Sugan Chand vs Smt. Indra Bai And Ors.
2023 Latest Caselaw 3376 MP

IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                       BEFORE
   HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
            ON THE 24th OF FEBRUARY, 2023
                SECOND APPEAL No. 562 of 1998

BETWEEN:-

SUGAN CHAND, SON OF SHRI GOPALDAS, SHRI
KRISHNA HOZERY HOUSE, LAKHERAPURA,
BHOPAL (MADHYA PRADESH)
                                                .....APPELLANT
(BY SHRI RAVEESH AGARWAL - SENIOR ADVOCATE WITH MS.SANJANA
SAHNI - ADVOCATE)

AND

1. SMT. INDRA BAI, AGED ABOUT 55 YEARS,
WIFE OF VITTHALDAS GARG;
   I)   SMT.CHITRA W/O SHRI GIRDHAR
        GOPAL;

  II)     SMT.SUSHMA, W/O SHRI    MAHESH
          CHANDRA AGARWAL;

  III)    ABHAY KUMAR,   AGED    ABOUT   50
          YEARS;

        ALL RESIDENT OF 47, LAXMI NIWAS,
        KAZIPURA, BHOPAL (MADHYA PRADESH)

2. SMT.VIMLABAI, AGED ABOUT 53 YEARS, WIFE
OF MADANLAL;

BOTH RESIDENTS OF KAZIPURA, BHOPAL, M.P.


                                              .....RESPONDENTS
(BY SHRI H.C.KOHLI - ADVOCATE)
 Reserved on : 08.02.2023
Pronounced on : 24.02.2023.

This appeal having been heard and reserved for judgment, coming on for
pronouncement this day, the Court pronounced the following :
                              JUDGMENT

1. This Second Appeal under Section 100 of CPC has been filed against Judgment and Decree dated 16-4-1998 passed by IX Additional District Judge, Bhopal in R.C.A. No. 9A/1996 arising out of Judgment and Decree dated 19-1-1996 passed by 13th Civil Judge, Class2, Bhopal in C.S. No. 121A/1991.

2. The Appellant is the defendant who lost his case before the First Appellate Court.

3. The facts of the case are that the plaintiff/respondent filed a suit for eviction by pleading interalia that the plaintiffs are the owner of house situated in Lakherapura (peergate), Bhopal. One shop situated in the said property is let out to the Appellant on the monthly rent of Rs. 175/-. It was claimed that the suit shop is bonafide required for non- residential purposes of his son Abhay Kumar Garg. The son of the plaintiffs would start the business of cloths and he has the experience of business of clothes. Since, the suit shop in question is small admeasuring 7x13 sq.ft. therefore, the adjoining shop which is in possession of Gyanchand Jain shall also be required. Therefore, the plaintiff would construct one shop after clubbing the shop of Gyanchand Jain also. A suit has also been filed by the plaintiffs against Gyanchand Jain for eviction. The tenancy of the Appellant was terminated by sending registered notice dated 11-2-1989 which was received by the Appellant on 13-2-1989. Thus, the suit was filed for eviction under Section 12(1)(f) of M.P. Accommodation Control Act. It was further pleaded that the Appellant is in arrears of rent and accordingly, the suit was filed for eviction, mesne profits and damages caused to property.

4. The Appellant filed his written statement and denied the plaint averments. It was denied that the Appellant is in arrears of rent. No damage was caused to Weather Board. The bonafide requirement of Abhay Kumar Garg was denied. It was pleaded that Abhay Kumar Garg is already working as a partner with his father in a shop situated in Chowk Bazar, Bhopal. Further, about 6 months back, the legal representatives of another tenant Kannumal Jain have handed over the vacant possession of a godown which is situated on the back side of the shop in question and the said godown is sufficient to cater the need of the plaintiff.

5. The Trial Court, after framing issues and recording evidence, dismissed the suit.

6. Being aggrieved by the Judgment and Decree passed by the Trial Court, the respondents filed an appeal which has been decreed by the First Appellate Court.

7. This Appeal was admitted on the following Substantial Questions of Law :

1. Whether reversing finding of genuine need for commencing new business under Section 12(1)(f) of the M.P. Accommodation Control Act is vitiated for omission to meet the trial Court's reasoning coupled with plaintiff's admission vis-à-vis the case set up in the plaint?

2. Whether the Appellate Court, failed to exercise jurisdiction vested in it in refusing leave to amend the written statement and admission of additional evidence incorporating subsequent event?

8. Challenging the findings recorded by the First Appellate Court, it is submitted by the Counsel for the Appellant that the First Appellate Court should not have reversed the findings of the Trial Court. The respondent has failed to prove the bonafide need of his son for non- residential purposes and the First Appellate Court should have allowed the amendment in the Written Statement.

