Madhya Pradesh High Court
Ram Kishan Sharma Died Through Lrs I) ... vs Pankaj Kumar Ahuja on 3 May, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
-( 1 )- S.A. No. 531 of 2016
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
SECOND APPEAL No. 531 of 2016
BETWEEN:-
RAM KISHAN SHARMA (DEAD) THROUGH LRS
SMT. LAKSHMI DEVI SHARMA W/O SHRI RAMKRISHAN SHARMA,
1. AGED ABOUT 72 YEARS, OCCUPATION :- HOUSE WIFE, R/O
CHITNISH KI GOTH, LASHKAR, DIST. GWALIOR (MADHYA
PRADESH)
SHYAM SHARMA S/O LATE SHRI RAMKRISHAN SHARMA, AGED
2. ABOUT 44 YEARS, OCCUPATION: NIL R/O CHITNISH KI GOTH
LASHKAR, DISTRICT GWALIOR (MADHYA PRADESH)
.....APPELLANT/PLAINTIFF
(SHRI SANTOSH AGRAWAL, LEARNED COUNSEL FOR THE LRS OF THE
APPELLANT)
AND
PANKAJ KUMAR AHUJA S/O LATE SHRI VISHANDAS AHUJA, AGED
1. ABOUT 35 YEARS, B-8, SAMADHIA COLONY, LASHKAR, DIST.
GWALIOR (MADHYA PRADESH)
RAJESH AHUJA S/O LATE VISHANDAS AHUJA, AGED ABOUT 44
2. YEARS, B-8, SAMADHIA COLONY, LASHKAR, DIST. GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS/DEFENDANTS
(SHRI ANAND VINOD BHARDWAJ, LEARNED COUNSEL FOR THE
RESPONDENT [R-1].
Whether approved for reporting :- Yes / No.
Reserved for judgment on : 22/04/2024
_____________________________________________________
This appeal coming on for pronouncement of judgment on this day,
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 06-05-2024
10:37:18 AM
-( 2 )- S.A. No. 531 of 2016
the court passed the following:
JUDGMENT
(Passed on 03/05/2024)
1. This Second appeal under Section 100 of Civil
Procedure Code (for brevity, CPC) has been filed by the
appellant/plaintiff against the impugned judgment and
decree dated 14/10/2016 passed by Court of Tenth
Additional District Judge, Gwalior in Civil Appeal No.
13/2015, by which, the Judgment and decree dated
05/11/2015 passed by 3 r d Civil Judge, Class - 1, District
Gwalior in Civil Suit No. 36-A/2014 has been set aside.
2. The necessary facts for disposal of the present appeal,
in short, are that the original plaintiff Ramkishan Sharma
(since dead) filed a civil suit seeking eviction against the
defendants/respondents on the ground of sections 12(1)(a),
(b), (f), (h) of M.P. Accommodation Control Act 1961 in
respect to the shop shown as red oblique lines in plaint map
situated in the building bearing municipal number 39/593
New number 57/593 surrounded by in the East: Joint House,
West: Road Madhavganj, North: House Panchayati (Oswal),
South: Shop of Deeptilal.
3. It was the case of plaintiff that father of defendant i.e.
Vishandas S/o Khaturam was the tenant in the disputed shop
@ Rs. 865/- per month. It is also pleaded that vide rent
note dated 15.04.1979 father of plaintiff became tenant @
Rs. 225/- per month, thereafter, rate of rent was enhanced
upto Rs. 865/- per month.
4. It was the case of plaintiff that defendant has paid rent
upto 14.12.2007 thereafter despite of demand so also by
way of registered notice dated 07.07.2008, 10.05.2009, and
11.05.2009 defendants did not pay rent.
5. It was also the case of plaintiff that defendant has
inducted sub tenant ie. Satram Chhabada without the
consent of plaintiff and Satram Chhabada is doing his cloth
business.
