Madhya Pradesh High Court
Smt.Poonam Devi Khatwani vs Prakash Chandra Agarwal on 23 February, 2022
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 23rd OF FEBRUARY, 2022
SECOND APPEAL No. 1780 of 2021
Between:-
1. SMT.POONAM DEVI KHATWANI W/O LATE
VASUDEO KHATWANI , AGED ABOUT 59 YEARS,
OCCUPATION: HOUSEWIFE NEAR OLD
EMPLOYMENT EXCHANGE, JAIPRAKASH WARD,
NAI BASTI KATNI (MADHYA PRADESH)
2. RISHI KUMAR KHATWANI S/O LATE SHRI
VASUDEO KHATWANI , AGED ABOUT 36 YEARS,
OCCUPATION: BUSINESS R/O NEAR OLD
EMPLOYMENT EXCHANGE JAIPRAKASH WARD,
NAI BASTI (MADHYA PRADESH)
3. GURBAKSH RAI KHATWANI S/O LATE SHRI
VASUDEO KHATWANI , AGED ABOUT 34 YEARS,
OCCUPATION: BUSINESS R/O NEAR OLD
EMPLOYMENT EXCHANGE JAIPRAKASH WARD,
NAI BASTI (MADHYA PRADESH)
4. HARISH KUMAR KHATWANI S/O LATE SHRI
VASUDEO KHATWANI , AGED ABOUT 33 YEARS,
OCCUPATION: BUSINESS R/O NEAR OLD
EMPLOYMENT EXCHANGE JAIPRAKASH WARD,
NAI BASTI (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ASHOK LALWANI, ADVOCATE)
AND
PRAKASH CHANDRA AGARWAL S/O KEDAR
PRASAD AGARWAL , AGED ABOUT 53 YEARS,
MAVIYA GANJ KATNI (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI GIRISH KUMAR SHRIVASTAVA, ADVOCATE)
This appeal coming on for admission as well as on I.A. No.9523/2021 this
day, the court passed the following:
JUDGMENT
This second appeal has been preferred by the appellants/defendants, being
aggrieved by the impugned judgment and decree dated 25.11.2021 passed by the
Principal District Judge, Katni, in Regular Civil Appeal No.08/2020, whereby the
judgment and decree dated 17.12.2019 passed by the Fourth Civil Judge Class-I,
Katni in RCSA/12/17 has been reversed.
2 . The respondent/plaintiff on 20.01.2017 filed a Civil Suit being
RCSA/12/17 against the original defendant for eviction, vacant possession, arrears
of rent and mesne profit in respect of the suit shop.
3. The case of the respondent/plaintiff before the trial Court, in short, was
that the original defendant, namely, Vasudeo Khatwani was in the tenant of his
shop situated at Malviya Ganj, Katni as a tenant on monthly rent of Rs.2600/-. The
tenancy commences from the first day of every month and ends at the last day of
the month. The defendant paid rent to the plaintiff/respondent upto September,
2016, and since October 2016 rent is pending. Respondent sent a registered
demand notice through his counsel on 07.11.2016, which was replied by the
original defendant. The respondent/plaintiff himself was running a shop of men's
readymade garments in one portion of the building, and since there was a demand
of women's garments, therefore, he required the suit shop for the said business. It
was pleaded in the plaint that respondent/plaintiff's wife is inclined to do business
of women's garments and he has no alternative accommodation for the same,
therefore, he is in bonafide need of the suit shop. The original defendant replied to
the notice dated 07.06.2016 and disputed bonafide need of plaintiffs. Therefore,
the respondent/plaintiff filed the aforesaid civil suit for eviction, vacant possession
and arrears of rent for October & November, 2016 as also vacant possession
since December, 2016 along with mesne profit.
4. The original defendant denied the plaint averments and pleaded that he
had paid of Rs.2600/- for the month of October, 2016 through his son and
respondent/plaintiff assured him that receipt thereof will be given subsequently. On
01.11.2016, when the present appellant No.4 - Harish had approached along with
monthly rent for the month of November, 2016, the respondent/plaintiff refused to
accept and raised a demand that henceforth rent at the rate of Rs.10,000/- per
month would be payable. The defendant sent Rs.2600/- for the month of
November, 2016 through money order, but the same was also not accepted.
