Madhya Pradesh High Court
Harpal Sindhi vs Vicharnath Gupta on 18 August, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
SA No.693/2008
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No. 693 of 2008
HARPAL SINDHI (DEAD) THR. LRS. DHARAMDAS & ORS.
Versus
VICHARNATH GUPTA (DEAD) THR. LRS. NEEL DEVI GUPTA & ORS.
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Appearance
Shri R.S. Jaiswal - Senior Advocate with Shri Rajmani Sharma - Advocate
for the appellants.
Shri Divesh Jain - Advocate for respondents.
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Reserved on : 07.08.2025
Pronounced on : 18.08.2025
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JUDGMENT
This second appeal is preferred by the original appellant/defendant
Harpal Sindhi (now dead, thr. LRs.) challenging the judgment and decree dated
25.04.2008 passed by Third Additional District Judge (Fast Track Court), Katni
in civil appeal No.26-A/2007 affirming the judgment and decree dated
12.04.2007 passed by Fourth Civil Judge Class-I, Katni, in civil suit No.266-
A/2006, whereby plaintiff's suit for eviction of rented shop as well as arrears of
rent has been decreed on the ground of bonafide requirement available under
Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (in short 'the
Act').
2. Facts in short are that the respondent/plaintiff had instituted a suit for
eviction on the ground of his personal requirement of the disputed shop with the
allegation that the defendant/appellant is his tenant in the shop on rent of
Rs.300/- and the shop is needed for starting retail oil business by him as well as
by his wife. It is alleged that at present the plaintiff is doing readymade clothes
business in one shop and for improvement in the business the suit shop is
needed and there is no other suitable alternative vacant accommodation
available in the township of Katni. On inter alia allegations the suit was filed.
3. The defendant appeared and filed written statement denying the
plaint averments and contended that the plaintiff is not in need of the suit shop
for himself and his wife as he is already in possession of other alternative
accommodation to satisfy his need. On inter alia contentions the suit was prayed
to be dismissed.
4. On the basis of pleadings of the parties trial court framed issues and
recorded evidence of the parties and upon due consideration of the entire
material available on record decreed the suit for eviction on the ground of
bonafide requirement available under section 12(1)(f) of the Act vide judgment
and decree dtd.12.04.2007 by holding the need of the plaintiff and his wife to be
genuine. Against which the appellant/defendant preferred regular civil appeal
which was also dismissed by the impugned judgment and decree dated
25.04.2008. Against which instant second appeal was preferred and was
admitted for final hearing on 02.07.2008 on the following substantial questions
of law :
"i. Whether under Section 12(1)(f) of M.P. Accommodation Control Act the
house can be got vacated for the need of spouse or for the need of both the
spouses and inclusion of the need of plaintiff along with his wife was only a
pretext to get the house vacated ?
ii. Whether under the facts and circumstances of the case the plaintiff had got
sufficient alternative accommodation in the same market and keeping the 3
shops vacant without using them after getting them vacated, the need of the
plaintiff in regard to the suit accommodation was neither genuine nor bona
fide ?"
5. Learned counsel for the appellants/defendants submits that both the
Courts below have committed an illegality in holding that the plaintiff-
Vicharnath Gupta is in need of the suit shop and without considering the fact
that need of the spouse of landlord is not covered under Section 12(1)(f) of the
Act, committed an illegality in decreeing the suit and has also committed
illegality in holding that there is no other vacant alternative suitable
accommodation available with the plaintiff to start the alleged business. He
submits that although the suit of the plaintiff has been decreed by the courts
below, but during pendency of the second appeal the plaintiff-Vicharnath Gupta
and his wife-Smt. Neel Devi Gupta both have died, therefore, the need, if any,
has come to an end. He submits that in the aforesaid circumstances the son of
original plaintiff-Vicharnath Gupta, namely Ashok Kumar Gupta has also filed
an application under Order VI Rule 17 of CPC alleging his need of the suit shop
with the prayer for remanding the matter, therefore, in any case the judgment
and decree passed by courts below deserve to be set aside and matter deserves
to be remanded for fresh trial. With these submissions he prays for allowing the
second appeal.
