[Cites 24, Cited by 0]
Madhya Pradesh High Court
Madanlal Sharma (Dead) Th Lrs Smt. Kamla ... vs Smt. Asharani Mahajan on 15 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 15th OF APRIL, 2026
SECOND APPEAL No. 414 of 2013
MADANLAL SHARMA (DEAD) TH LR SMT. KAMLA DEVI (DEAD)
TH LR
Versus
SMT. ASHARANI MAHAJAN & OTHERS
Appearance:
Shri Rohit Bansal, Advocate for LR of appellant.
Shri Anand V. Bhardwaj, Advocate for respondent No.1.
JUDGMENT
This second appeal, under section 100 of CPC, has been filed against
the judgment and decree dated 19/9/2013 passed by XI Additional District
Judge, Gwalior in Civil Appeal No. 18A/2013, by which judgment and
decree dated 23/7/2012 passed by XI Civil Judge Class II, Gwalior in Civil
Suit No.134A/2009 was set aside.
2. Plaintiff is the landlord, who has lost his case from the first
appellate Court.
3. At the outset, it was submitted by counsel for appellant that he has
filed IA No. 6132/2025 an application under section 13(6) of the M.P.
Accommodation Control Act, 1961 (for short "the Act") for striking out the
defence of respondents.
4. It is further submitted that appellant has also filed I.A. No.
2251/2026 under section 100(5) of CPC for framing additional substantial
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questions of law.
5. Considered I.A. No. 2251/2026.
6. At the outset, counsel for appellant seeks permission of this Court
to withdraw the said application. It is accordingly dismissed as withdrawn.
7. Considered I.A. No. 6132/2025.
8. Reply to aforesaid IA has been filed along with details of the rent
deposited by the respondent No.1. Respondent No.1 has given details of rent
deposited by her upto December 2025, therefore an objection was raised by
the counsel for appellant that respondent No.1 has not deposited the rent for
January 2026 onwards. Accordingly, receipt dated 20/1/2026 has been
placed on record to show that respondent No.1 has deposited the rent for the
month from 1/1/2026 to 31/12/2026.
9. Although it is submitted by counsel for appellant that the rent for
the month of January, 2026 was deposited on 20/1/2026, therefore, it was not
within the period of 15 days of the succeeding month, but the aforesaid
submission is misconceived. As per section 13(1) of Act, the tenant is liable
to deposit the rent of a month by 15th of the succeeding month, therefore,
respondent was entitled to deposit the rent of the month of January 2026 by
15th of February, 2026, whereas he has deposited the rent on 20/1/2026,
therefore, the rent deposited by the respondent for the period of January 2026
to December 2026 is within time.
10. Accordingly, IA No.6132/2025 filed under section 13(6) of the
Act is hereby rejected.
11. By order dated 2/7/2015, this appeal was admitted on the
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following substantial question of law:-
"Whether, the first appellate court was justified in reversing the
judgment and decree of the trial court in a suit for eviction on the
ground of bonafide requirement because, the need of the son was
shown prior to the filing of the suit by the husband of the
appellant who is no more?"
12. It is not out of place to mention here that original plaintiff
Madanlal Sharma died during the pendency of suit and, accordingly, his
widow Smt. Kamla Devi was substituted as his legal representative. Smt.
Kamla Devi also expired during the pendency of this appeal and,
accordingly, her legal representative Jitendra Sharma has been substituted in
her place, while her other legal representatives including Mahesh Kumar
Sharma were substituted as respondent Nos. 2 to 8. Mahesh Kumar Sharma
also died during the pendency of this appeal and, accordingly, Amit Mahesh
Sharma and Nitin Mahesh Sharma have been substituted as legal
representatives of respondent No.2 Mahesh Kumar Sharma.
13. Facts necessary for disposal of present appeal, in short, are that
original plaintiff Madanlal Sharma filed a suit for eviction and recovery of
rent. It was his case that he is the owner and in possession of one building
situated behind Sona Lodge, near Gandhi Market, Maharaj Bada, Lashkar,
District Gwalior whose municipal number is 1178 and is situated in Ward
No. 50. On the ground floor of said building, shops are situated which are in
possession of different tenants. The Shop No.2 is in possession of defendant
as a tenant. She was inducted as a tenant in the month of October 1984 on a
monthly rent of Rs.200/- for running her business of clothes. It was also
agreed that rent by 10% shall be enhanced after every three years and it was
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also reduced in writing that defendant shall not sublet the shop without
obtaining permission/consent of plaintiff. However, it was pleaded that in
spite of assurance given by defendant that she would execute the rent note,
no rent note has been executed so far. The shop in possession of defendant
was shown with diagonal red lines in the plaint map. The tenancy was from
first day of calendar month till the last day calendar month. The rent was not
inclusive of electricity and water charges. It was for the defendant to deposit
the water charges and as well as electricity charges. For the last many
months, defendant has not paid rent to the plaintiff. The defendant had paid
the rent for the last time to plaintiff in the month of August 2003 as per the
condition to pay enhanced rent i.e. after adding 10% as agreed upon by the
parties.