6. It is also pleaded that plaintiff is going to retire from
the service, hence, he has bonafide need as he will start
business in the disputed shop along with shop adjoining to
it, for which, he has no alternative accommodation in the
town.
7. It is also pleaded that house is of 100 years old and is
in delapidated condition hence plaintiff want to get it
repaired and filed suit seeking eviction and arrears of rent.
8. The defendants filed written statement and denied the
plaint allegations, and asserted that defendants are tenant @
Rs.600/- per month in the shop owned by Temple by way of
amendment in para no. 2A of the written statement, it is
asserted that owner of the disputed property is Bade Wale
Hanuman ji, and the temple is of Government, but
Government has not been impleaded as party.
9. By way of special plea it is asserted that the
provisions of M.P. Accommodation Control Act are not
applicable and suit has been filed just to harass the
defendants.
10. The plaintiff filed rejoinder to rebut the objection in
regard to ownership of plaintiff, plaintiff pleaded that one
part of disputed property got by grandfather through Patta
dated 08.03.1894 and other part by sale deed dated
07.04.1923 and 09.02.1921 from Jagannath S/o Ishari,
hence, plaintiff predecessor was owner of the property, and
it was never belongs with temple, Mangilal grandfather of
plaintiff executed will in his favour on 19.10.1967 on the
basis of will plaintiff become exclusive owner of disputed
property.
11. The defendants having been tenant and paid the rent
to plaintiff, but denied title of plaintiff, hence plaintiff also
amended his plaint in regard to ground under section 12(1)
(c) of M.P. Accommodation Control Act 1961.
12. On the basis of pleadings, learned trial court framed
the issues and after recording evidence held that defendants
are tenant of plaintiff @ Rs. 865/- per month. It is also
held that despite demand defendants did not pay the arrears
of rent but during pendency of suit deposited, and it is also
held that plaintiff is entitled for alteration of shop for which
plaintiff has need of shop, and also held that plaintiff has
bonafide need for his own and also held that plaintiff is
owner of the disputed property and decreed the suit vide
judgment and decree dated 05.11.2015 on the ground of
12(1) (f) and (h) of M.P. Accommodation Control Act 1961.
The decree of trial court was challenged by the defendant
no.2 Pankaj Kumar Ahuja only.
13. The learned appellate court vide impugned judgment
dated 14.10.2016 allowed appeal by setting aside the
judgment and decree of eviction, hence, being aggrieved by
impugned judgment and decree instant appeal is being filed
by the appellant/plaintiff.
14. Learned counsel for the appellant/plaintiff submits that
the respondent did not show any alternative accommodation
which may be suitable for the plaintiff to satisfy his need
nor shown said so called shops to be exclusive ownership of
the plaintiff even the appellate court has reversed the well
reasoned judgment passed by trial court, whereby, trial
court granted decree for eviction under section 12(1) (f) and
(h) of MP Accommodation Control Act 1961.
15. Learned counsel for the appellant/plaintiff further
submits that the disputed shop, having been constructed
more than 100 years back and the plaintiff wants to rebuild
it by making certain alteration for which the plaintiff
specifically pleaded in his plaint and the same was not
specifically denied by the defendant, even then the
appellate court is not justified in reversing the judgment
passed by trial court under section 12(1) (h) of the M.P.
Accommodation Control Act 1961.
16. Learned counsel for the appellant/plaintiff further
submits that the appellate court failed to understand the
settled law that landlord is the best judge of his own need
and the tenant cannot dictated or directed to satisfy the need
of landlord and the choice of landlord must be honoured.
17. Learned counsel for the appellant/plaintiff further
submits that the appellatę court even by passing long drawn
judgment and also considering that the defendant even
being tenant has raised objection in regard to ownership of
plaintiff which certainly cause serious prejudice to the
plaintiff even then has allowed the appeal ignoring the
settled position of law that landlord is the best judge of his
own need and his choice cannot be ignored.