6. Learned counsel appearing for the LRs of original plaintiff, supports the
impugned judgment and decree passed by Courts below and prays for dismissal
of second appeal with the further submissions that Courts below have upon due
consideration of the entire material available on record, rightly decreed the suit
holding the need of original plaintiff and his wife to be genuine and that there is
no other alternative suitable vacant accommodation available with them to start
the business. He further submits that these findings are pure findings of facts
and are not liable to be interfered with within the limited scope of second appeal
provided under section 100 of CPC. He also submits that even if the original
plaintiff and his wife have died, the same does not affect the matter adversely,
because the son of plaintiff, namely Ashok Kumar being retired/unemployed is
still in need of the suit shop and is entitled to execute the decree. In support of
his submissions he placed reliance on the decisions of Hon'ble Supreme Court
in the case of Shakuntala Bai and Ors. Vs. Narayan Das and Ors., (2004) 5 SCC
772; and D. Sasi Kumar vs. Soundararajan, (2019) 9 SCC 282. With these
submissions he prays for dismissal of second appeal.
7. Heard learned counsel for the parties and perused the record.
8. In the case of Badrilal vs. Sitabai, 2011 (1) MPLJ 682 a Full Bench of
this Court, has already overruled the decision given by a Division Bench of this
Court in the case of Nandkishore v. Sarjudevi, 1974 MPLJ 293 and impliedly
held that the landlord can file suit for the need of his spouse also. Relevant
paragraph of Badrilal's case is quoted as under :-
"30. Thus in view of above interpretation of S. 12(l)(f) of the M.P. Act, we hold that the
earlier Division Bench judgment of this Court in the matter of Nandkishore (supra) laying
down that right of eviction in respect of non-residential accommodation under S. 12(l)(f) of
the M.P. Act is restricted to the landlord for his own business and there is no scope for a
liberal interpretation of the phrase "his business" so as to include the business of spouse, is no
longer a good law."
9. In view of aforesaid legal position, the substantial question of law number
1 formulated by this Court, has lost its importance, resultantly it can be said that
the substantial question of law no. 1 does not arise in the instant second appeal.
10. So far as the legality of the findings recorded by Courts below regarding
bonafide need of plaintiff-Vicharnath Gupta and his wife is concerned, both the
courts below have upon due consideration of the oral and documentary evidence
available on record held that the plaintiff as well as his wife are in need of the
suit shop and there is no other alternative suitable vacant accommodation
available with them in the township of Katni and decreed the suit.
11. In support of the contention of availability of alternative accommodation,
the defendant has tried to show two small rooms and one Galiyara (corridor),
which are situated at the rear of suit shop and the plaintiff's shop, therefore,
cannot be termed as alternative suitable accommodation.
12. Upon close scrutiny of the entire oral and documentary evidence coupled
with the findings recorded by Courts below in paragraphs 18 to 31 (trial Court)
and 12 to 15 (first appellate Court), this Court does not find any alternative
suitable vacant shop/accommodation in possession of the landlord, as has been
indicated in the formulated substantial question of law no.2.
13. In the case of Kishore Singh vs. Satish Kumar Singhvi, 2017(3) JLJ 375,
a coordinate Bench of this Court has relied upon the decision of Hon'ble
Supreme Court in the case of Ragavendra Kumar vs. Firm Prem Machinery and
Company, AIR 2000 SC 534, and held that the findings recorded on the
question of bonafide requirement do not give rise to any substantial question of
law.
14. In view of the aforesaid legal position and upon due consideration of the
entire material available on record this court does not find any illegality or
perversity in the pure findings of facts, recorded by Courts below which are not
liable to be interfered with within the limited scope of second appeal provided
under section 100 of CPC. Accordingly, the substantial question of law no. 2 is
decided against the appellants/defendants.