14. Since the decree has not been passed on the ground of areas of
rent and no substantial question of law has been framed in that regard and
even IA No.6132/2025 filed under the section 13(6) of the Act has been
rejected, therefore, it is not necessary to discuss the pleadings with regard to
arrears of rent.
15. It was further pleaded in the plaint that plaintiff had let out the suit
shop to defendant for personally carrying out her business, but she carried
out the business for 5-6 years and later on without written permission of
plaintiff, she has sublet the suit shop to Shri Vishwajeet Mahajan, Shri Ajay
Mahajan and Shri Sanjeev Mahajan and the possession has also been given.
When it was objected by plaintiff, then it was replied by defendant that she
has given the possession to the aforesaid three persons out of her own
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volition and now the aforesaid three persons will carry on the business.
When a Panchayat was convened, defendant got the suit shop vacated from
Vishwajeet Mahajan, Ajay Mahajan and Sanjeev Mahajan and instead of
handing over vacant possession of the suit shop to the plaintiff, she kept the
suit shop locked for 8-10 years. It was further pleaded that about 4-5 years
prior to filing of suit, defendant has again sublet the suit shop to Vishwajeet
Mahajan, Ajay Mahajan and Sanjeev Mahajan and accordingly, it was
pleaded that defendant is liable to be evicted under section 12(1)(b) and
12(1)(d) of the Act. It was further pleaded that plaintiff is Advocate by
profession and he is in bonafide requirement for running his Office. At
present, he does not have any place for opening his Office of Advocate.
Accordingly, it was pleaded that original plaintiff is in bonafide need for
opening an Office of Advocate and thus it was prayed that defendant is liable
to be evicted under section 12(1)(f) of the Act. A verbal request were made
on multiple occasions but defendant did not vacate the suit shop and
accordingly registered notices dated 21/7/2004 and 7/4/2005 were sent to
defendant thereby giving two months' time to pay arrears of rent and to
vacate the suit premises but in spite of service of notices, neither she has
deposited the arrears of rent nor has handed over the vacant possession.
Thus, the suit was filed for recovery of Rs. 16,240/- by way of arrears of rent
as well as for eviction on the grounds mentioned above.
16. Defendant filed her written statement. As already pointed out, the
substantial question of law has been framed only in respect of bonafide
requirement for non-residential purposes, therefore, the written statement in
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respect of other grounds of eviction will not be discussed in order to avoid
burdening this judgment. It is suffice to mention here that defendant admitted
the ownership of plaintiff. It was also admitted that defendant is tenant of suit
shop. However, it was claimed that plaintiff has sold the shops which were in
possession of other tenants and it has been stated that one shop was sold to
Smt. Reena Chandani by registered sale deed dated 31/3/2000, another shop
has been sold to Smt. Shashi Jain by registered sale deed dated 31/3/2000
and third shop has been sold to Smt. Deepa Kukreja again by a registered
sale deed dated 31/3/2000. It was also claimed that plaintiff is also in
possession of one more shop apart from the shop which is in possession of
defendant. All other plaint averments were also denied. So far as the
bonafide need for non-residential purposes of opening an Office of Advocate
is concerned, it was pleaded that if plaintiff was in need of space, then he
would not have sold the Shop Nos. 1, 3 and 4 to Smt. Reena Chandani, Smt.
Shashi Jain and Smt. Deepa Kukreja. It was further pleaded that plaintiff
after getting retired from his services is getting pension and thus it was
claimed that plaintiff has alternative and reasonably suitable accommodation.
It was contended that in fact plaintiff wants to alienate the suit Shop No.2 for
earning money.
17. As already pointed out, original plaintiff died during the pendency
of suit and accordingly legal representative plaintiff namely Smt. Kamla
Devi amended the plaint and it was pleaded that she requires the suit shop
bonafidely for non-residential purposes of herself, as well as, for her elder
son Jitendra Sharma. It was claimed that Jitendra Sharma is residing with the
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widow of original plaintiff and the plaintiff is not doing any business,
whereas Jitendra Sharma is also not in permanent job and he is doing some
private job. After the suit shop is vacated, plaintiff and her son Jitendra
Sharma would start business of clothes. It was further pleaded that plaintiff
does not have any other alternative and reasonably suitable accommodation
for running business of garments.
18. The written statement was also accordingly amended and it was
denied that widow of original plaintiff is in bonafide need for non-residential
purposes because she is an old lady. It was further pleaded that elder son of
widow of original plaintiff namely Jitendra Sharma is surviving on a job. It
was further pleaded that it has not been clarified that on what date the
bonafide need for non-residential person purpose accrued. It was further
pleaded that one more shop which is adjoining to the suit shop is in
possession of widow of original plaintiff, therefore, she is having alternative
and reasonably suitable accommodation for starting her business.
