Kasturchand Jain vs Laxmi Narayan Sharma
2021 Latest Caselaw 1295 MP

                            -( 1 )-            SA No. 167/2012
   Kasturchand Jain (since dead) through LRs Smt. Kamla Jain &
                               others
                                 vs.
                      Laxmi Narayan Sharma




             HIGH COURT OF MADHYA PRADESH
                   BENCH AT GWALIOR
                               (Single Bench)
                SECOND APPEAL NO. 167 OF 2012

Kasturchand Jain (since deceased) through
LRs Smt. Kamla Jain and others            ..... APPELLANTS
                             Versus

Laxmi Narayan Sharma                                  .....RESPONDENT

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CORAM

           Hon. Shri Justice Rajeev Kumar Shrivastava

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Appearance

       Shri Amit Lahoti, learned counsel for the appellants.
       Shri Sanjeev Mishra, Advocate for the respondent.
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Whether approved for Reporting :                     No

Reserved on            :      23/03/2021
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                             JUDGMENT

(Passed on 06th April, 2021)

This second appeal has been filed under Section 100 of CPC against the impugned judgment and decree dated 31.1.2012 passed by Additional Judge to Second Additional District Judge Basoda (Fast Track Court), District Vidisha, in First Appeal No.61A/2011, confirming and modifying

-( 2 )- SA No. 167/2012 Kasturchand Jain (since dead) through LRs Smt. Kamla Jain & others vs.

Laxmi Narayan Sharma

the judgment and decree dated 8.9.2010 passed by Civil Judge Class-1, Vidisha in Civil Suit No. 7A/2010.

2. This second appeal wad admitted for hearing vide order dated 21.10.2013 on the following substantial questions of law :-

"1. Whether, both the Courts below have committed an illegality having not granted the decree under Section 12(1)

(e) of the Accommodation Control Act while recording the finding which suffers from perversity of approach ?

2. Whether, the lower appellate Court has committed an illegality while setting aside the judgment and decree under Section 12 (1)(a) despite recording a positive finding with respect to non- entitlement of the defendant to get benefit under Section 12(3) of the Act ?"

2. The facts of the case in brief are that deceased plaintiff-Kasturchand Jain instituted a civil suit under Section 12(1)(a) and 12(1)(e) of the MP Accommodation Control Act, 1961 (for brevity, the 'Act') before the trial Court against the defendant-tenant Laxmi Narayan Sharma. At first floor of disputed house, defendant was given two rooms at the rent of Rs.550/- per month excluding electricity bill. The plaintiff's son wanted to live separately after his marriage and the plaintiff was having no other alternate suitable accommodation for that purpose, therefore the plaintiff required the disputed house. It is further pleaded that till September 2007 the defendant had paid the rent and electricity bills are due to him. The trial Court decreed the suit on the ground of Section 12(1)(a) of the Act but dismissed the suit under Section

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Laxmi Narayan Sharma

12(1)(e) of the Act. In first appeal, the lower appellate Court partly allowed the appeal and confirmed the finding of the trial Court on the ground under Section 12(1)(e) of the Act but set aside the judgment and decree passed by the trial Court under Section 12(1)

(a) of the Act.

3. Learned counsel for the appellant-plaintiff has submitted that both the courts below have committed an error of facts and law in not decreeing the suit on the ground of bonafide need. In the plaint, it was duly pleaded that except tenanted premises there was no other suitable and alternate accommodation for separate residence of the plaintiff's son along with his wife. The court cannot dictate as to how and in what manner the plaintiff has to reside in the suit house. It is for the plaintiff to decide and chose in what portion he has to live for the convenience of his family members. Despite admission of defendant in para 17, the lower appellate Court committed an error of law in not granting decree under Section 12(1)(a) of the Act. Hence, learned counsel for the appellants prays for allowing the present second appeal.

4. Per Contra, learned counsel for the respondent- defendant has opposed the second appeal and submitted that no error has been committed by lower appellate court, therefore, no interference is warranted by this Court and prayed to dismiss the second appeal.

