Madhya Pradesh High Court

Abdul Khalik S/O A. Latif ... vs Ashfaq Hussain on 20 April, 2022

Author: Pranay Verma

                                 1

        IN THE HIGH COURT OF MADHYA PRADESH
                           AT INDORE
                            BEFORE
            HON'BLE SHRI JUSTICE PRANAY VERMA

                     ON THE 1st OF APRIL, 2022

                 SECOND APPEAL No. 320 of 2022

     Between:-
     ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
     SMT. ANEESHA BEE W/O A. KHALIK , AGED ABOUT 62 YEARS,
1.
     OCCUPATION: HOUSEWIFE R/O 558 TIN GALI MHOW (MADHYA
     PRADESH)
     ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
     ALTAF S/O LATE SHRI ABDUL KHALIK , AGED ABOUT 38
2.
     YEARS, OCCUPATION: BUSINESS 558 TIN GALI MHOW
     (MADHYA PRADESH)
     ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
     SMT. MUBINA W/O A. KAYYUM , AGED ABOUT 44 YEARS,
3.
     OCCUPATION: HOUSEWIFE SAAT RASTA MHOW (MADHYA
     PRADESH)
     ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
     SMT. JENAB W/O MOH. MUJAFFAR , AGED ABOUT 34 YEARS,
4.
     OCCUPATION: HOUSEWIFE JAIN MANDIR MARG MHOW
     (MADHYA PRADESH)
     ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS. KU.
     URUSHA D/O LATE SHRI A. KHALIK , AGED ABOUT 23 YEARS,
5.
     OCCUPATION: STUDENT 558 TIN GALI MHOW (MADHYA
     PRADESH)
     ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
     SMT. JANNAT W/O MOH. UMAR , AGED ABOUT 32 YEARS,
6.
     OCCUPATION: HOUSEWIFE RAM RAHIM COLONY RAU
     (MADHYA PRADESH)
     ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
     SMT. RUBINA W/O MOH. IRFAN , AGED ABOUT 35 YEARS,
7.
     OCCUPATION: HOUSEWIFE KAYSTHA MOHALLA (MADHYA
     PRADESH)
     ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS. A.
8.   MALIK S/O A. LATIF , AGED ABOUT 61 YEARS, OCCUPATION:
     BUSINESS 64, PLOWDONE ROAD (MADHYA PRADESH)
9.   ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
                                  2

      MOHD. ASLAM S/O A. LATIF , AGED ABOUT 57 YEARS,
      OCCUPATION: BUSINESS 1445, KAYSHTA MOHALLA (MADHYA
      PRADESH)
      ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
      MOH. AKRAM S/O A. LATIF , AGED ABOUT 52 YEARS,
10.
      OCCUPATION: BUSINESS 1445, KAYSHTA MOHALLA (MADHYA
      PRADESH)
      ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
      MOH. HAMID S/O A. LATIF , AGED ABOUT 48 YEARS,
11.
      OCCUPATION: BUSINESS 1445, KAYSHTA MOHALLA (MADHYA
      PRADESH)
12.   ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS. A.
      RASID S/O A. RAHIM , AGED ABOUT 46 YEARS, OCCUPATION:
      BUSINESS 1445, KAYSHTA MOHALLA (MADHYA PRADESH)
      ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
      SMT. BISMILLA BEE W/O MOH. ISMILA , AGED ABOUT 62
13.
      YEARS, OCCUPATION: HOUSEWIFE SANGHI STREET MHOW
      (MADHYA PRADESH)
      ABDUL KHALIK S/O A. LATIF (DECEASED) THROUGH LRS.
      SMT. BILKIS W/O A. RAJIK , AGED ABOUT 59 YEARS,
14.
      OCCUPATION: HOUSEWIFE HUMMAL MOHALLA MHOW
      (MADHYA PRADESH)
                                               .....APPELLANTS
      (BY SHRI A.S. GARG, SENIOR ADVOCATE WITH MS. POORVA
      MAHAJAIN, ADVOCATE)