18. Learned counsel for the appellant/plaintiff further
submits that once on the basis oral and documentary
evidence trial court by giving cogent finding granted degree
for eviction, the appellate court should not interfere in the
finding of fact, but appellate court exceeding its power and
without reversing and discussing the finding of trial court
has passed its own judgment which is totally unjustified.
19. Learned counsel for the appellant/plaintiff further
submits that it is well settled that though the M.P.
Accommodation control Act is provided to protect the
unjustified eviction of tenant, but simultaneously it is also
beneficial to the landlord and rights of landlord has not
been curtailed under this act, hence, the owner/landlord
cannot be denying to use his property as per his own choice
so also make alteration and justifiable changes.
20. Learned counsel for the appellant/plaintiff further
submits that provision under seçtion, 12(1) (h) of M.P.
Accommodation Control Act does not provide any
requirement of prior permission from Municipal
Corporation, hence, in absence of it, the decree for eviction
under section 12(1) (h) of M.P. Accommodation Control Act
cannot be denied.
21. On the other hand, learned counsel for the
respondents/defendants supported the impugned judgment
and decree passed by the court below and prayed for
dismissal of the instant appeal being bereft of merit and
substance.
22. Heard learned counsel for the rival parties and perused
the material available on record.
23. This second appeal has been admitted on the following
substantial questions of law:
"(1) Whether the Appellate Court erred in
reversing the findings of the trial Court given
for eviction of decree under section 12 (1) (f)
and (h) of the M.P. Accommodation Control
Act, 1961 ?
(2) Whether the Appellate Court erred in
reversing the finding in respect of Section 12
(1) (h) of the M.P. Accommodation Control Act,
1961 while keeping the old house at par with
dilapidated structure under the Madhya
Pradesh Municipal Corporation Act, 1956.
(3) Whether the Appellate Court erred in
denying the decree for eviction to the appellant
despite satisfying the bonafide need for the
purpose of business activities."
24. To prove the ground of bonafide requirement for
eviction under section 12(1)(f) of M.P. Accommodation
Control Act, the following ingredients need to be proved by
the plaintiff :-
"12. Restriction on eviction of tenants. -(1) xxxxxxxxxxx
(a) to (e) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(f) that the accommodation let for non-residential purposes
is required bonafide by the landlord for the purpose of
continuing or starting his business or that of any of his
major sons or unmarried daughters if he is the owner thereof
or for any person for whose benefit the accommodation is
held and that the landlord or such person has no other
reasonably non-residential accommodation of his own in
his occupation in the city or town concerned."
25. The original plaintiff - Ramkrishna Sharma (since
dead) has examined himself as PW-1 as well as has
examined PW/2-Narsingdas Sharma, PW/3-Shyam Sharma
and PW/4 -Ashok Kumar Sharma to prove his case.
26. On the other hand, defendants examined DW/1- Pankaj
Kumar Ahuja, DW/2- Ramchandra Ahuja and DW/3-
Ramesh Chandra Sharma.
27. On the basis of pleadings adduced by plaintiff and
defendants, learned trial court as well as learned appellate
court has given concurrent findings that plaintiff
Ramkrishna Sharma has bonafide requirement of the
disputed shop for opening his own business after retirement.
The aforesaid findings in respect to the bonafide
requirement of original plaintiff - Ramkrishna Sharma is
based on proper appreciation of evidence adduced by both
the parties.
28. In second appeal concurrent findings based on oral as
well as documentary evidence until found to be perverse
cannot be reversed. On the basis of evidence of plaintiff and
defendants learned courts below have rightly held that
original plaintiff - Ramkrishna Sharma has bonafide
requirement of the disputed shop for his own business.
Now the question arises whether alternative accommodation
for the aforesaid purpose is available to the plaintiff or not?
29. Perusal of the record reveals that on the point of
availability of alternative accommodation, learned trial
court held that the plaintiff has no alternative
accommodation for the purpose of opening his business.
However, learned first appellate court reversed the findings.