However, after filing of the civil suit the defendant deposited the rent amount of
Rs.20,800/- through CCD book from November, 2016 till June, 2017 and from
July, 2017 till December, 2017 amounting to Rs.15,600/- was also deposited. He
also pleaded that there is no arrears of rent. The defendant further averred that the
respondent/plaintiff is running shop of men's and women's wear under the name of
Bharti Fashion House situated in Goal Bazar, near Ramlila Maidan, Katni. The
defendant further pleaded that adjacent to plaintiff's shop there is a shop belonging
to one Ms. Sushila Agrawal, in which one Prakash was carrying on business. The
possession of such shop has already been taken by the plaintiff in year 2015. He is
also using the said shop for his own. Thus, in essence, the plea of defendant is that
the respondent/plaintiff has an alternative accommodation and therefore, he does
not require the suit shop bonafide. He also pleaded that wife of plaintiff is a house
wife and she is not engaged in any business and even she has no experience of
ladies readymade garments business. Defendant further pleaded that adjacent to
plaintiff's shop, there is another shop namely Suresh Watch but the plaintiff did not
initiate any proceeding in respect of that shop. The defendants have been paying
rent to plaintiff at the enhanced rate from time to time, and in the year 2014 the
plaintiff enhanced the shop rent by giving threat of eviction. Thus, defendant
claimed dismissal of the suit.
5. The trial Court held that it could not be proved that the defendant is in
arrears of rent in respect of suit shop since October, 2016 and the same was also
not paid even after notice. The trial Court further held that it could also not be
proved that plaintiff is in bonafide need of the suit shop for his own business. The
trial Court further held that it could not be proved that plaintiff has no alternative
suitable accommodation for his business. The trial Court further recorded finding
that it has not been proved that the plaintiffs filed the suit for eviction as a pressure
tactics for enhancement of rent. It is also held that the plaintiff is not entitle to
receive mesne profit from the defendant. Thus, the trial Court has rejected the
claim of the respondent/plaintiff filed under Sections 12(1)(a) and 12(1)(f) of the
M.P. Accommodation Act, 1961.
6 . Being aggrieved by the judgment and decree passed by learned trial
Court, the respondent/plaintiff preferred first appeal under Section 96 of C.P.C.
before the Principal District Judge, Katni, which was registered as RCA
No.08/2020. During pendency of the first appeal, original defendant expired
therefore, his legal heir were brought on record. Learned lower appellate Court
observed that the trial Court erred in dismissing the suit of the respondent/plaintiff,
therefore, it set aside the judgment and decree passed by the trial Court. It
observed that the respondent/plaintiff has been successful in proving his case
under Section 12(1)(f) of the M.P. Accommodation Control Act and he is in
bonafide need of the suit shop for his wife. Accordingly, it held that respondent is
entitled for vacant possession of the suit shop within a period of two months as
also for arrears of rent, which shall be payable to him within two months from the
date of the judgment passed by Lower Appellate Court. Thus, learned Lower
Appellate Court reversed the findings recorded by the learned trial Court.
7 . Appellants/defendants being aggrieved by the judgment and decree
passed by the Lower Appellate Court dated 25.11.2021 preferred the instant appeal
on the grounds that Lower Appellate Court erred in accepting the bonafide need of
wife of respondent/plaintiff without taking into consideration that the respondent's
wife has not entered into the witness box. It further erred in decreeing the suit of
the plaintiff under Section 12(1)(f) of the M.P. Accommodation Act in the absence
o f ingredients thereof. Learned lower appellate Court ought to have appreciated
that respondent had potential capacity to raise the required funds for bonafide
need. It further ought to have appreciated documents Exhibit D/4 to D/7, while
deciding the issue relating to bonafide need.
8 . Learned for the respondent has supported the findings recorded by
learned lower appellate Court and submitted that the impugned judgment is based
on proper appreciation of facts and documents available on record.
9 . Learned counsel for the appellant strongly challenged the impugned
judgment and decree and contended that, the appellate Court allowed the plaintiff's
case on the ground of bonafide need of wife of the plaintiff under Section 2(e) of
the M.P. Accommodation Control Act. Wife is not covered under the definition of
family members. In support of his case, he has placed reliance on the decision in
the case of Badrilal vs. Sita Bai [2011 (1) M.P.L.J. 682] passed by the Full
Bench of this Court, whereby it is held that :-
"Includes the need for continuing or starting the
business of any member of the family covered by section
2(e) of the M.P. Act, on whom the landlord is so closely
dependent or who is so closely dependent on the landlord
that his need for all practical purposes is the need of the
landlord."
"The word "his business" in section 12(1)(f) of the
M.P. Act not only means the need for continuing or starting
the individual business of the landlord but it also includes the
need for continuing or starting the business of any member of
the family covered by section 2(e) of the M. P. Act, on
whom the landlord is so closely dependent or who is so
closely dependent on the landlord that his need for all
practical purposes is the need of the landlord. Since major
sons and unmarried daughters have been separately included
in section 12(1)(f), therefore, they stand on different footing
and the landlord can seek eviction for their independent
individual business need even if they are not dependent on
landlord or landlord is not dependent on them."