      AND

      ASHFAQ HUSSAIN S/O INAYAT HUSSAIN HAIDRI , AGED
      ABOUT 48 YEARS, OCCUPATION: BUSINESS MAIN STREET
      MHOW AT PRESENT BUNGLOW NO. 64 PLAUDAN ROAD
      (MADHYA PRADESH)
                                              .....RESPONDENTS
      (BY SHRI A.K. SETHI, SENIOR ADVOCATE WITH SHRI POURUSH
      RANKA AND SHRI MOHAN SHARMA (CAVEATOR), ADVOCATES)



                             ORDER

1. This appeal under Section 100 of Civil Procedure Code has been preferred by defendants/appellants against judgment and

decree dated 22/12/2021 passed in regular Civil Appeal No.7/2019 by II Additional District Judge, Dr. Ambedkar Nagar, District-Indore arising out of judgment and decree dated 30/01/2019 by I Civil Judge, Class-I, Dr. Ambedkar Nagar, District-Indore decreeing the claim of plaintiff/respondent under Section 12 (1) (f) of M.P. Accommodation Control Act, 1961 (which shall be referred hereinafter as "the Act, 1961").

2. The plaintiff had initiated an action against defendants for their eviction from the suit premises on ground inter-alia under Section 12 (1)(f) of the Act, 1961. He submitted that he is the owner and landlord of the suit premises and defendants are his tenant therein at Rs.500/- per month, that the suit premises are bonafide required by him for commencing industrial business safety equipment, that he is carrying on the said business at Indore from a rented premises which he could be made to vacate at any time, that the suit premises are surrounded by industrial area hence his business will do better from Mhow, that his mother is aged 65 years hence he can look after her better at home and that he is not possessed of any other reasonably suitable alternative accommodation of his own in the town.

3. The defendants contested the plaintiff's claim by filing their written statement submitting inter-alia that the suit premises are not bonafide required by plaintiff for his business, the suit has been filed for increasing rent, that plaintiff and his family members had earlier instituted an action for eviction of defendants

on ground of bonafide need of plaintiff which had been dismissed hence the present suit is barred by doctrine of res judicata, that Indore is a bigger residential area as compared to Mhow hence it cannot be believed that plaintiff would leave Indore and start his business at Mhow, that plaintiff is possessed of numerous alternative accommodations of his own in the town and that he has constructed many shops and has let-out the same to the different tenants hence his need is not genuine.

4. The trial Court after evaluation of entire oral as well as documentary evidence adduced by the parties held that plaintiff has proved that the suit premises are bonafide required by him for commencing his business and that he is not possessed of any other reasonably suitable alternative accommodation of his own in the town. The said judgment and decree has been affirmed by the lower appellate Court by the impugned judgment and decree by which an application under Order 41 Rule 27 of CPC filed by defendants for taking additional documents on record has also been rejected.

5. Learned senior counsel for the appellants submits that plaintiff has totally failed to prove the need as set-up by him. The need as pleaded by plaintiff in itself is a need in future and is not a need in presenti. He has himself pleaded that the suit shop may be required by him for his business but has not pleaded that the same is in fact required by him at present. The family members of plaintiff alongwith him had earlier also instituted an action for

eviction of defendants from the suit premises on ground of bonfide need of plaintiff for commencing business from the suit premises which had been dismissed negativing his need hence the present suit is barred by doctrine of res judicata. During pendency of suit plaintiff had acquired various new shops and had sold the same or let-out the same to different tenants hence his need is not genuine. The plaintiff has been carrying business at Indore comfortably for last 22 years and no effort has ever been made by him for starting his business at Mhow hence his need is apparently made up. During pendency of appeal the defendants had filed an application under Order 41 Rule 27 of CPC for taking on record additional documents to demonstrate sale of shops by plaintiff at Indore which application has been illegally rejected by lower Appellate Court which has also failed to decide the appeal as a final Court of fact. Reliance has been placed on the decision of Hon'ble Apex Court in the matter of Hasmat Rai vs. Raghunath Prasad 1981 JLJ 716, Madhukar and others vs. Sangram and other AIR 2001 SC 2171 and Sukh Dutt Ratra and another vs. State of Himachal Pradesh and others 2022 (2) SCC 9.

