Madhya Pradesh High Court
Smt. Santoshi Chourasiya vs Nathuram Chourasiya on 3 March, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:9777
1 SA-1322-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT JABA LPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 3rd OF MARCH, 2025
SECOND APPEAL No. 1322 of 2010
SMT. SANTOSHI CHOURASIYA AND OTHERS
Versus
NATHURAM CHOURASIYA AND OTHERS
Appearance:
Ms.Priyanka Tiwari - Advocate for the appellants.
Shri Saket Agrawal - Advocate for the respondents.
Reserved on : 13/02/2025
Pronounced on : 03/03/2025
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JUDGMENT
This second appeal has been preferred by the
appellants/plaintiffs/landlord challenging the judgment and decree
dated 30/8/2010 passed by Second Additional District Judge,
Tikamgarh in Regular Civil Appeal No.24A/2010 reversing the
judgment and decree dated 24/12/2009 passed by Civil Judge Class-
II, Tikamgarh in Civil Suit No.29A/2009, whereby Trial Court
decreed appellants/plaintiffs' suit for eviction on the ground of
bonafide need available under Section 12(1)(f) of the M.P.
Accommodation Control Act, 1961 (in short "the Act"), which was
filed on the grounds available under Sections 12(1)(a),(b),(f) and (h)
of the Act.
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2. Facts in short are that the plaintiffs instituted a suit for eviction
with the allegations that the defendant 1 is tenant of the plaintiffs in
the shop on rent of Rs.1,300/- per month and was carrying out his
business, but without prior permission of the plaintiffs, he has sublet
the shop to his brother, defendant 2. It is alleged that the defendant 1
is in arrears of rent w.e.f. 30/11/2003 and has not paid the rent despite
making demand by the plaintiffs. It is also alleged that the rented shop
is required by the plaintiffs for starting their joint business and for its
reconstruction. On inter alia allegations, the suit was filed.
3. Defendants appeared and filed written statement and denying
the allegations made in the plaint, contended that the defendant 2 is
tenant in the shop on rent of Rs.1,300/- per month and defendant 1
never remained as tenant of the plaintiffs, therefore, there is no
question of subletting of the shop by defendant 1 to the defendant 2. It
is also denied that the plaintiffs are in need of the shop for starting
business and for reconstruction thereof. It is contended that the rent
has remained due because of non-acceptance by the plaintiffs, which
has already been deposited in the Court. 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. In support of their case,
plaintiffs examined themselves, namely, Smt. Santoshi (PW-1) and
Hargovind Chaurasiya (PW-2) and produced documentary evidence
(Ex.P/1 to P/7). Similarly, the defendant 2 examined himself
Chaturbhuj Chaurasiya (DW-1) and Ashok Kumar Jain (DW-2) and
also produced documentary evidence (Ex.D/1 to D/4).
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5. Upon due consideration of the material available on record,
Trial Court found that the shop was not given on rent only to
defendant 1 and the defendant 2 is not the sub-tenant, however, held
that the plaintiffs are in need of the shop for starting business by
plaintiff 1-Smt. Santoshi and decreed the suit on the ground under
Section 12(1)(f) of the Act but refused to pass decree on other
grounds of eviction pleaded in the plaint, vide its judgment and decree
dated 24/12/2009.
6. Against the judgment and decree passed by Trial Court,
defendants 1 and 2 preferred regular civil appeal, however, no cross-
objection/appeal was filed by the plaintiffs regarding adverse findings
recorded by Trial Court against them. After hearing the parties, First
Appellate Court has vide impugned judgment and decree dated
30/8/2010 allowed the appeal and by setting aside the judgment and
decree of Trial Court, dismissed the suit in its entirety vide impugned
judgment and decree dtd.30.08.2010.
7. Against the judgment and decree of First Appellate Court,
appellants/plaintiffs preferred second appeal, which came in hearing
on 8/1/2016 and was admitted for final hearing on the following
substantial question of law:-
"Whether the first appellate Court committed an error of law in reversing
the well reasoned judgment and decree passed by the trial Court?"
