Ajay Kumar Jai vs Hujefa @ Sarver Abbas
2021 Latest Caselaw 428 MP

                             -( 1 )-             SA No. 2806/2019
         Ajay Kumar Jain and another vs. Hujefa and Another




             HIGH COURT OF MADHYA PRADESH
                   BENCH AT GWALIOR
                               (Single Bench)
               SECOND APPEAL NO. 2806 OF 2019

Ajay Kumar Jain and Another                         ..... APPELLANTS
                                    Versus

Hujefa and Another                                .....RESPONDENTS

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CORAM

           Hon. Shri Justice Rajeev Kumar Shrivastava

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Appearance

     Shri Rajendra Jain, learned counsel for the appellants.
     Shri N.K.Gupta, learned senior counsel with Shri Ravi
Gupta, Advocate for the respondents.
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Whether approved for Reporting :                     No

Reserved on            :      25/02/2021
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                             JUDGMENT

(Passed on 3rd March, 2021)

This second appeal has been filed under Section 100 of CPC against the impugned judgment and decree dated 30.08.2018 passed by Fifth Additional District Judge, Guna in Civil Appeal No.103A/2016, which was filed challenging the judgment and decree dated 16.9.2016 passed by Third Additional Judge, Guna to the Court of First Civil Judge Class-2, Guna in Civil Suit No. 104A/2009.

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2. The facts of the case in brief are that the plaintiffs/ respondents owned and possessed the disputed house as per map annexed with the plaint, which was let out to defendants/ appellants as per rent deed dated 1.3.1997. The defendants-tenant have not paid the rent from May 2009 onwards. The disputed house is in dilapidated condition and there was apprehension of unhappening, therefore, the defendant-tenants were requested to vacate the disputed house but thereafter the defendants-tenant did not vacate the disputed house. The disputed house was needed to the plaintiffs/landlord for running their business and for which a notice was served upon the defendants-tenant by the plaintiffs- landlord through their counsel for terminating the tenancy w.e.f. 30.6.2009 and handing over the vacant possession of the disputed property. Therefore, cause of action accrued to the plaintiffs on 30.6.2009. The written statement was filed by the defendants- tenant and the averments pleaded in the plaint were denied.

3. On the basis of aforesaid pleadings of the parties issues were framed and trial Court after hearing the parties and appreciating the evidence available on record, granted the decree in favour of plaintiffs-landlord under Section 12(1)(f) of the Act and thereafter First Appellate Court has passed the decree in favour of the plaintiffs-landlord under Section 12(1)(f) as well as under Section 12(1)(a) of the Act. Hence, this second appeal by the defendants-tenant.

4. It is an admitted fact that the disputed house of plaintiffs is as per the map annexed with the plaint which was rented out to the defendants as per rent deed dated 1.3.1997. It is apparent from the memo of present second appeal that the appeal has been preferred challenging the decree only under Section

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12(1)(f) of the Act.

5. Section 12(1)(a) and 12(1)(f) of the Act runs as under :-

"12(1)(a) - That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner;

                        (b) xxx            xxx         xxx
                        (c) xxx            xxx         xxx
                        (d) xxx            xxx         xxx
                        (e) xxx            xxx         xxx
                        (f)   That the accommodation let for

non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommo- dation of his own in his occupation in the city or town concerned."

6. Sub-section (1) of Section 12 of the Act provides that the landlord shall not be entitled to recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of standard rent together with permitted increases and observes and performs the other conditions of the tenancy insofar as they are consistent with the provisions of the Act. The Act creates a restriction on the landlord's right to the recovery of possession. Ordinarily, the landlord will have a right to recover possession from the tenant when the tenancy has been determined.

7. Though the Legislature has provided several grounds to seek eviction of a tenant, however one ground is held sufficient

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to evict the defendant-tenant, if made out on facts and in conformity with the requirement of ground contained under Section 12(1). It is not necessary for the landlord to establish existence of each and every ground though taken in the plaint. See, Naresh Chandra v. Vinod Kumar [2003 (3) MPHT 104].

8. In Hansraj v Gomti [1996 JLJ 357] it has been observed that when the tenant denied title of landlord and claimed title in himself and suit converted into a title suit and plaintiff's suit is decreed finally then in execution defendant is not entitled to raise a plea that the decree cannot be executed for not being under Section 12 of the Act.

9. On perusal of record, it is apparent that the trial Court has partially decreed the suit holding as under :-

¼v½ oknhx.k uxjikfydk ds pcwrjs ij fufeZr fookfnr nqdku ds laca/k esa fdlh izdkj dh dksbZ lgk;rk izkIr djus ds vf/kdkjh ugha gSA ¼c½ oknhx.k vius Hkou esa fLFkr fookfnr LFkku] tks okni= ds lkFk layXu uD'ks esa yky jax dh js[kkvksa ls n'kkZ;k gS ftlds vuqlkj LFkku [email protected] x 11 [email protected] ,oa [email protected] x [email protected] Hkkx dk fjDr vkf/kiR; fu.kZ; fnukad ls nks ekg dh vof/k i'pkr~ izkIr djus ds vf/kdkjh gS ,oa izfroknhx.k mDr LFkku dk dCtk nks ekg dh vof/k mijkar oknhx.k dks lkSaisaxsaA ¼l½ oknhx.k mDr fookfnr LFkku dk fjDr vkf/kiR; izkIr djus ds mijkar fookfnr LFkku dk ;FkklaHko 'kh?kzrk ls fuekZ.k djsxsa ,oa izfroknhx.k dks fdjk;sukesa dh 'krZ vuqlkj fookfnr LFkku ds cjkcj {ks=Qy ¼ftlesa dqN deh is'kh ,d ;k nks oxZfQV gks ldrh gS½ dk mi;qDr LFkku izfroknhx.k dks HkkM+s ij nsxsa ,oa mDr uofufeZr iznRr LFkku ds laca/k esa LFkku dh fLFkfr yksdfyVh ds vuqlkj oknhx.k uohu fdjk;k jkf'k fu;ekuqlkj fu/kkZfjr dj izkIr djus ds vf/kdkjh gksxsaA ¼n½ izfroknhx.k dks fookfnr LFkku ds cjkcj dk LFkku iqu% iznku djus dk vkns'k fn;k x;k gS vr% izFkd ls vf/kfu;e dh /kkjk&12 ¼6½ ds vuqlkj izfrdj ds laca/k esa dksbZ vkns'k ugha fn;k tk jgk gSA