19. The trial Court after framing issues and recording evidence, held
that suit shop is bonafidely required by widow of original plaintiff and her
elder son Jitendra Sharma. However, the condition that rent would be
enhanced by 10% after every three months was found to be not proved. So
far as the arrears of rent is concerned, it was held that from September, 2003
till the actual eviction, plaintiff is entitled for rent at the rate of Rs.320/- per
month. The ground of arrears of rent was not found to be proved. The ground
of nuisance was also not found to be proved. The ground of subletting was
also not found to be proved. The ground of non-user of the suit
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accommodation was also not found to be proved. Thus in nutshell, it was
held that monthly rent of the suit shop was Rs.320/- and the suit property is
bonafidely required by plaintiff for non-residential purposes of herself and
her major son Jitendra Sharma.
20. Being aggrieved by the judgment and decree passed by the trial
Court, defendant preferred an appeal. By impugned judgment and decree
dated 19/9/2013 passed by XI Additional District Judge, Gwalior in Civil
Appeal No. 18A/2013, appeal filed by defendant was allowed and the civil
suit filed by plaintiff was dismissed and the judgment and decree passed by
the trial Court was reversed.
21. As already pointed out, this appeal was admitted on the substantial
question of law which has been reproduced in beginning of this judgment.
22. Challenging the judgment and decree passed by the appellate
Court, it is submitted by counsel for appellant that defendant cannot dictate
terms as to how plaintiff/landlord/owner should use his property. It is
submitted that one of the legal representative of original plaintiff Madanlal
was in private and temporary job. It is not expected from the plaintiff to live
a life of destitute in order to seek a decree for eviction on the ground of
bonafide need. Everyone has to do some work in order to earn his livelihood
for his survival. Under these circumstances, if appellant No. (i) Jitendra
Sharma was in private job for the purposes of his survival, then it cannot be
said that the suit property was not required. It is further submitted that
requirement has to be seen on the date of institution of suit. Madanlal
Sharma who had retired from his service had joined the profession of
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Advocate and, therefore, his need for space for opening an Office of
Advocate was bonafide. Without an Office, an Advocate cannot prepare the
cases and cannot deal with the clients. However, as original plaintiff had died
during the pendency of suit, accordingly Smt. Kamala Devi who was
substituted as legal representative amended the plaint claiming the bonafide
need for non-residential purposes for herself and her major son Jitendra
Sharma. It is submitted that now Kamala Devi has also expired and Jitendra
Sharma is also on record as one of the legal representative of original
plaintiff Madanlal Sharma. So, the adverse inference drawn by appellate
Court that original plaintiff had filed a suit for eviction for his own non-
residential purposes and not for the non-residential purposes of his son
Jitendra Sharma, is misconceived. Madanlal Sharma was the owner and after
retiring from his job, he had joined the profession of Advocacy. If he wanted
to open his office, then it cannot be said that his son Jitendra Sharma had no
bonafide need for non-residential purposes. The findings given by the
appellate Court that in fact Madanlal Sharma should have filed a suit for non-
residential purposes of his son are misconceived. The suit was filed on
13/7/2006. It is submitted that original plaintiff had a family of 9 members
i.e. wife, three sons and five daughters. For the survival and upbringing of
his family members, if the original plaintiff had sold some property, then it
cannot be said that the sale of such property was unwarranted.
23. Per contra, appeal is vehemently opposed by counsel for
respondent. It is submitted that if Jitendra Sharma was unemployed and was
intending to start the business, then in fact the suit should have been filed by
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original plaintiff for bonafide need of his son for non-residential purposes. It
is further submitted that widow of original plaintiff was aged about 76 years.
Therefore, it is not expected that an old and infirm lady would start the
business. It is fairly conceded that even the defendant who is in possession of
the suit shop in the capacity of a tenant, is also an old and infirm lady.
24. Heard, learned counsel for the parties.
25. The Supreme Court in the case of Mahendra K. Agarwal v. Vinay
Kumar Gupta reported in (2010) 15 SCC 574 has held as under:-
".........A plain reading of the provisions extracted above shows
that when a building is bona fide required either in the existing
form or after demolition and the new construction by the landlord
for occupation of himself or any member of his family for the
purpose for whose benefit it is held by him he can seek an order of
eviction against the tenant. Further, the said clause entitles a
landlord who is a trustee of a public charitable trust to seek
eviction for the objects of the trust. It is to be noted here that the
provision makes no distinction between a residential and a non-
residential premises. However, what is important to note is
that there must be a bona fide requirement for occupation of the
landlord or any member of his family."
