Sunil Kumar Samaiya vs Nirmalchand Betiya
2023 Latest Caselaw 2045 MP

                                 1     S.A. No.648/2017


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 8th OF FEBRUARY, 2023
              SECOND APPEAL No. 648 of 2017
BETWEEN:-

1.    SUNIL KUMAR SAMAIYA S/O LATE
      HARISH CHANDRA SAMAIYA, AGED
      ABOUT   48  YEARS,  R/O   529
      SUKRAWARI            BAJARIA,
      HANUMANTAL, DISTRICT JABLPUR
      (MADHYA PRADESH)



2.    SMT. ASHA SAMAIYA W/O SUNIL
      KUMAR SAMAIYA, AGED ABOUT 45
      YEARS,   R/O  529  SUKRAWARI
      BAJARIA, HANUMANTAL, DISTRICT
      JABLPUR (MADHYA PRADESH)



                                       .....APPELLANTS
(BY SHRI R.P. KHARE- ADVOCATE)

AND

NIRMALCHAND          BETIYA    S/O
CHHUTTANLAL JAIN, AGED ABOUT 78
YEARS, R/O 731 JAWAHARGANJ WARD
NEAR VIJAY CUTPIECE, JABALPUR
(MADHYA PRADESH) (DEAD) THROUGH
LEGAL REPRESNTATIVES AS PER COURT
ORDER DATED 27.10.2021.

(I) SMT. MANORAMA BETIY, AGED 82
YEARS, W/O LATE NIRMAL CHAND
BETIYA,   R/O 765, JAWAHARGANJ,
JABALPUR.

(II) SUDHEER BETIYA, S/O LATE NIRMAL
CHAND BETIYA, AGED ABOUT 54 YEARS,
                                    2                    S.A. No.648/2017


R/O 765, JAWAHARGANJ, JABALPUR.

(III) SUNIL BETIYA, S/O LATE NIRMAL
CHAND BETIYA, AGED ABOUT 51 YEARS,
R/O 765, JAWAHARGANJ, JABALPUR

(IV) NEERAJ BETIYA, S/O LATE NIRMAL
CHAND BETIYA, AGED ABOUT 48 YEARS, R/O
765, JAWAHARGANJ, JABALPUR




                                                      .....RESPONDENTS
(BY SHRI ASHOK KUMAR JAIN- ADVOCATE)

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


                                 JUDGMENT

This Second Appeal under Section 100 of C.P.C. has been filed against the judgment and decree dated 08.05.2017 passed by the 2nd Additional District Judge, Jabalpur in Civil Appeal No.17/2016 arising out of the judgment and decree dated 19.12.2015 passed by 11th Civil Judge Class-II, Jabalpur in Civil Suit No.108-A/2015.

2. The facts necessary for disposal of the present appeal, in short, are that the respondent filed a suit for eviction as well as permanent injunction. It is the case of the plaintiff that Late Chhunnelal Samaiya was inducted as a tenant in the disputed shop which formed part of House No.764, Bahadalpura, Sarafa Ward, Jabalpur on the monthly rent of Rs.15/- but with the passage of time and looking to the standard of cost of living the rent was enhanced to Rs.30/- per month. After the death of Late Chhunnelal Samaiya his son Harish Chandra Samaiya

became the tenant of the disputed shop. Harish Chandra Samaiya has also expired and defendant No. 1 who is the son of Harish Chandra Samaiya is continuing as tenant of the shop. It was also claimed that the defendant No. 1 is having a shop in the name of Fancy Cut Piece Centre and he has been paying rent to the present plaintiff by adorning him as a landlord and owner of the shop. Therefore, it was claimed that the landlord tenant relationship are well established. It is also averred by the respondent that plaintiff had filed a civil suit for eviction against late Chhunnelal Samaiya which was registered as Civil Suit No. 17-A/1987 on the ground of bona fide need, which was dismissed by the Court on 05.02.1991. However, it was claimed that the dismissal of the suit for eviction of bona fide requirement would not amount to res judicata and a second suit is maintainable. It was the case of the plaintiff that he has four grownup sons namely Sudhir Kumar, Sunil Kumar, Monoj Kumar and Neeraj Kumar. It was specifically pleaded that the elder son Sudhir Kumar is having an independent source of income and he is maintaining his family on his own. So far as younger sons of plaintiff namely Manoj Kumar and Neeraj Kumar are concerned, it was claimed that they are totally unemployed and they do not have any definite source of income. It was further claimed that his fourth son Sunil Kumar has occasional source of income and works according to the need of people. It was also claimed by the plaintiff that even he has no definite source of income and he works as a petition writer whenever needed. Under these circumstances, it was claimed that the suit shop marked by letters ABCD in the plaint map is required bona fidely for the non residential need of the plaintiff as well as for his two grownup major sons who shall do business in the shop for their livelihood. Apart from that it was also claimed that the defendant is in habit of making false complaint

