Bano Bi vs Iqbal Hussain Haidery
2022 Latest Caselaw 4064 MP

                              1

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

                ON THE 24th OF MARCH, 2022

             SECOND APPEAL No. 1215 of 2021

 Between:-
 BANO BI W/O IQBAL HUSSAIN , AGED ABOUT 64 YEARS,
 OCCUPATION: BUSINES BANGLA NO. 71 A, CHANA GODAM BHAYAJI
 MARG, DR. AMBEDKAR NAGAR, DIST. INDORE (MADHYA PRADESH)
                                                .....APPELLANT
 (BY SHRI S.K. SHARMA, ADVOCATE )

 AND

 IQBAL HUSSAIN HAIDERY S/O INAYAT HUSSAIN HAIDERY , AGED
 ABOUT 54 YEARS, OCCUPATION: BUSINESS AND SERVICE 27 MAIN
 STREET, DR, AMBEDKAR NAGAR, INDORE (MADHYA PRADESH)
                                             .....RESPONDENTS

      This appeal coming on this day, the court passed the
following:
                          ORDER

Heard on the question of admission.

This second appeal under Section 100 of Code of Civil Procedure is directed against the judgement and decree dated 16.7.2021 passed in civil appeal No. 47-A/2019 by 4th

Additional District Judge Ambedkar Nagar Indore arising out of judgement and decree dated 30.9.2019 passed in civil suit No. 117A/2017 passed by Civil Judge Class I Ambedkar Nagar Indore.

The respondent/plaintiff filed a suit for eviction of appellant under section 12(i)(a) and 12(i)(e) of MP Accommodation Control Act from the suit premises. It is contended by respondent/plaintiff that the suit premises was let out for residential purpose to husband of appellant late Iqbal Hussain and after his death appellant is residing in the suit premises as a tenant of plaintiff on payment of rent of Rs. 400 per month but defendant was very irregular in depositing the rent amount. Since 1.12.2012 defendant did not pay the rent amount and defendant without consent of plaintiff constructed illegally a kitchen which is contrary to the terms of rent agreement, the suit premises was required bonafide to the plaintiff for residential purposes of his family members because they have no alternate space in Mhow for residential purpose. The suit house is 100 years old and it is dangerous for human residence without repairing. The rent of suit premises was not paid by appellant despite demand notice. The said suit

was contested by appellant by contending that he has constructed the kitchen with permission of previous landlord but the amount of construction was not adjusted in the rent amount as per promise of the previous landlord.

The trial court after framing the issues, recording evidence and after hearing both the parties came to the conclusion that appellant has not paid the rent from 1.12.2012 despite receipt of notice of the suit. Further on appreciation of evidence trial court reached to the conclusion that the suit premises is required by respondent/plaintiff bonafidely for residential accommodation purpose of the plaintiff's family members and has partly decreed the suit. The appeal was preferred by appellant against the said judgment and decree before the lower appellate court. The appellate court has affirmed the findings so recorded by the trial court and dismissed the appeal. Therefore, this second appeal is filed before this court.

Learned counsel for the appellant has invited attention of this Court to the statement of some witnesses and contended that in view of the statement alternate accommodation was available with the respondent/plaintiff for residential

accommodation of his family members and appellant has deposited the entire rent and therefore, alleged need was not bonafide. The evidence adduced by appellant was not appreciated by court below and suit was wrongly decreed. This aspect though was raised before the lower appellate court, again it was not considered by lower appellate court and appeal has been dismissed. It is further contended that if the bonafide- ness of alleged need was not established keeping in view the availability of alternate accommodation, the suit filed by respondent/plaintiff ought not to be decreed. Hence he prays that judgement and decree passed by both the courts below be set aside.

I have heard learned counsel for the parties at length and perused all the relevant documents and record of the courts below.

The appellant/defendant Bano Bi (DW-1) categorically admitted in her statement that suit premises had been taken by her husband on rent by executing rent agreement (Ex.P-1). The appellant Bano Bi herself admitted in para 22 of her cross examination that she has not paid the rent since 1.12.2012.

Counsel for appellant contended that appellant has constructed the kitchen with consent of plaintiff and construction cost had to be adjusted from the rent amount but no such terms and conditions found in the rent agreement (Ex.P-1). The defendant did not file any relevant document and bill regarding the construction cost. Bano Bi also admitted that no permission has been obtained for such construction from the Cantt. Board or any other authority. In view of the evidence given by appellant it is clearly established that appellant has not paid rent of suit premises since 2012 and appellant had constructed the kitchen without obtaining permission from the plaintiff.

So far as requirement of suit premises to plaintiff for residential purpose is concerned, the statement of plaintiff Iqbal Hussain (PW-1) is well supported by statements of Alfaz (PW-

2), Ashfaq (PW-3). The appellant Bano Bi in her cross examination categorically admitted that Turab Ali and Inayat Hussain both are brother and they are owner and landlord of bungalow No. 71A situated at Chana Godam Mall Road Mhow and they are residing alongwith their wife and children at 72 Main Street Mhow. She does not know that plaintiff's family

have 20-30 members. The plaintiff Iqbal Hussain (PW-1) categorically stated that he is residing in a house situated at Main Street Mhow but it is a small house and therefore, he has bonafide need for suit premises for residential accommodation of his family members.

In view of the evidence available on record, the need expressed by plaintiff /respondent appears to be bonafide.

In the light of the aforesaid oral and documentary evidence available on record this court is of the considered view that the judgement and decree passed by both the courts below are well reasoned and they are based upon due consideration of oral as well as documentary evidence. The findings recorded by the courts below are concurrent findings of fact.

Learned counsel for appellant has failed to show that how the findings of fact recorded by the courts below are illegal, perverse or based upon no evidence.

Thus no substantial question of law arises for consideration in the present second appeal.

The Supreme Court in number of cases has held that in

exercise of powers under Section 100 of the Code of Civil Procedure can interfere with the findings of fact only if the same is shown to be perverse and based on no evidence. Some of these judgments are Hajazat Hussain vs. Abdul Majeed & others, 2011 (7) SCC, 189, Union of India vs. Ibrahim Uddin, 2012 (8) SCC 148 and Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, 2012 (7) SCC 288. Therefore, this appeal deserves to be dismissed.

At this stage learned counsel for appellant makes a submission that since appellant is residing in the suit premises since 1997, she may be given sufficient time to vacate the suit premises.

Such a prayer is to be considered sympathetically.

However, in the given circumstances, it would be appropriate to grant 3 month's time to the appellant to vacate the suit premises.

In view of the aforesaid, while dismissing the appeal, the appellant is granted three month's time to vacate the suit premises and put the respondent/plaintiff in possession.

Let it be done by 1 st July 2022, failing which the

judgment and decree passed by both the courts below would be executable. Need not to say that the appellant would be obliged to pay the entire arrears of rent for the suit premises during aforesaid period and would also give an undertaking that she will keep the suit premises in a good condition and deliver the possession to the respondent/plaintiff on or before 1st July 2022 in a good condition.

With the aforesaid, the appeal fails and is hereby dismissed.

C.c. As per rules.

(Anil Verma) Judge BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.03.25 17:14:48 +05'30'