8. Learned counsel for the appellants/plaintiffs submits that taking
into consideration the admissions made by defendants in the written
statement and on the basis of material available on record, Trial Court
rightly decreed the suit for eviction on the ground of bonafide
requirement of plaintiff 1-Smt. Santoshi, but First Appellate Court
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just contrary to law laid down by Hon'ble Supreme Court in the case
of Santosh Hazari Vs Purushottam Tiwari (Dead) By LRs., (2001) 3
SCC 179 committed illegality in reversing the well reasoned
judgment and decree of Trial Court on the grounds not permissible in
the eyes of law. He submits that both the Courts below have
concurrently found that except the shop in question, plaintiffs are not
in possession of any other suitable alternative accommodation in the
township and despite this established fact, First Appellate Court on
the wrong premise that the plaintiffs have no clear plan for starting
business in the suit shop(s) and have no experience to start General
Store and Pan shop, dismissed the suit. Placing reliance on the
decisions in the case of Notandas vs. Radheshyam, 1986 MPRCJ N-
52 and Ghanshyam Vs. Kailash Narayan, 1983 MPWN 300 learned
counsel for the appellants/plaintiffs submits that for starting business,
the plaintiffs are not even required to plead nature of specific business
as well as experience and availability of funds to start that business
and as such, reversal of judgment and decree by First Appellate Court
on that ground is not sustainable. He submits that once the plaintiffs
are found in bonafide need of the suit shop, that itself is sufficient to
pass decree of eviction, which was rightly passed by Trial Court.
With these submissions, he prays for setting aside the impugned
judgment and decree passed by First Appellate Court and for
restoration of the judgment and decree passed by Trial Court.
9. Per contra, learned counsel appearing for the respondents/
defendants supports the impugned judgment and decree passed by
First Appellate Court. He submits that as the plaintiffs have not been
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able to prove their bonafide need including the nature of business, yet
to be started as well as experience for the business, therefore, First
Appellate Court has rightly passed the impugned judgment and decree
by reversing the judgment and decree of Trial Court. In support of his
submissions, learned counsel placed reliance on the decisions in the
case of Rakhav Lal vs. Sardar Kirpal Singh, 2008 (1) MPLJ 278 and
Raj Kumar Jain vs. Smt. Usha Mukhariya, 2009 (1) MPLJ 343. With
these submissions, learned counsel for the respondents/defendants
prays for dismissal of the second appeal.
10. Heard learned counsel for the parties and perused the record.
11. In the present case, the plaintiffs instituted the suit for eviction
on the grounds available under Sections 12(1)(a),(b),(f) and (h) of the
Act. After holding trial and in view of the fact that the plaintiffs have
no suitable alternative vacant accommodation for starting their
business and further in view of the fact that plaintiffs have their
existing business and are doing it from the house, Trial Court decreed
the suit for eviction only on the ground of bonafide need available on
the ground under Section 12(1)(f) of the Act.
12. Perusal of impugned judgment and decree shows that First
Appellate Court has nowhere said that the plaintiffs are in possession
of some other alternative suitable vacant accommodation for starting
their business but due to some minor discrepancies in the statements
of plaintiffs regarding starting of their business jointly or separately in
the suit shop(s) as well as nature of business and its planning
including their experience to start the business, reversed the judgment
and decree of Trial Court and observed that the plaintiffs are not
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entitled for decree of eviction only on the basis of their desire to start
the business.
13. It is well settled that the plaintiff/landlord is not even required
to plead specifically the nature of business to be started in the
accommodation and further the plaintiff is also not required to prove
availability of necessary funds and experience of the proposed
business to be started in the suit accommodation. However, in the
present case the plaintiffs have sufficiently proved that they being
husband and wife want to start business of Pan Shop and General
Store and they are having sufficient experience, they being of
Chaurasiya caste. Apparently, First Appellate Court has in a pick and
choose manner, considered oral testimony of the plaintiffs and
recorded self contradictory findings. On the one hand it has recorded
finding in para 11 of the impugned judgment that for seeking decree
of eviction on the ground under Section 12(1)(f) of the Act, the
landlord is not required to prove experience of business and
availability of funds but in later paragraph 13, it has recorded just
contrary findings in that regard, which do not appear to be
sustainable.
14. As there is no reversal of the findings recorded by Trial Court
to the effect that the plaintiffs are in bonafide need of the suit shop, in
my considered opinion, First Appellate Court has committed illegality
in reversing the judgment and decree of eviction passed by Trial
Court.
15. In view of the aforesaid discussion, second appeal stands
allowed and by setting aside the judgment and decree passed by First
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Appellate Court, judgment and decree passed by Trial Court is hereby
restored.
16. As a result thereof, suit of the appellants/plaintiffs stands
decreed on the ground of bonafide need available under Section
12(1)(f) of the Act.
17. Misc. application(s), pending if any, shall stand closed.
18. However, no order as to the costs.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