10. Thereafter, First Appellate Court has passed the impugned judgment and decree as under :-

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foospuk ,oa fu"d"kZ ds vk/kkj ij ;g Li"V gS fd fo}ku fopkj.k U;k;ky; }kjk ikfjr iz'uxr fu.kZ; o fMdzh fnukafdr 16-09-2016 fof/k ,oa rF;ksa ds vuq:i ugha gksus ls [email protected] dh vksj ls izLrqr vihy vkf'kad :i ls Lohdkj dh tkdj v/khuLFk U;k;ky; }kjk ikfjr fu.kZ; o fMdzh vikLr dh xbZA e0iz0 LFkku fu;a=.k vf/kfu;e 1961 dh /kkjk 12 dh mi/kkjk ¼1½ ds [k.M ¼,Q½ ds vk/kkj ij mi/kkjk ¼6½ ds mica/k dks n`f"Vxr j[krs gq, fuEukuqlkj fMdzh iznku dh xbZ %& 1- izfroknhx.k okn i= ds lkFk layXu ekufp= esa yky js[kkvksa ls iznf'kZr oknxzLr LFkku nqdku o dejk [email protected] x [email protected] ,oa [email protected] x [email protected] oxZQhV Hkkx dk 02 ekl ds volku i'pkr~ fjDr vkf/kiR; oknhx.k dks lkSaisA 2- oknhx.k 02 ekl dh dkykof/k dk volku gksus ds iwoZ oknxzLr LFkku ds okf"kZd ekud HkkM+s dh jde ds nqxus ds cjkcj jkf'k izfrdj Lo:i izfroknhx.k dks vnk djsaA 3- izfroknhx.k oknxzLr LFkku dk fjDr vkf/kiR; lkSais tkus dh fnukad rd dk oknhx.k dks vo'ks"k HkkM+k vnk djsa rFkk ;fn muds }kjk HkkM+s dk lank; U;k;ky; esa dj fn;k x;k gS rks og lek;kstuh; gksxkA

11. As mentioned above, present second appeal has been basically preferred against the decree passed under Section 12(1)

(f) of the Act, despite the fact that the First Appellate Court has decreed the suit of the plaintiffs considering both the grounds under Sections 12(1)(a) and 12(1)(f) of the Act. Furthermore, in the present case it is an admitted fact that the defendants are the tenants as per rent deed dated 1.3.1997, therefore, defendant/ appellant Ajay Kumar Jain cannot challenge the ownership of the house in dispute. Furthermore, the subjective choice exercised in a reasonable manner by the landlord should normally be respected by the Court. Where the need for additional accommodation is proved, the Court is not to dictate the landlord to continue in the same premises. The Rent Control Legislation is not designed to penalize the owner by disabling him from occupying own

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property when bonafidely required. It is also settled law that the Courts are not to substitute their own view with regard to the need of the landlord. The reasonable view is required to be taken that if the landlord is in genuine need then the Courts should not superimpose its own view with a view to determine the reasonable need of the landlord. Only genuineness of the need is to be seen and this need is not a static need. It varies from time to time person to person. The appellant-tenant remained defaulter in submission of rent with the plaintiff-landlord. The plaintiff's case of bona fide need is proved before the trial Court as well as First Appellate Court. It is up to the landlord to decide how and in what manner he should live and is the best judge of his residential requirement. The aforesaid legal right if based on genuine need, that should be honored.

12. In second appeal under Section 100 of CPC, the scope of exercise of the jurisdiction by the High Court is limited to the substantial question of law. Substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of parties before the Court. Existence of a substantial question of law is sine-qua- non for the exercise of jurisdiction under the provisions of Section 100 of CPC. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.

13. Further, the Hon'ble Apex Court in Karnataka Board of Wakf Vs. Anjuman-EIsmail Madris-un- Niswan, (AIR 1999 SC 3067) has observed that the

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High Court should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts.

14. In view of the foregoing discussion, this Court is of the considered view that since there is a concurrent finding of both the Courts below with regard to the decree under Section 12(1)(f), therefore, considering the facts and circumstances of the case as well as the concurrent finding, I find no substantial question of law involved in the present second appeal. Consequently, present second appeal is hereby dismissed being devoid of merits.

                                                        (Rajeev Kumar Shrivastava)
(yog)                                                            Judge.




                                     YOGESH VERMA
                                     2021.03.03
                  VALSALA
                  VASUDEVAN
                  2018.10.26
                  15:14:29 -07'00'
                                     12:44:57 +05'30'