Ameerchand Goel & Ors. vs Devendra Kumar Dubey & Ors.
2022 Latest Caselaw 2891 MP

                                                         1
                          IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                          BEFORE
                                            HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                 ON THE 2nd OF MARCH, 2022
                                             SECOND APPEAL No. 474 of 1998
                                Between:-
                                AMEERCHAND GOEL & ORS. , AGED ABOUT 55
                                YEARS, (MADHYA PRADESH)

                                                                                         .....APPELLANT
                                                    NONE FOR THE APPELLANT

                                AND

                                DEVENDRA KUMAR DUBEY & ORS. (MADHYA
                                PRADESH)

                                                                                     ......RESPONDENTS
                                   SHRI ISHTEYAQ HUSSAIN, ADVOCATE FOR RESPONDENTS

                                This second appeal is taken up for hearing and the Court has
                                                   passed the following:
                                                         ORDER

This second appeal has been filed on behalf of the Appellant/Defendants/Tenants being aggrieved of judgment & decree dated 15.11.1994 passed by the learned 1st Civil Judge Class-II Hoshangabad in

Regular Civil Suit No.33A/1991 whereby the suit of the Respondent/Plaintiff/Landlord Devendra Kumar Dubey for eviction of the Tenants on the basis of bonafide need was decreed by the learned Trial Court in terms of the provisions as contained in Sections 12(1)(b), 12(1)

(c), 12(1)(d) & 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 (for short "Act of 1961").

Being dissatisfied with the judgment & decree of the Trial Court, the Appellant/Defendant/Tenant No.1 had filed Regular First Appeal No.5A/1995 before the Court of 1st Additional District Judge, Hoshangabad, which reversed the finding of the Trial Court to some extent but upheld it under Section 12(1)(f) of the Act of 1961 vide judgment & Signature SAN Not Verified decree dated 24.3.1998.

Digitally signed by AMIT JAIN Date: 2022.03.03 Vide order dated 17.7.1998, this second appeal was admitted by a 18:52:17 IST

Coordinate Bench of this Court on the following substantial question of law, namely, whether the Courts below committed an error of law in holding that the plaintiffs have proved their bonafide need as envisaged under Section 12(1)(f) of the Madhya Pradesh Accommodation Control

Act, 1961.

Undisputed facts of the case are that the Respondent/Plaintiff/Landlord Devendra Kumar Dubey had purchased a Plot No.51 admeasuring 895 Square Feet vide registered sale deed dated 29.10.1988 from one Smt.Gulab Bai Jain. Present appellants were Tenants of seller Smt.Gulab Bai. After the plaintiff Devendra Kumar Dubey purchased the said property with a view to run his business from the said premises, he had given a notice to the Appellants/Defendants/Tenants to vacate the suit premises but when it was not vacated then the suit for eviction was filed on various grounds as are contained in the provisions of Sections 12(1)(b), 12(1)(c), 12(1)(d) & 12(1)(f) of the Act of 1961.

The Trial Court after appreciating evidence on record decreed the suit filed the Respondent/Plaintiff/Landlord.

The First Appellate Court found that Devendra Kumar Dubey (PW.5) in Paragraph No.2 of his deposition expressed that he wanted to open a General Store at the suit premises. He is 10th fail & unemployed. He has no interest in agricultural activities and, therefore, he wanted to open a General Store as there is no General Store in the nearby vicinity to the demised premises. The property in question is in the main market & is suitable for his business. He is staying on the first floor of the building and before purchasing the said building, he was staying at Udaipura, District Raisen. After purchasing the said building, he is staying at Hoshangabad continuously. He has three acres of land at Udaipura, District Raisen which he is cultivating on share cropping. It has come on record that no

questions were put to Devendra Kumar Dubey (PW.5) to contradict his evidence that he is not in need of demised premises in connection with the business at Hoshangabad.

Ashok Kumar Gupta (PW.2) deposed that at the demised premises, any business can be successfully managed because the property in question is situated in the main market. The plaintiff has no other property in Hoshangabad except the demised premises.

Jagdish Kumar Dubey (PW.3) deposed that the plaintiff is his

nephew & wants to open a General Store at the demised premises. He has no other premises of his own to run the said business in Hoshangabad district. He has no regular employment for himself. He has no interest in agricultural activities.

Rajendra Sharma (PW.4) supported the case of the plaintiff & deposed that he wants to open a General Store in the demised premises. He has no other place in Hoshangabad to run such business.