The oral as well as documentary evidence reflect that
another eviction case in respect to the shop adjacent to the
disputed shop owned by the plaintiff had also been pending
and the decree was passed in his favour. The same fact has
been corroborated by Ex.-P-62, the judgement passed in
second appeal. The original plaintiff - Ramkrishna Sharma
has in his court evidence stated that he is having a building
in Chitnis Ki Goth having three shops in it and his son and
brothers were doing their businesses in these shops. PW/3-
Shyam Sharma in his cross examination has also
corroborated the fact that plaintiff is having three other
shops. Thus the statement of DW/1- Pankaj Kumar Ahuja is
found to be reliable that the original plaintiff - Ramkrishna
Sharma was having other shops apart from the disputed
shop and he knowingly and malafidely did not file any
details in respect to the shops owned by him.
30. In view of the above, learned trial court wrongly
disbelieved that the plaintiff has no alternative suitable
accommodation for doing the business because as discussed
above, the plaintiff and his witnesses admitted that apart
from the disputed shop other shops are also available with
the plaintiff. This is not the case where plaintiff has pleaded
alternative accommodation available to him and first
appellate court has directed to choose particular shop,
therefore, case law cited by the appellant namely Ramlal
deceased through Lrs vs. Ashok Kumar reported in 2014
(4) MPJR 34, Dinesh Kumar vs. Yusuf Ali reported in
AIR 2010 SC 2679, R.C. Tamrekar vs. Nidhi Lekha
reported in AIR 2001 SC 3806 and Ragvendra Kumar Vs.
Firm Prem Machinery Company reported in AIR 2000
SC 534 do not help him. In this case, the landlord-plaintiff
deliberately did not disclose availability of alternative
accommodation to him.
31. In the case of Sri Kempaiah vs Lingaiah & Ors.
reported in (2001) 8 SCC 718 , the Apex Court
distinguished the element of "requirement and desire" and
held as under:-
"8. Though it was pleaded that the appellant was
under compulsion to vacate the premises under his
occupation as his landlord was inisisting to vacate
the same, yet no evidence was led in that behalf. It
may have been a wish or desire of the appellant to
occupy the leased premises but he failed to prove the
reasonable bonafide requirement as contemplated
under Section 21(1)(h) of the Act. The word "require"
used in clause (h) of sub-clause (1) of Section 21 of
the Act implies something more than a mere wish or
impulse or desire on the part of the landlord.
Although the element of need is present in both the
cases, the real distinction between "desire" and
"require" lies in the insistence of the need. There is
an element of "must have" in the case of "require"
which is not present in the case of mere "desire". The
ground mentioned in clause (h) of Sub-section (1) of
Section 21 of the Act emphasizes to the genuineness
of the requirement of the landlord. The term
"reasonable and bonafide requirement" are
complementary and supplementary to each other in
the context. Dealing with a similar provision under
the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, this Court in Dattatraya Laxman
Kamble v. Abdul Rasul Moulali Kotkunde & Anr.
[1999 (4) SCC 1] held that when the Legislature
employed the two terms together the message to be
gathered is that requirement must be really genuine
from any reasonable standard. Where eviction is
sought on the aforesaid ground, a duty is cast upon
the court to satisfy itself with the alleged requirement
of the landlord. Even in a case where the tenant does
not contest or dispute the claim of the landlord and
the tenancy is governed by the Rent Control
legislation, the court is obliged to look into the claim
independently and give a specific finding in that
regard."
32. In the case of Deena Nath vs. Pooran Lal reported in
(2001) 5 SCC 705, the Apex Court has held that the criteria
that the landlord has no other reasonable suitable non-
residential accommodation of his own in his occupation in
the city or town concerned is not available has to be
fulfilled.
33. In view of the above discussion, learned first appellate court has
not erred in holding that the plaintiff failed to prove that he is not
having suitable alternative accommodation to start his business.
34. In this case, the original plaintiff - Ramkrishna Sharma
died on 23/01/2022 during pendency of this appeal and his
legal representatives have not sought any amendment in the
plaint in respect to their bonafide requirement of the
disputed shop. This is not the case of plaintiff that apart
from him his son or other family members also need the
disputed shop for business.