15. Now the next question is as to whether after death of the plaintiff-
landlord and his wife, their son Ashok Kumar Gupta, who by filing application
under Order VI Rule 17 of CPC (I.A. No.6679/2025), has proposed his need to
start business in the shop, can be permitted to execute the decree even without
further enquiry about his proposed need, because bonafide need is to be seen on
the date of filing of the suit.
16. Almost similar controversy arose before Hon'ble Supreme Court in the
case of Shakuntala Bai (supra), then the Hon'ble Supreme Court held as under:
"11. In Shantilal Thakordas v. Chimanlal Maganlal Telwala, 1976 (4) SCC 417, a larger
Bench overruled the decision rendered in Phool Rani v. Naubat Rai Ahluwalia, 1973 (1) SCC
688, in so far it held that the requirement of the occupation of the members of the family of
the original landlord was his personal requirement and ceased to be the requirement of the
members of his family on his death. The Court took the view that after the death of the
original landlord the senior member of his family takes his place and is well competent to
continue the suit for eviction for his occupation and occupation of the other members of the
family. Thus, this decision held that the substituted heirs of the deceased-landlord were
entitled to maintain the suit for eviction of the tenant. The ratio of this decision by larger
Bench does not in any manner affect the view expressed in Phool Rani (supra) that where the
death of the landlord occurs after a decree for possession has been passed in his favour,
his legal representatives are entitled to defend further proceedings like an appeal and
the benefit accrued to them under the decree. In fact, the ratio of Shantilal Thakordas
(supra) would reinforce the aforesaid view. There are several decisions of this court on the
same line. In Kamleshwar Prasad v. Pradumanju Agarwal, 1997 (4) SCC 413, it was held that
the need of the landlord for premises in question must exist on the date of application for
eviction, which is the crucial date and it is on the said date the tenant incurred the liability of
being evicted therefrom. Even if the landlord died during the pendency of the writ
petition in the High Court, the bona fide need cannot be said to have lapsed as the
business in question can be carried on by his widow or any other son. In Gaya Prasad v.
Pradeep Srivastava 2001 (2) SCC 604-it was held that the crucial date for deciding as to the
bona fides of requirement of landlord is the date of his application for eviction. Here the
landlord had instituted eviction proceedings for the bona fide requirement of his son who
wanted to start a clinic. The litigation continued for a long period and during this period the
son joined Provincial Medical Service and was posted at different places. The subsequent
event i.e. the joining of the service by the son was not taken into consideration on the ground
that the crucial date was the date of filing of the eviction petition. Similar view has been taken
in G. C. Kapoor v. Nand Kumar Bhasin, 2002 (1) SCC 610. Therefore the legal position is
well settled that the bona fide need of the landlord has to be examined as on the date of
institution of proceedings and if a decree for eviction is passed, the death of the landlord
during the pendency of the appeal preferred by the tenant will make no difference as his
heirs are fully entitled to defend the estate.
12. The High Court in the present case no doubt noticed the decisions rendered in Phool Rani
(supra) and Shantilal Thakordas (supra), but chose to rely upon a decision by two-Judge
Bench rendered in P. V. Papanna v. K. Padmanabhaiah. 1994 (2) SCC 316. In this case the
trial Court had passed decree for eviction which was challenged by the tenant by filing a
revision in the High Court which was dismissed but four years' time was granted to vacate the
premises. The special leave petition preferred by the tenant was also dismissed. During the
pendency of this period of four years, the landlord died leaving a Will in favour of his
brothers. When the tenant did not vacate the premises after expiry of four years, the
appellants applied for execution of the decree. The execution petition was allowed by the
trial Court and order for eviction was passed but the order was reversed by the High
Court in a revision filed by the tenant on the ground that the cause of action did not
survive on the death of the landlord and the appellants (legatees - claiming as legal
representatives of the deceased-landlord) could not execute the decree for eviction which
was purely personal. After examining several earlier decisions, the Court held as under :
"18. For the foregoing discussion, we must hold that events which take place
subsequent to the filing of an eviction petition under any Rent Act can be taken into
consideration for the purpose of adjudication until a decree is made by the final Court
determining the rights of the parties but any event that takes place after the decree
becomes final cannot be made a ground for reopening the decree. The finality to the
dispute culminating in the decree cannot be re-opened by the executing Court for re-
adjudication on the ground that some event or the other has altered the situation. As a
corollary thereto it must also be held that once the decree becomes final it
became a part of the estate of the landlord and, therefore, the appellants as legal
representatives of the deceased-landlord are entitled to execute the same."