Defendant Amir Chand Goyal contested the claim of the plaintiff & deposed that the plaitniff is a Farmer at Udaipura, District Raisen having his farming activities. On the first floor & also in his neighbourhood, another shop is vacant. The vacant shop has more space than the one in possession of the defendant.

The learned First Appellate Court recorded a finding that even if the plaintiff is a resident of Udaipura, District Raisen but that does not mean that he cannot start the business at Hoshangabad in a premises, which is purchased by him for the said purposes. It also observed that there is no such evidence on record to demonstrate that the plaintiff has any malafide intention to dislodge the defendant(s). It has also come on record that the defendant could not prove that the plaintiff wished to rent out the shop in question to someone else on a higher rate of rent. Thus, placing reliance on the judgment of this High Court in the case of Panjumal Daulatram

(Firm) versus Sakhi Gopal Thakurdin Agrawal 1977 M.P.L.J 762 , the First Appellate Court reached to the conclusion that even if the plaintiff has some other place for his residence but that cannot be a ground to deprive him from seeking vacation of commercial property required for the purposes of business of self.

The First Appellate Court clearly observed that the finding of the Trial Court that since the building was 50 years old & was suffering from seepage, therefore, the plaintiff requiring the said shop for improvization in the property is a perverse finding. It also recorded a specific finding that in absence of any evidence from the competent authority that the building is in dilapidated condition & is unfit for human habitation, no finding could have been recorded by the Trial Court in terms of the requirement of Section 12(1)(b) of the Act of 1961 that the Tenant had unlawfully sublet, assigned or parted with the possession of the letout property is not made out so also the provisions as contained in Section 12(1)(c) of the Act of 1961 are not made out that is of causing or creation of nuisance in the hands of the Tenant and similarly it also observed that even the provisions of Section 12(1)(d) of the Act of 1961 are not made out and, therefore, affirmed the decree under the provisions of Section 12(1)(f) of the Act of 1961 i.e. on the basis of bonafide need of the Landlord.

When evidence is appreciated in totality then it is evident that the learned First Additional District Judge, Hoshangabad has rightly appreciated the evidence & has corrected the error, which had crept in, in the original judgment & decree whereby the learned Trial Court had decreed the suit for eviction on the grounds mentioned in Sections 12(1)

(b), 12(1)(c), 12(1)(d) & 12(1)(f) of the Act of 1961.

After perusing the record & appreciating the documents available on record, this Court is of the opinion that since the shortcomings in the

impugned judgment & decree passed by the Trial Court have been rightly appreciated & corrected by the learned First Appellate Court and it has granted decree only on the ground of Section 12(1)(f) of the Act of 1961, which could not be challenged by producing any cogent evidence by the Tenant.

In the case of Shiv Sarup Gupta versus Dr.Mahesh Chand Gupta AIR 1999 SC 2507, it is held that the judge of facts should place himself in the air chair of the Landlord and then ask the 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 bonafide. In the case of Rakhav Lal versus Sardar Kirpal Singh 2008 (1) M.P.L.J 278, the Court has held that an element of need, howsoever, small in degree must be there.

The next issue, which emerges is even if there is an alternative accommodation available, can Landlord still insist on his requirement for business purpose? Answer is in the judgment of the Supreme Court in the

case of Raghvendra Kumar versus Firm Prem Machinary & Company AIR 2000 SC 534 that the Landlord is the best judge of his requirement and he has got complete freedom in the matter. Same is the ratio of the law laid down in the case of Radheshyam versus Ramakant (Deceased) Through LRs 2004 (2) M.P.L.J 332.

When tested on the touchstone of the aforesaid legal authorities then it cannot be said that there is no error apparent on the face of record in the judgment & decree passed by the learned First Appellate Court calling for reversing the judgment & decree, therefore, substantial question of law framed by a Coordinate Bench of this Court vide order dated 17.7.1998 is answered in the following terms; that there was a material error committed by the learned Trial Court in decreeing the suit taking aid of the provisions as contained in Sections 12(1)(b), 12(1)(c), 12(1)(d) besides Section

12(1)(f) of the Act of 1961 but that error having been corrected and there exits no dispute of bonafide need of the Landlord. There is no error in the impugned judgment & decree to the extent it directs for eviction on the ground of bonafide need under Section 12(1)(f) of the Act of 1961 so also in the Appellate Court Order in granting a decree of eviction in terms of the provisions as contained in Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961.

Accordingly, this second appeal fails & is dismissed. Let record of the Trial Court be sent back.

Certified copy as per rules.

(VIVEK AGARWAL) JUDGE amit