35. In the case of Pasupuleti Venkateswarlu vs. Motor and
General Traders reported in 1975 Legal Eagle (SC) 125, the Apex
Court held as under :-
"Order 7, Rule 7 Subsequent event Consideration of
Subsequent event brought promptly to the notice of
Court must be considered. It is basic to our
processual jurisprudence that the right to relief must
be judged to exist as on the date a suitor institutes the
legal proceeding. Equally clear is the principle that
procedure is the handmaid and not the mistress of the
judicial process. If a fact, arising after the lis has
come to court and has a fundamental impact on the
right to relief or the manner of moulding it, is brought
diligently to the notice of the tribunal, it cannot blink
at it or be blind to events which stultify or render
inept the decretal remedy. Equity justifies bending the
rules of procedure, where no specific provision or
fairplay is violated, with a view to promote
substantial justice subject, of course, to the absence
of other dis entitling factors or just circumstances.
Nor can we contemplate any limitation on this power
to take note of updated facts to confine it to the trial
Court. If the litigation pends, the power exists, absent
other special circumstances repelling resort to that
course in law or justice."
36. In the case of Hasmat Rai vs. Raghunath Prasad reported in
1981 Legal Eagle (SC) 282, the Apex Court held as under :-
"Therefore it is indisputable that the decree or order
for eviction referred to in the definition of tenant must
mean final decree or final order of eviction. Once an
appeal against decree or order of eviction is
preferred the appeal being a continuation of suit,
landlord's need must be shown to continue to exist at
appellate stage. If the tenant is in a position to show
that the need or requirement no more exists because
of subsequent events, it would be open to him to point
out such events and the Court including the appellate
court has to examine, evaluate and adjudicate the
same. Otherwise the landlord would derive an unfair
advantage."
The Apex court in the light of case of
Venkateswarlu (supra) further observed "We affirm
the proposition that for making the right or remedy
claimed by the party just and meaningfully as also
legally and factually in accord with the current
realities, the court can, and in many cases must, take
cautions cognizance of events and development
subsequent to the institution of the proceeding
provided the rules of fairness to both sides are
scrupulously observed."
37. In the case of Baldev Krishan vs. Satya Narain reported in
(2013) 14 SCC 179, the Apex Court held as under :-
"12. In Sheshambal, the bonafide need that had been
pleaded pertained only to the landlord and his wife. It
will be relevant to record that the claim had been
concurrently rejected by the courts below, before
when the landlord husband had passed away. The
widow whose bona fide need had also been set up,
unfortunately, also passed away during the pendency
of the appeal in this Court. In those circumstances, it
was held that the bonafide need, even assuming that it
existed at the time of fling of the eviction action, had
thereafter lapsed altogether on the death of the
petitioning protagonists. It seems to us that it is
arguable that the position may change had there been
a favourable verdict during their lifetime. The
premium should not be placed on the filing of appeals
merely to defeat a favourable decision on the unfair
speculation that the endemic delay in disposal of
appeals may result in defeating a decree because of
the death of the landlord."
38. In view of the above settled principle of law while examining
this case as discussed above, it is apparent that the suit was filed only
for bonafide requirement of the original plaintiff - Ramkrishna
Sharma and his suit was decreed by learned trial court,
however, the judgment and decree of the trial court has been
set aside by the first appellate court in Civil Appeal No.
13/2015 by judgment and decree dated 14/10/2016. Thus, it
is clear that when original plaintiff - Ramkrishna Sharma
died he was not having decree of eviction in his favour,
therefore, the decree of eviction on the ground of bonafide
need cannot be granted in favour of legal representative of
original plaintiff - Ramkrishna Sharma (since dead) as they
have not amended the plaint or came forward with a prayer
that the disputed shop is required bonafidely for their
businesses. In view of above, decree of eviction can not be
granted on the ground of bonafide need.