13. The limited question for consideration in this case was whether a decree which had
attained finality would become unexecutable on account of death of the landlord and
this question was answered in favour of the landlord and against the tenant basically on
the principle that the executing Court cannot go behind the decree. For the decision of
the appeal it was wholly unnecessary to examine the question as to the effect of death of the
landlord during the pendency of the appeal preferred by the tenant after a decree for eviction
has been passed. The decisions rendered in Phool Rani (supra) and Shantilal Thakordas
(supra) were not brought to the notice of the Bench. We are, therefore, of the opinion that
the observations made in the aforesaid case that "events which take place subsequent to
the filing of an eviction petition under any Rent Act can be taken into consideration for
the purpose of adjudication until a decree is made by the final Court determining the
rights of the parties", which are more in the nature of obiter do not represent the
correct legal position.
14. Sub-section (1) of Section 12 of the Act says "no suit shall be filed in Civil Court against
a tenant for his eviction........" The language employed does not say "no decree shall be
passed..........." So the bar created is against filing of the suit except on one of the grounds
enumerated in clauses (a) to (p) of the sub-section. Therefore what is to be seen is whether the
suit was validly filed i.e. whether on the date of filing of the suit one of the grounds was made
out. A suit validly filed cannot be scuttled or held no longer maintainable in absence of any
specific provision to that effect. Therefore, the principle that "the need of the landlord
must exist till the decree for eviction is passed by the last Court and attains finality" can
even otherwise have no application here in view of the express language used in the
section.
15. As the preamble shows the Madhya Pradesh Accommodation Control Act, 1961 has been
enacted for expeditious trial of eviction cases on the ground of bona fide requirement of
landlords and generally to regulate and control eviction of tenants. If the subsequent event
like the death of the landlord is to be taken note of at every stage till the decree attains
finality, there will be no end to litigation. By the time a second appeal gets decided by the
High Court, generally a long period elapses and on such a principle if during this period the
landlord who instituted the proceedings dies, the suit will have to be dismissed without going
into merits. The same thing may happen in a fresh suit filed by the heirs and it may become
an unending process. Taking into consideration the subsequent events may, at times, lead to
rendering the whole proceedings taken infructuous and colossal waste of public time. There is
no warrant for interpreting a Rent Control legislation in such a manner the basic object of
which is to save harassment of tenants from unscrupulous landlords. The object is not to
deprive the owners of their properties for all times to come."
17. Similar view has been reiterated by Hon'ble Supreme Court in the case of
D. Sasi Kumar (supra), 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 the 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."
(ii) In the case of Keshav Bhaurao Yeolo (D) By LRS. V. Muralidhar (D) &
Ors., AIR 2023 SC 5477 also, the Hon'ble Supreme Court has held as under :
"29. We do not think that the High Court was correct in remanding the case, in its entirety to
the original authority on the ground that the landlord having died pending eviction
proceedings, his heirs had to demonstrate afresh, the bonafide requirement of leased lands for
personal cultivation. In Gaya Prasad v. Pradeep Srivastava, this Court, while considering an
eviction petition filed by the landlord against his tenant, laid down the principle that the
crucial date for deciding the bona fides of the requirement of the landlord is the date of his
application for eviction. Events occurring subsequent to this date have no bearing on the issue
as to whether the eviction was a bona fide requirement. It was reasoned therein that if every
subsequent development was to be accounted for in the post-petition period, there would
perhaps be no end so long as the unfortunate situation in the litigative slow-process system
subsists. Therefore, the High Court fell into grave error in ordering remand of the case by
considering, events which occurred subsequent to the date of filing of the petition."