against the plaintiff and therefore, they are creating nuisance and a decree was also sought under Section 12(1)(C) of the M.P. Accommodation Control Act and thus the suit was filed for eviction under Section 12(1)(C) and 12 (1)(F) of the M.P. Accommodation Control Act.

3. The defendants filed their written statement and admitted that the plaintiff is the owner and landlord of the shop in question and the defendant is the tenant on the monthly rent of Rs.30/- per month. It was denied that the defendant has not paid the rent for the last 5 years. It was further claimed that in Miscellaneous Case No.27/2005 which is pending before the Court of II Civil Judge Class-I, Jabalpur the defendant is regularly depositing the rent. It was further claimed that Civil Suit No. 17-A/1987 was filed against his grandfather Chhunnelal Samaiya, which was dismissed by order dated 05.02.1991. However, it was admitted that the plaintiff is not debarred from filing a fresh suit. It was admitted that the plaintiff has four sons namely Sudhir Kumar, Sunil Kumar, Manoj Kumar and Neeraj Kumar. The pleading of the plaintiff that Sudhir Kumar is earning his livelihood was not disputed. It was denied that Manoj Kumar and Neeraj Kumar are unemployed and have no source of income. It was claimed that Sunil Kumar is working as an agent in Sahara India. Similarly, Manoj Kumar is working as a Manager in Kapil Brush Industries. It was further claimed that Neeraj Kumar is running Cyber Café in Wright Town, Jabalpur. It was further claimed that the Nirmalchand Betiya is working as an accountant in the shops. It was denied that plaintiff has a bona fide requirement for non residential purposes for himself or for his sons. In fact, the plaintiff was never in requirement of shop for non residential purpose, therefore, he

had earlier got his suit dismissed for want of prosecution and never filed an application for restoration of the same. The plaintiff and his sons were never interested in starting their independent business and they are doing their job work. It was further claimed that the plaintiff has a commercial accommodation admeasuring 10 feet and 17 feet situated in Main Market and which is suitable for catering his needs. The allegations of making false reports were also denied. Thus nutshell the bona fide need for non residential purpose was denied by the defendants.

4. The trial Court after framing issues and recording evidence dismissed the suit by holding that the plaintiff has failed to prove that the defendant is guilty of causing nuisance. It was also held that the plaintiff has failed to prove that the shop in question is required bona fide for non residential purpose of the plaintiff or his sons.

5. Being aggrieved by the judgment and decree passed by the trial Court the plaintiff preferred an appeal which was partially decreed by judgment and decree dated 08.05.2017 by IInd Additional District Judge, Jabalpur in Civil Appeal No. 17/2016 and decree for eviction has been passed under Section 12 (1)(F) of the M.P. Accomodation Control Act whereas, the appeal for eviction under Section 12(1)(C) of the M.P. Accommodation Control Act has been rejected.

6. Challenging the judgment and decree passed by the First Appellate Court, it is submitted by the counsel for the appellant that the First Appellate Court should not have reversed the well reasoned judgment and decree passed by the trial Court. The trial Court has specifically found that the plaintiff does not require the suit shop bona

fide for non residential purpose. In fact, the sons of the plaintiff's are working and are earning independently.

7. To buttress his contention, the counsel for the appellant has also relied upon the judgment passed by the Co-ordinate Bench of this Court in the case of Ashok Kumar Dureja Vs. Rajendra Kumar Jain through L.Rs., reported in 2017 (4) MPLJ 619 and in the case of Mahadev Prasad Khare deceased through LRs. Parwati Bai Khare and Others Vs. MST. Rambai deceased through LRs. Anil Kumar Khare and Others, reported in 2008 (3) MPLJ 57. It is also submitted by the counsel for the appellant that during the pendency of this appeal Manoj Kumar (P.W.-1) has expired and accordingly, he has filed an application under Order 6 Rule 17 of C.P.C. i.e. I.A. No. 2122/2023 for amendment in the written statement.