39. The plaintiff has filed suit for eviction on the grounds of section
12(1)(h) of M.P. Accommodation Control Act also. As per statement
of original plaintiff- Ramkrishna Sharma the disputed shop
is situated is 150 years old and is in dilapidated condition.
The Municipal Corporation has issued notice under section
310 of Municipal Corporation Act. However, the plaintiff
failed to prove the said notice by filing original notice or
by examining any witness from the Municipal Corporation.
It is not in dispute that the said building is still in
existence.
40. By filing I.A. No. 1255/2023, an application for
urgent hearing, appellant filed a photo copy of the notice
received from the Municipal Corporation, Gwalior dated
07/06/2022 alleging that the Municipal Corporation is
threatening to demolish the said building. This fact also
reveals that for almost 12 years, no notice was given by the
Municipal Corporation neither any action has been taken
under section 310 of Municipal Corporation Act, which
reads thus :-
"310. Removal of buildings in dangerous state.-(1) If, in the
opinion of the Commissioner, any building, wall, structure
including under this expression any building, wall, parapet
pavement, floor, steps, railings, door or window-frames or
shutters or roof or other structure and anything affixed to or
projecting from or resting on any building, wall, parapet or
other structure, or any tree standing thereon, is in dangerous
state, the Commissioner may by a notice in writing, require the
occupier or owner thereof forthwith either to demolish or remove
the building, wall, structure or any such tree or cause such
repairs to be made thereto as he considers necessary for the
public safety, and if the danger appears to him to be imminent,
he may forthwith take such steps as may be required to avert
such danger, including the forcible removal without notice from
such building of all the occupiers thereof and their property.
(2) Any expenses incurred by the Commissioner under sub
section (1) shall be paid by the building, wall, structure, or
anything affixed thereto.
(3) Except with the permission in writing of the Commissioner
no person shall without sufficient cause enter into or remain in
any building from which the occupier and his property has been
removed under sub-section (1)."
41. Under these circumstances, only on the basis of the photocopy
of notice alleged to have sent by the Municipal Corporation it is not
proved that the disputed shop is 150 years old and in a dilapidated
condition because if the shop was in such a bad condition then the
Municipal Corporation ought to have acted as per provision of
Section 310 of the Municipal Corporation Act. Therefore, learned
first appellate court has rightly held that the plaintiff has failed to
prove that disputed shop is situated is in a dilapidated condition.
42. In this case, the learned trial court has failed to comply with the
provisions of section 18 of M.P. Accommodation Control Act, which
reads thus :-
"18. Recovery of possession for repairs and re-building and
re-entry (1) In making any order on the grounds specified in
clause (g) or clause (h) of sub- section (1) of section 12, the
Court shall ascertain from the tenant whether he elects to be
placed in occupation of the accommodation or part thereof from
which he is to be evicted and, if the tenant so elects, shall record
the fact of the election in the order and specify therein the date
on or before which he shall deliver possession so as to enable the
landlord to commence the work of repairs or building or re-
building, as the case may be.
(2) If the tenant delivers possession on or before the date
specified in the order, the landlord shall, on the completion of
the work of repairs or building or re-building place the tenant in
occupation of the accommodation or part thereof, as the case
may be, within one month of the completion of such work.
(3) If, after the tenant has delivered possession on or before the
date specified in the order, the landlord fails to commence the
work of repairs or building or rebuilding within one month of the
specified date or fails to complete the work in a reasonable time
or having completed the work, fails to place the tenant in
occupation of the accommodation in accordance with sub-
section (2), the Court may, on an application made to it in this
behalf by the tenant within such time as may be prescribed, order
the landlord to place the tenant in occupation of the
accommodation or part thereof or to pay to the tenant such
compensation as the Court thinks fit."
43. In view of the above discussion, the substantial questions of law
are answered in negative.
44. Consequently. the instant appeal being bereft of merit and
substance is hereby dismissed.
(SUNITA YADAV)
JUDGE
Durgekar*