10. Learned counsel for the appellants has also placed reliance on the
decision in the case of Joginder Pal vs. Naval Kishore Behal [(2002) 5 SCC
397], wherein the Supreme Court has held that :-
"16. A Division Bench of Patna High Court has opined
in Bidhubhusan Sen Vs. Commissioner, Patna Division,
Patna and Anr. 1955 BLJR 654, that the expression "his own
occupation" as occurring in sub-Section (3)(a) of Section 11
of the Bihar Buildings (Lease, Rent and Eviction) Control act,
1947 does not mean only the occupation of the landlord
himself but includes the occupation of other persons who live
with the landlord and are economically dependent on him.
The requirement of nephew, who's maintenance was
responsibility of the landlord was held to be covered by the
expression 'his own occupation' of the landlord."
"24. We are of the opinion that the expression 'for his
own use' as occurring in Section 13(3)(a)(iii) of the Act
cannot be narrowly construed. The expression must be
assigned a wider, liberal and practical meaning. The
requirement is not the requirement of the landlord alone in the
sense that the landlord must for himself require the
accommodation and to fulfill the requirement he must himself
physically occupy the premises. The requirement of a
member of the family or of a person on whom the landlord is
dependent or who is dependent on the landlord can be
considered to be the requirement of the landlord for his own
use. In the several decided cases referred to hereinabove
we have found the pari materia provisions being
interpreted so as to include the requirement of the wife,
husband, sister, children including son, daughter, a
widowed daughter and her son, nephew, coparceners,
members of family and dependents and kith and kin in
the requirement of landlord as "his" or "his own"
requirement and user. Keeping in view the social or socio-
religious milieu and practices prevalent in a particular section
of society or a particular region, to which the landlord
belongs, it may be obligation of the landlord to settle a
person closely connected with him to make him economically
independent so as to support himself and/or the landlord. To
discharge such obligation the landlord may require the
tenancy premises and such requirement would be the
requirement of the landlord. If the requirement is of actual
user of the premises by a person other than the landlord
himself the Court shall with circumspection inquire : (i)
whether the requirement of such person can be considered to
be the requirement of the landlord, and (ii) whether there is a
close inter-relation or identity nexus between such person and
the landlord so as to satisfy the requirement of the first query.
11. Thus, the plaintiff can claim the disputed premises for own business
through her wife. Further, contention of the learned counsel for the appellants is
that need of the respondent is not genuine. He has alternative sufficient space and
is already running a business in his shop. In support of his case, he has also placed
reliance on the decision in the case of Shivmala Tejsingh Ingle vs. Ramacharan
Kundanlal [1980 M.P.L.J. 530].
12. But, this Court is of opinion that the tenant cannot dictate the landlord to
choose another shop for expansion of his business through his wife. The plaintiff
wants to start a new business for lady garments. Undisputedly, the disputed shop
is situated in a commercial market area, which has more commercial value.
13. In the case of Abdul Aziz Khan & another vs. Ghulam Mohd.
Langoo 2021 AIR CC 2057, wherein the High Court of Jammu and Kashmir has
held that :-
" 28. As regards above contentions of appellants it may be
mentioned here that the Supreme Court in Bega Begum v. Abdul Ahad
Khan (1979) 1 SCC 273, has held that Section 11(h) of the Act uses the
words "reasonable requirement" which undoubtedly postulate that there
must be an element of need as opposed to a mere desire or wish. The
distinction between desire and need should doubtless be kept in mind
but not so as to make even the genuine need as nothing but a desire as
the High Court has done in this case. It seems to us that the connotation
of the term 'need' or 'requirement' should not be artificially extended nor
its language so unduly stretched or strained as to make it impossible or
extremely difficult for one landlord to get a decree for eviction. The
Supreme Court in this case also considered the scope and ambit of
expression 'reasonable requirement' as follows:
"The provision is meant for the benefit of the landlord and, therefore,
it must be so construed as to advance the object of the Act. The word
'occupation' does not exclude the possibility of the landlord starting a
business or running a hotel in the shop which also would amount to
personal occupation by the landlord. In our opinion, the section
contemplates the actual possession of the landlord, whether for his own
residence or for his business. It is manifest that even if the landlord is
running a hotel in the house, he is undoubtedly in possession or
occupation of the house in the legal sense of the term. Furthermore, the
section is wide enough to include the necessity of not only the landlord
but also of the persons who are living with him as members or the same
family."
31. It is now well settled law that a tenant cannot dictate and
question adequacy requirement of space for proposed business venture
of landlord. The Supreme Court in Bega Begum vs. Abdul Ahad Khan,
(1979) 1 SCC 273 : AIR 1979 SC 272, has said that in deciding the
aspect of balance of convenience of parties in an eviction suit, each
party has to prove its relative advantages or disadvantages and entire
onus cannot be thrown on plaintiff to prove that lesser disadvantages
will be suffered by defendant. After saying this, the Supreme Court held
that tenants cannot be allowed to dictate to landlord that they cannot be
evicted unless they get a similar accommodation in the similar locality.