8. Considered I.A. No. 2122/2023.

9. It is the case of the appellant that Manoj Kumar Betiya (P.W.-1) has expired on 13.09.2020. Since the suit was filed for bona fide requirement of Manoj Kumar Betiya also, therefore, the factum of death of Manoj Kumar Betiya is relevant and since the application for amendment in the written statement has been filed on the basis of subsequent event, therefore, it is allowed.

10. Let necessary amendment be carried out within a period of 7 working days.

11. This appeal was admitted by order dated 17.07.2017 on the following two substantial questions of law:-

"(i) Whether the lower Appellate Court committed error of law and reversed the well reasoned findings of the trial Court?

(ii) Whether under the facts and circumstances of the case, the need of the plaintiff's son Manoj is wrongly held to be bona fide by the first appellate court."

Whether under the facts and circumstances of the case, the need of the plaintiff's son Manoj is wrongly held to be bona fide by the first appellate court.

12. By referring to the evidence of Manoj Kumar Betiya (P.W.-1), it is submitted by Shri Khare that in paragraph 7 of his Examination-in- Chief, he stated that the suit has been filed for bona fide requirement of himself i.e. Manoj Kumar Betiya (P.W.-1). It is submitted that since Manoj Kumar Betiya (P.W.-1) has expired, therefore, the bona fide requirement of Manoj Kumar Betiya has come to an end. It is submitted that since, the appeal is continuation of suit, therefore, the bona fide requirement must exists even on the date of passing of the decree by the Appellate Court.

13. The Co-ordinate Bench of this Court in the case of Ashok Kumar Dureja (supra) has held that the appeal is continuation of suit and, therefore, the landlord's need must be shown to continue to exist even at the appellate stage. Therefore, the facts of this case shall be considered in light of the submissions made by the counsel for the appellant.

14. Manoj Kumar Betiya (P.W.-1) has specifically stated in paragraph 13 of his cross-examination that he himself and his brother Sunil and Neeraj would jointly run a business in the suit shop. Even the plaint was

filed for bona fide requirement of plaintiff as well as his sons Manoj, Sunil and Neeraj. In paragraph 7 of his Examination-in-Chief, it is also mentioned by Manoj Kumar Betiya (P.W.-1) that he is aware of the fact that suit has been filed for bona fide requirement of his father and sons. Therefore, this Court is of the considered opinion that merely because Manoj Kumar Betiya (P.W.-1) has expired during the pendency of the appeal, would not mean that the bona fide requirement of the plaintiff and his other sons namely Sunil and Neeraj would also come to an end. Therefore, it is held that the death of Manoj Kumar Betiya (P.W.-1) during the pendency of the appeal will not have any adverse effect on the outcome of the appeal.

15. The contention of the counsel for the appellant that once the trial Court has assigned sound reason for dismissing the claim of the plaintiff even on the ground of bona fide requirement for non residential purpose, therefore, the appellate Court should not have disturbed the said findings in a light manner. To buttress his contention, the counsel for the appellant has relied on the judgment passed by the Co-ordinate Bench of this Court in the case of Mahadev Prasad Khare (supra).

16. This Court has gone through the findings recorded by the trial Court.

17. The trial Court in paragraph 24 has given undue weightage to the evidence of Manoj Kumar (P.W.-1) which is to the effect fact that all the four brothers are working. The trial Court has also held that no suggestion was given to the Arvind Kumar (P.W.-2) with regard to his evidence that Sunil is working privately as well as Manoj is also working privately and Neeraj is working in Cyber Café. The trial Court

has held that although, the defendant has not filed any document to support that Neeraj is running any Cyber Cafe or Manoj is working in Kapil Brush Industries or Sunil is working as an agent in Sahara India but still gave undue weightage to his oral evidence and came to a conclusion that since all the sons of the plaintiff's are working, therefore, the plaintiff does not have bona fide need for non residential purpose.