9. Per contra, the Counsel for the respondents has supported the findings recorded by the First Appellate Court.

10. Heard the learned Counsel for the parties. Whether reversing finding of genuine need for commencing new business under Section 12(1)(f) of the M.P. Accommodation Control Act is vitiated for omission to meet the trial Court's reasoning coupled with plaintiff's admission vis-à-vis the case set up in the plaint?

11. It is the case of the respondents that Abhay Kumar Garg has an experience of business of clothes and it is also accepted by the Appellant that Abhay Kumar Garg is running the shop of his father in a tenanted premises. The Appellant had claimed that Abhay Kumar Garg cannot run his separate business from his father because Abhay Kumar Garg has no time for the same. Merely because Abhay Kumar Garg was sitting in a rented premises in order to assist his father, it cannot be held that Abhay Kumar Garg cannot run his own business in the shop owned by his father. Abhay Kumar Garg (P.W.3) has also stated that he wants to start his own business and claimed that he would construct a new big shop by merging two shops and admitted that the another shop is not vacated, but that doesnot mean that the plaintiffs cannot get the suit shop vacated for the bonafide need of their son for non- residential purpose. The Supreme Court in the case of Akhileshwar Kumar and others Vs Mustaqim and others reported in AIR 2003 SC 532 has held as under :

3. In our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that the plaintiff No. 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. The plaintiff No. 1 and his father both have deposed to this fact. Simply because the plaintiff No. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. What the High Court has overlooked is the evidence to the effect, relied on by the trial Court too, that the husband of plaintiff No. 4, i.e. son-in-law of Ram Chandra Sao, was assisting the latter in his business and there was little left to be done by the three sons.

4. So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No. 2. The suit was compromised and the shop was got vacated. The shop is meant for the business of plaintiff No. 2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodation which have prevailed with the High Court are either not available to the plaintiff No. 1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No. 2, who too is an educated unemployed, should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No. 1 another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the felt need of one of them.

12. The Supreme Court in the case of D. Sasi Kumar Vs. Sundararajan decided on 23-9-2019 in C.A. No. 7546-7547 of 2019 has held as under :

11. Further the High Court has also erroneously arrived at the conclusion that the bonafide occupation as sought should be not only on the date of the petition but it should continue to be there on the date of final adjudication of rights. Firstly, there is no material on record to indicate that the need as pleaded at the time of filing the petition does not subsist at this point. Even otherwise such conclusion cannot be reached, when it cannot be lost sight that the very judicial process consumes a long period and because of the delay in the process if the benefit is declined it would only encourage the tenants to protract the litigation so as to defeat the right. In the instant case it is noticed that the petition filed by landlord is of the year 2004 which was disposed of by the Rent Controller only in the year 2011. The appeal was thereafter disposed of by the Appellate Authority in the year 2013. The High Court had itself taken time to dispose of the Revision Petition, only on 06.03.2017. The entire delay cannot be attributed to the landlord and deny the relief. If as on the date of filing the petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time lapse in the judicial process coming to an end. This Court in the case of Gaya Prasad vs. Pradeep Srivastava, (2001) 2 SCC 604 has held that the landlord should not be penalised for the slowness of the legal system and the crucial date for deciding the bonafide requirement of landlord is the date of application for eviction, which we hereby reiterate.

13. The stand of the Appellant that since, the son of the plaintiffs is assisting his father to run business in another shop which is situated in a rented shop, cannot be a ground to hold that the plaintiff doesnot require suit shop bonafide for non-residential purposes of his son Abhay Kumar Garg.

Whether the Appellate Court, failed to exercise jurisdiction vested in it in refusing leave to amend the written statement and admission of additional evidence incorporating subsequent event?

14. The Appellant had filed applications under Order 6 Rule 17 and Order 41 Rule 27 CPC on the ground that the plaintiffs had filed another suit against Gyanchand which has been dismissed by Judgment and Decree dated 25-1-1996, therefore, even otherwise, the bonafide need of plaintiffs for non-residential purposes would not be fulfilled.

15. The First Appellate Court has rightly rejected the said applications on the ground that the Judgment and Decree passed by the Trial Court is not final. Further in civil suit filed by Gyanchand the trial Court had also considered that the plaintiffs have failed to prove their bonafide requirement for non-residential purpose is this suit. Thus, merely because the trial Court had dismissed another suit will not have any effect in the present case.

16. Accordingly, both the Substantial Questions of Law are answered in negative.

17. Ex consequenti, the Judgment and Decree dated 16-4-1998 passed by IXth Additional District Judge, Bhopal in R.C.A. No. 9A/1996 is hereby affirmed.

18. The Appeal fails and is hereby Dismissed.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2023.02.24 16:10:14 +05'30' HS