6. I have heard learned counsel for the appellants and have perused the record.

7. The need which has been pleaded by plaintiff is for starting permanent business of industrial safety equipment from Mhow stating that he is carrying on his business from a rented shop at

Indore possession of which he could be liable to hand over to its landlord at any time. It is further pleaded that suit premises is in the main market at Mhow and is in a commercial area and his factory is near Pithampura hence is most suitable for him. It has also been pleaded that 65 years old mother of plaintiff is also required to be taken care by him while carrying on his business hence it would be most convenient for him to reside alongwith his family on the first floor above the suit premises. On perusal of need as pleaded by plaintiff there can be no doubt that the same is a need in presenti and is not a need in future. It is a need subsisting as of now and is not a need which may arise in the future. Plaintiff has categorically stated that he wants to start his business from the suit premises as he could be made to vacate his rented shop from where he is currently doing his business. If plaintiff is carrying on business from a rented premises, it cannot be said that his need is not a need in presenti but is a need in future. The plaintiff can be made to vacate his rented premises by its landlord at any time, even as on date of filing of the suit or today. The contention of appellants that need pleaded is a need in future and is merely a felt need hence is not acceptable.

8. Earlier suit which had been instituted by plaintiff alongwith his family members for eviction of defendants from the suit premises was for bonafide need of plaintiff to commence business of hardware, iron etc. whereas the present suit has been filed by plaintiff on ground of his bonafide need for commencing business

of industrial safety equipment. Both the needs are totally different in nature. The need which had been negatived in earlier suit when compared to the need as pleaded in the present suit was totally different and it is that need which had been negatived. The need presently set-up was not the subject matter of consideration in the previous suit. It is well settled that doctrine of res judicata would not be applicable in a landlord tenant matter in case the need pleaded in the earlier suit and subsequent suit are different. Thus the present suit for bonafide need of plaintiff as pleaded by him is not barred by the doctrine of res judicata.

9. As per Section 12(1)(f) of the Act, 1961 alternative accommodation available with plaintiff should be in the same town. Admittedly Mhow is a cantonment area where the suit premises is situated whereas plaintiff is carrying on business presently at Indore. Mhow and Indore are different towns hence alternate accommodation available with plaintiff to negative his need should be available with him in the same town i.e. Mhow. The properties acquired by plaintiff and sold during pendency of proceedings or even earlier to that at Indore would thus wholly be excluded from consideration while deciding the question of availability of alternate accommodation The shops which defendants allege plaintiff acquired and sold and / or let prior to and during pendency of proceedings hence are to be excluded altogether.

10. There is no material adduced by defendants to prove that

plaintiff is possessed of any reasonably suitable alternate and vacant accommodation of his own in Mhow town. The accommodations at Indore cannot be considered. The application under Order 41 Rule 27 of CPC was filed by defendants for taking on record additional documents with respect to shops and / or properties of plaintiff at Indore. Since the same were not in the same town where the suit premises are situated, they were wholly irrelevant hence lower appellate Court has not committed any error in rejecting the application filed by defendants.

11. A perusal of the judgment passed by lower appellate Court shows that it has taken into consideration the evidence adduced by both the parties, oral as well as documentary and has noted and answered the submissions of defendants. Specific findings have also been given by it as regards pleadings and submissions of defendants hence it cannot be said that it has failed to exercise its jurisdiction as the final Court of facts.

12. Thus the judgment and decree passed by Courts below holding that plaintiff has proved the suit premises is bonafide required by him for his business and that he is not possessed of any other reasonably suitable alternate accommodation of his own in the town are perfectly just and legal. No perversity or illegality is found in the findings and the reasonings of the Courts below. No substantial question of law arises for determination in this appeal which is consequently dismissed in limine.

13. The appellants have been residing in the tenanted premises

for past 25-30 years hence deserve to be granted reasonable time for vacating the said premises. It is hence directed that :-

"(a) The appellants shall be entitled to retain possession of the suit premises upto to 31/10/2022 and shall handover possession of the same to the respondents on 01/11/2022.

(b) The appellants shall deposit the entire arrears of rent, if any, and costs of the litigation and shall continue to pay the monthly rent by the 15th day of the succeeding month.

(c) Appellants shall furnish undertaking before the Executing Court within a period of three months that they shall vacate the premises on 01/11/2022 without any let or hindrance.