18. This Court has gone through the evidence of Manoj Kumar Betiya (P.W.-1). In paragraph 14 of his cross-examination, suggestion was given to Manoj Kumar (P.W.-1) that Sunil Kumar is working in Sahara India which was denied. However, Manoj Kumar (P.W.-1) on his own clarified that earlier he was working and now he is not working in the said company. He also denied that Neeraj Kumar is running Cyber Café in Wright Town, Jabalpur. He also denied that Manoj Kumar (P.W.-1) is working on the post of Manager in Kapil Brush Industries.

19. The defendant Sunil Samaiya appeared as D.W.-1. In para 6 of his cross-examination he admitted that the plaintiff has four sons. He also admitted that Sudhir is elder son and has independent source of income. He claimed that Manoj and Neeraj are also earning. He claimed that Manoj Kumar is working in Kapil Brush Industries whereas Neeraj is running Cyber Cafe. He further claimed that Sunil is an agent in Sahara India Company. However, he accepted that he has not filed any document from which it can be seen that Manoj Kumar (P.W.-1) is working as a Manager in Kapil Brush Industries. He also claimed that he can examine a witness to prove that Manoj Kumar (P.W.-1) is working as a Manager in Kapil Brush Industries. Sunil Samaiya (D.W.-1) was not in a position to disclose the name of Cyber Cafe which according to

him is being seen by Neeraj Kumar. He also expressed his ignorance as to whether Neeraj Kumar is himself running the Cyber Café or he is an employee. He also admitted that he has not filed any document to show that Neeraj Kumar is running Cyber Cafe. He also claimed that when he received notice for eviction, Sunil Kumar was an agent in Sahara India. He further claimed that he was not on payroll but was an agent. He further claimed that he cannot produce any witness from Sahara India to prove that Sunil Kumar was working as an agent. He further stated that he cannot say that whether at present Sunil Kumar is working as an agent for Sahara India or not? He further admitted that he has not seen any document of Kapil Brush Industries, Cyber Cafe or Sahara India.

20. Similarly, Satish Samaiya (D.W.-2) has claimed that Manoj is working in Kapil Brush Industries. However, in paragraph 6 of his cross-examination he expressed his ignorance about the name of owner of Kapil Brush Industries. He also expressed his ignorance about the post on which Manoj Kumar (P.W.-1) was working. He also expressed his ignorance about the salary of Manoj Kumar (P.W.-1). He stated that he had never visited Kapil Brush Industries. On the contrary he claimed that Manoj Kumar (P.W.-1) had informed that he is worked in Kapil Brush Industries. He also claimed that he has not seen that Neeraj Kumar is running Cyber Cafe. He claimed that Sunil Kumar is still working as an agent in Sahara India Company. However, he was unable to disclose that in which Branch of Sahara India Company, Sunil Kumar is working as an agent.

21. Thus, it is clear that Manoj Kumar (P.W.-1) has specifically denied that Sunil Kumar is working in Sahara India or Neeraj Kumar is having any Cyber Cafe in Wright Town, Jabalpur. He has also

specifically denied that he is working on the post of Manager in Kapil Brush Industries. Even defendants could not file any documents to show that Manoj Kumar, Sunil Kumar or Neeraj Kumar are having independent source of income.

22. The counsel for the appellant insisted on admission made by Manoj Kumar Betiya in paragraph 12 of his evidence that all the four brothers are in job, but Manoj Kumar (P.W.-1) in the next line expressed that for their survival they are required to do something. Thus, explanation given by Manoj Kumar (P.W.-1) cannot be said to be an admission that they are not in bona fide requirement for non residential purpose. The landlord or his dependents cannot be compeled to live the life of a destitute by facing starvation in order to get the suit shop vacated.

23. One thing is clear that even it is not the case of the defendant that the sons of the plaintiff are in permanent job and do not require the suit shop bona fide for non residential purpose.

24. Under these circumstances, this Court is of the considered opinion that the First Appellate Court did not commit any mistake by reversing the findings given by the trial Court regarding bona fide need of the plaintiff for non residential purpose.

25. Accordingly, both the substantial questions of law are answered in negative.

26. As a consequence thereof, the judgment and decree passed by the First Appellate Court is hereby affirmed.

27. The appeal fails and is hereby dismissed with cost of Rs.20,000/- to be deposited in the Registry of this Court, within a period of one month from today. Pleaders fee, if certified.

(G.S. AHLUWALIA) JUDGE ashish

ASHISH KUMAR LILHARE 2023.02.11 13:29:32 +05'30'