her death, suit is being filed by late Shri O.N. Thassu alone, therefore, the suit is not maintainable because he is not the absolute owner of the suit property. 5. Learned trial Court has framed as many as 11 issues, the parties have adduced their evidence and exhibited the documents. The trial Court after appreciating the evidence elaborately, was pleased to allow the suit and decreed the suit in favour of the plaintiffs/respondents by holding that the plaintiffs/respondents have made out a case under sections 12(1)(a), 12(1)(c) and 12(1) (e) of M.P. Accommodation Control Act, 1961 for eviction of appellant/defendant from the suit premises. The trial Court has further held that the appellant/defendant would pay the rent @ Rs.3,953/- per month till the eviction of the suit premises. 6. The appellant/defendant in her arguments repeated the contentions as narrated in the memo of appeal and greater emphasis has been made on the point that the appellant/defendant in her written statement submitted in detail that O.N. Thassu was not alone the owner of the suit property. The suit property was owned by one Uma Devi Thassu, therefore, the suit was not maintainable. The suit property was owned by one Uma Devi Thassu, therefore, the suit was not maintainable. Learned counsel for the appellant/defendant further submitted that on the basis of facts and circumstances of the case, learned Court below has erroneously considered the issue specially in respect of ownership of the suit property and besides that no issue was framed under Section 12(1)(c) of the M.P. Accommodation Control Act, 1961, therefore, the decree granted by the court below is bad in law, which deserves to be set aside. 7. Per contra, learned counsel for the plaintiffs/respondents has supported the impugned judgment and decree of the court below. 8. I have heard learned counsel for the parties and perused the records. 9. The trial Court in its para Nos. 17 to 51 has held in respect of tenant and landlord relationship, payment of rent and entitlement to receive the rent amount by the plaintiffs/respondents under Section 12(1) (a) of M.P. Accommodation Control Act, 1961. The trial Court has dealt the matter in detail and after elaborately appreciating the evidence adduced by parties came to the conclusion that O.N. Thassu is co-owner of the suit property, therefore, he is not entitled to file the suit for eviction is misconceived arguments. 10. It is trite law that it is not necessary for all the owners of the suit property to institute the suit together. The suit for eviction of the tenant can be filed by any of the owners. Nothing has bee brought on record to established that other owners of the suit property have raised any objection in this regard. The appellant/defendant in her written statement admitted that she was paying the rent of suit premises to original plaintiff O.N. Thassu till he was live, therefore, once there is an admission on land lord tenant relationship, it does not lies in the mouth of the appellant to take U-turn for questioning the ownership of the plaintiff O.N. Thassu, the trial Court has rightly decreed the suit in respect of section 12(1)(a) of M.P. Accommodation Control Act, 1961 and also held that original plaintiff O.N. Thassu had right to filed the said civil suit. 11. So far as the bona-fide requirement of the suit property, the plaintiff has adduced evidence and similarly, appellant/defendant has liberty to cross-examined the plaintiffs witnesses with regard to veracity of the original plaintiff O.N. Thassu. 11. So far as the bona-fide requirement of the suit property, the plaintiff has adduced evidence and similarly, appellant/defendant has liberty to cross-examined the plaintiffs witnesses with regard to veracity of the original plaintiff O.N. Thassu. The trial Court in detailed from para Nos. 52 to 65 has discussed this issue and held that the plaintiff is the master of the suit premises and he is in a better position to know how to use his property and no one has right to dictate him in this regard. 12. Hon’ble apex Court in catena of decisions has held that the plaintiff cannot be compelled to use the suit property in any other way. The appellant/defendant has failed to bring any evidence on record to show that the suit property is not required bona-fidely by the plaintiff; whereas the plaintiff/respondent has discharged his obligations and has lead cogent evidence to establish the bona fide need of the suit property. 13. It is trite law that once the bona-fide need established even if any alternate accommodation is available to the respondents / plaintiffs, it is settled law that the court cannot force to such a landlord to utilize alternate accommodation to satisfy their need. 14. The well settled law seen in the cases of Joginder Paul v. Naval Kishore Behal AIR 2002 SC 2256 , Yuduvendar Arya and another v. Mukesh Kumar Gupta AIR 2008 SC 773 and Kasmir Singh v. Harnam Singh and another AIR 2008 SC 1749 , wherein the apex Court has held that once the need is shown and has proved by the landlords, the right to utilize accommodation is available to the landlord and Courts cannot forced the landlord to use any accommodation other then the desired accommodation. The apex Court has held that once it is proved that the landlord is in bona-fide need of the premises, it is not for the courts to show that he should shift to other way. The apex Court has held that once it is proved that the landlord is in bona-fide need of the premises, it is not for the courts to show that he should shift to other way. The court cannot dictate to the landlord which accommodation he should use for his business and it is for the landlord himself to decide, the sufficiency or suitability of an accommodation as an alternative to the one sought to be vacated is the choice of a landlord and the court cannot substitute its own choice or view for the purpose of recording a finding that some accommodation available with the landlord, though differently situated is suitable or sufficient for the purpose of this need. 15. In the circumstances I do not find any perversity or illegality in the findings recorded by the trial Court. As the findings recorded by the Courts below are based on cogent appreciation of the evidence on record, this Court cannot go into the same and interfere. In view of the aforesaid, I do not find any merit in the appeal filed by the appellant, the same is dismissed. 16. Learned counsel for the appellant has fairly contended that if the Court is not inclined to allow the appeal, then the appellant be given six months time to vacate the premises in question. However, the prayer is vehemently opposed by learned counsel for the respondents. 17. Having heard learned counsel for the parties, it would be appropriate to grant two months time to the appellant / tenant to vacate the premises in question. Resultantly, the appellant / defendant is granted two months time to vacate the premises in question subject to the fact that she shall furnish an undertaking on affidavit before the Court below / Executing Court within a period of two weeks from today to the effect that she shall deposit all arrears of rent and continue deposit the current rent and she would not create any third party interest in respect of the premises in question and keep the premises in good condition and shall herself vacate the premises within two months on her own. If such an undertaking along with affidavit of the appellant is furnished within two weeks from today, the trial court will not proceed further. If such an undertaking along with affidavit of the appellant is furnished within two weeks from today, the trial court will not proceed further. However, failing which, the respondents as well as the trial court / Executing Court would be at liberty to immediately proceed for execution of the decree and for eviction of the appellant forth with and the Executing Court shall do the needful within a period of one month. It is also made clear that in case the appellant do not vacate the premises within two months from the date of furnishing an undertaking in this regard, the Court below /Executing Court shall forth with execute the decree within a period of one month and may take the help of the local police, in case if the local police is approached the police authorities are directed to immediately provide the police protection and all necessary logistic helps for eviction of the appellant. The appellant shall deposit the entire due amount and the rent up to date till the vacation of the premises. Needless to say that interim order, if any passed earlier, stands vacated. A copy of this judgment along with record be sent back to the trial court for information and its compliance.