(iii) Placing reliance on the decision of Hon'ble Supreme Court in the case of
Shakuntala Bai (supra), a Division Bench of this Court also, in the case of
Leelawatibai (D) Thr. LRs. Mahendra Kumar and Ors. v. Radhakishan (D) Thr.
LRs. Smt. Sajjanbai & Ors., AIR 2011 MP 126, held as under :
"29. In the result, we answer the reference in the following manner :
(1) In an application for eviction by landlord of specified category under Sec. 23-J of the
Madhya Pradesh Accommodation Control Act based on the bona fide requirement of the
landlord himself and any other person permitted under Clause (a) or (b) of Section 23-A of
the Act, the death of landlord will not result into abatement of the proceedings and legal heirs
substituted in place of the landlord may continue the proceedings before the Rent Controlling
Authority;
(2) In case of death of landlord during the pendency of the application for eviction under
Chapter III-A based on the ground of bona fide requirement of the landlord alone, it would
come to an end on death of the landlord and substitution of the legal heirs may not be
permitted, because the cause of action, as pleaded in the application would come to an end
with the death of the landlord.
(3) If the death of the landlord takes place after the eviction order is passed in his
favour, the legal representatives of the landlord nevertheless may continue the revisional
proceedings to defend the order of eviction."
18. Although, the counsel for the appellants has emphasized that after death
of landlord, his need has come to an end and suit deserves to be dismissed by
setting aside the judgement and decree of eviction passed by courts below, but
as per the law laid down by the Hon'ble Supreme Court in the case of
Shakuntala Bai (supra), D. Sasi Kumar (supra), Keshav Bhaurao Yeolo
(supra) and by a Division Bench of this Court in the case of Leelawatibai (D)
Thr. LRs. Mahendra Kumar and Ors. (supra), if the rights of the parties have
been crystallized by passing judgment and decree of eviction, then even the
death of plaintiff/landlord during the pendency of the appeal preferred by the
tenant, will make no difference as his heirs are fully entitled to defend the estate
or to execute the decree of eviction.
19. In the present case, the son of original plaintiff, namely Ashok Kumar
Gupta has filed an application under Order VI Rule 17 of CPC proposing his
need for starting business in the suit shop, which is also supported by an
affidavit and despite availability of opportunity to the appellants/defendants, no
reply has been filed by them so far, raising objection to the need of Ashok
Kumar Gupta, therefore and in view of the aforesaid decisions (supra) of
Hon'ble Supreme Court and Division Bench of this Court, it can be said that
son of the original plaintiff, namely Ashok Kumar Gupta can execute the decree
passed in favour of his father and mother.
20. As has been held by Hon'ble Supreme Court as well as by Division
Bench of this Court in the aforesaid decisions (supra), the bonafide need of the
landlord is to be seen with reference to the date of filing of the suit, and the
death of the landlord during the pendency of appeal does not affect such need
adversely. The legal representatives, brought on record, are entitled to defend
the decree passed in favour of the landlord, irrespective of whether their own
need is related to that of the original landlord. Their own requirement need not
be examined afresh, as the decree represents the adjudicated right of the
landlord which survives to them. They remain entitled to the benefits flowing
from the decree obtained by the landlord, therefore, in my considered opinion
there is no need to remand the case for making further enquiry about the
proposed need of the plaintiff's son Ashok Kumar Gupta.
21. Although, acquisition of non-residential property by a tenant is not a
ground of eviction under the Act, but admittedly the appellants/defendants have
acquired/purchased a shop for consideration of Rs.14,10,000/- in the name of
Lalchandra, just adjacent to the suit shop. Fact remains that in the suit shop, the
original tenant, before his death, was carrying out the business with the help of
his sons and this aspect has been considered by first appellate Court in para 20
of its judgment.
22. Resultantly, the second appeal sans merit and is dismissed.
23. Pending application(s), if any, shall also stand disposed of.
24. However, parties shall bear their own costs.
(DWARKA DHISH BANSAL)
JUDGE
ss