5. Heard learned counsel for the parties and perused the record.

6. From perusal of the record of the present second

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Laxmi Narayan Sharma

appeal, it is apparent that the appellant has filed an application (IA No. 2454/2020) for bringing subsequent facts and documents on record, wherein it is mentioned that the appellants are landlord and respondent is tenant in the suit premises which is a residential accommodation. It is also mentioned in the application that recently the respondent has purchased a residential accommodation in Vidisha town which is a double-storied house, vide registered sale deed dated 30.7.2020 (Annexure 'A') and after execution of the aforesaid sale deed the respondent along with his family members has shifted his residence to the newly purchased house and the suit premises has been locked by him. Photographs of newly purchased house have been enclosed with the application. Since the respondent has already shifted his residence and just to harass the appellants did not evict the suit premises despite the fact that now there is no requirement for him and his family members of the suit premises, therefore, a suitable direction for respondent's eviction from the suit premises be given.

7. Learned counsel appearing on behalf of the respondent has at bar admitted the averments of the aforesaid application (IA No. 2454/2020) and prays that the appeal be disposed of accordingly.

8. Considering the aforesaid, IA No. 2454/2020 is hereby allowed and the subsequent facts and documents as mentioned above are taken on record.

9. It is undisputed that one Kasturchand/plaintiff, who died during pendency of appeal, was the landlord and Laxminarayan Sharma is the tenant. After death of Kasturchand,

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Laxmi Narayan Sharma

his legal representatives prosecuted the suit. The defendant had filed cross-objection which was considered and it was decided that the plaintiff had no bonafide need.

10. It is observed by Hon'ble Apex Court in Kedar Nath Agrawal (Dead) and another vs Dhanraji Devi (Dead) by Lrs. And another [(2004) 8 SCC 76], that "the basic rule is that rights of parties should be determined on the basis of date of institution of suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit or proceeding. This, however, does not mean that events happening after institution of the suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. The Court of Law may take into account subsequent events inter alia in the following circumstances:-

(i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or

(ii) it is necessary to take notice of subsequent events in order to shorten litigation; or

(iii) it is necessary to do so in order to do complete justice between the parties."

Further it is observed that by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. Moreover, a conjoint reading of Section 21(1)(a) and 21(7) of the Act makes it clear that where the possession is sought by the landlord on the ground of bona fide requirement and during the pendency of the application the landlord dies, his legal representatives can prosecute such application on the basis of their own need in substitution of the

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Laxmi Narayan Sharma

need of the deceased. In the present case, the situation is changed and bona fide requirement belongs to legal representatives of the deceased-plaintiff.

11. On the basis of pleadings of the parties and considering the evidence adduced the first appellate Court has committed an error of law and jurisdiction in not directing the eviction while the bonafide requirement has been properly proved. It is also relevant to mention here that as observed in Kedar Nath Agrawal (supra), the effect of subsequent event is also required to be considered during pendency of appeal. After death of the plaintiff Kasturchand, legal representatives came on record and first appellate Court was required to consider the bonafide need of the legal representatives. By considering the aforesaid fact along with the evidence adduced before the trial Court, the trial Court as well as first appellate Court committed error of law in not granting relief to the plaintiff by granting decree of eviction under Section 12(1)(e) of the Act.

12. In the light of the aforesaid subsequent development and submissions put forth by learned counsel for the appellants in the teeth of IA No. 2454/2020, which is not opposed by learned counsel appearing for the respondent, this appeal can be disposed of on the basis of the subsequent events and documents brought before this Court vide IA No. 2454/2020. Trial Court partly decreed the suit in favour of the plaintiff-landlord considering the ground under Section 12(1)(a) of the Act whereas first appellate Court partly allowed the appeal filed by the defendant-tenant setting aside the judgment and decree of the trial Court under

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Laxmi Narayan Sharma

Section 12(1)(a) of the Act.

13. As discussed above, during pendency of this appeal, respondent-tenant purchased another accommodation in the same city and shifted to it, thereby has already vacated the suit premises, therefore, considering the provisions under Section 12(1)(i) of the Act, this second appeal is allowed. The respondent-tenant is hereby directed to handover vacant possession of the suit premises to the appellant-landlord. The defendant is further directed to pay arrears of rent to the plaintiffs-landlord @ Rs.550/- per month due from August, 2005, along with mesne profit @ Rs.550/- per month till the suit premises is evicted and possession is handed over to the appellant-landlord.

14. Let a decree be drawn accordingly.

                                                                  (Rajeev Kumar Shrivastava)
(yog)                                                                      Judge.




                                 YOGESH
                                 VERMA
                                 2021.04.06
              VALSALA
              VASUDEVAN
              2018.10.26
              15:14:29 -07'00'
                                 16:19:00
                                 +05'30'