The Supreme Court decreed the suit for ejectment in favour of landlord
and against tenants.
37. It may not be out of place to mention here that this is no
ground to urge that landlord is already having business elsewhere, and
landlord has no genuine need to seek eviction of tenant inasmuch as it is
not a tenant to dictate the terms to landlord and advise him what he
should do and what he should not. In this regard I may refer to the
judgement of the Supreme Court in the case of M/s Sait Nagjee
Purushotham & Co. Ltd v. Vimalabai Prabhulal and others, (2005) 8
SCC 252, in which it was held:
"It is true that the landlords have their business spreading over
Chennai and Hyderabad and if they wanted to expand their business at
Calicut it cannot be said to be unnatural thereby denying the eviction of
the tenant from the premises in question. It is always the prerogative of
the landlord that if he requires the premises in question for his bona fide
use for expansion of business this is no ground to say that the landlords
are already having their business at Chennai and Hyderabad therefore, it
is not genuine need. It is not the tenant who can dictate the terms to the
landlords and advise him what he should do and what he should not. It
is always the privilege of the landlord to choose the nature of the
business and the place of business."
14. In the case of Sheo Prasad Gupta (dead) through legal representative
and another vs. Kamal Prasad and another 2021 AIR CC 400, wherein the
High Court of Chhattisgarh has held that:-
"13. The Supreme Court in the matter of Shiv Sarup Gupta v. Dr.
Mahesh Chand Gupta (1999) 6 SCC 222 has analysed the concept of
bona fide requirement and held that the requirement in the sense of felt
n e e d which is an outcome of a sincere, honest desire, in
contradistinction with a mere pretence or pretext to evict a tenant refers
to a state of mind prevailing with the landlord. The only way of peeping
into the mind of the landlord is an exercise undertaken by the judge of
facts by placing himself in the armchair of the landlord and then posing
a question to himself - whether in the given facts, substantiated by the
landlord, the need to occupy the premises can be said to be natural,
real, sincere, honest. If the answer be in the positive, the need is bona
fide.
14. In the matter of Ragavendra Kumar v. Firm Prem Machinery
& Co. . (2000) 1 SCC 679, the Supreme Court has held that it is the
choice of the landlord to choose the place for the business which is
most suitable for him. He has complete freedom in the matter.
15. In the matter of Prativa Devi (Smt) v. T.V Krishnan . (1996) 5
SCC 353, it was held by the Supreme Court that the landlord is the best
judge of his requirement and courts have no concern to dictate the
landlord as to how and in what manner he should live. The bona fide
personal need is a question of fact and should not be normally interfered
with.
16. The Supreme Court in the matter of Anil Bajaj v. Vinod Ahuja
(2014) 15 SCC 610 repelling the argument with regard to availability of
reasonably alternative accommodation, their Lordships held that it is not
for the tenant to dictate to the landlord as to how the property belonging
t o the landlord should be utilised by him for the purpose of his
business."
15. In the case of Balkrishna vs. Gurupreet Singh 2019 SCC OnLine
MP 1850, reference has been made by the High Court of M.P. in the case of Bega
Begum vs. Abdul Ahdkhan, wherein the Apex Court has taken view that the
requirement only connotes an element of genuine need and came to hold in para 13
as under:-
"13. Moreover, Section 11(h) o f t h e A c t u s e s t h e words
'reasonable requirement' which undoubtedly postulate that there must be
an element of need as opposed to a mere desire or wish. The distinction
between desire and need should doubtless be kept in mind but not so as
to make even the genuine need as nothing but a desire as the High Court
has done in this case. It seems to us that the connotation of the term
'need' or 'requirement should not be artificially extended nor its language
so unduly stretched or strained as to make it impossible o r extremely
difficult fo r one landlord to get a decree for eviction. Such a course
would defeat the very purpose o f the Act which affords the facility of
eviction of the tenant to the landlord on certain specified grounds. This
appears to us to b e the general scheme of all the Rent Control Acts,
prevalent in other State in the country. This Court has considered the
import of the word "requirement" and pointed o u t t h a t it merely
connotes that there should be an element of need.
16. Learned appellate Court below recorded the findings against the
appellant after proper appreciation of evidence on record. After considering the
evidence available on record, this Court is of the opinion that no substantial
question of law arises for consideration in this appeal, in view of the findings
recorded by the appellate Court. Thus, there is no perversity or illegality in the
impugned judgment passed by the lower appellate Court. Hence, no interference is
warranted. Accordingly, this appeal deserves to be and is hereby dismissed at
motion stage.
(SMT. ANJULI PALO)
JUDGE
rj
Signature Not Verified
SAN
Digitally signed by RAJESH KUMAR
JYOTISHI
Date: 2022.02.24 13:16:55 IST