26. The Supreme Court in the case of Mehmooda Gulshan v. Javaid
Hussain Mungloo reported in (2017) 5 SCC 683 has held as under:-
"20. Thus, the question is whether there is a reasonable
requirement by the landlord of the premises. This would depend
on whether the landlord has been able to establish a genuine
element of need for the premises. What is a genuine need would
depend on the facts and circumstances of each case. Merely
because the landlord has not examined the member of the family
who intends to do business in the premises, he cannot be non-
suited in case he has otherwise established a genuine need. The
need is a matter of appreciation of evidence, and once there is no
perversity in the appreciation of evidence on the need, the said
finding of fact cannot be reopened. It may be crucially relevant to
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note that the eviction is not sought on the last limb of Section
11(1)(h ) of the Act, namely, "for the occupation of any person for
whose benefit the house or shop is held". The premises sought to
be evicted is not held for the benefit of the son alone, but the
whole family. It is for the own occupation of the landlord. It has
been established in the facts of this case that the landlord was not
happy and content with the paltry rent received from the premises.
The landlord intended to engage her son in the business at the
premises. It is for the landlord to decide as to the best use the
premises should be put to. There is nothing wrong on the part of a
landlord in making plans for a better living by doing business
engaging her son. Having regard to the background of the son who
is unemployed and undereducated, the appellant was able to
establish that business was the available option and the tenanted
premises was the only space available. Thus, the genuine need for
the premises has been established. Unfortunately, the High Court
has missed these crucial aspects."
27. The Supreme Court in the case of Kamleshwar Prasad v.
Pradumanju Agarwal reported in (1997) 4 SCC 413 has held as under:-
"3. Mr Manoj Swarup, learned counsel appearing for the appellant
in this Court urged that the person, for whose bona fide
requirement the order of eviction has been passed by the appellate
authority, having died during the pendency of the writ petition, the
said bona fide requirement no longer subsists and consequently the
High Court should have taken that fact into consideration and
should have interfered with the order passed by the appellate
authority for the eviction of the tenant. The learned counsel further
urged that no doubt the proceedings under Article 226 of the
Constitution is not a continuation of the eviction proceedings
under the Act, but all the same the High Court while exercising its
power of supervision under Article 226 of the Constitution is not
denuded of its power to take into consideration the subsequent
event that had happened which is necessary to be taken into
consideration in the interest of justice. Accordingly, the High
Court committed serious error in not taking into account the facts
of the death of the landlord for whose bona fide requirement the
order of eviction had been passed by the appellate authority, and
therefore, this Court should interfere with the said order of the
High Court. Having given an anxious consideration to the
contention raised by the learned counsel for the appellant and
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under the facts and circumstances of this case we are of the
considered opinion that this case does not warrant interference by
this Court under Article 136 of the Constitution. Under the Act the
order of the appellate authority is final and the said order is a
decree of the civil court and a decree of a competent court having
become final cannot be interfered with by the High Court in
exercise of its power of superintendence under Articles 226 and
227 of the Constitution by taking into account any subsequent
event which might have happened. That apart, the fact that the
landlord needed the premises in question for starting a business
which fact has been found by the appellate authority, in the eye of
law, it must be that on the day of application for eviction which is
the crucial date, the tenant incurred the liability of being evicted
from the premises. 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 elder (sic other) son. In this view of the
matter, we find no force in the contention of Mr Manoj Swarup,
learned counsel appearing for the appellant and we do not find any
error in the impugned judgment of the High Court warranting
interference by this Court under Article 136 of the Constitution.
The appeal, accordingly, fails and is dismissed but in the
circumstances without any order as to costs."
28. The Supreme Court in the case of Shakuntala Bai v. Narayan Das
reported in (2004) 5 SCC 772 has held as under:-
"10. The effect of death of a landlord during the pendency of the
proceedings has been considered in several decisions of this Court.
In Phool Rani v. Naubat Rai Ahluwalia [(1973) 1 SCC 688 : AIR
1973 SC 2110] the landlord filed an ejectment application under
Section 14(1)(e) of the Delhi Rent Control Act and eviction of the
tenant was sought on the ground that the premises were required
by the plaintiff "for occupation as a residence for himself and
members of his family". The Additional Rent Controller dismissed
the application on a preliminary ground that the notices to quit
were not valid, without examining the case on merits. The plaintiff
died during the pendency of the appeal preferred by him and his
heirs were substituted. The case was remanded and the Rent
Controller passed an order of eviction. In appeal a contention was
raised that the right to sue did not survive to the heirs of the
plaintiff, which was rejected by the Rent Control Tribunal but was
accepted in appeal by the High Court. This Court held that
different results may follow according to the stage at which the
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death occurs. One of the situations considered in para 13 of the
Report is as under: [SCC p. 694, para 13(i)]
"13. (i) cases in which the death of the plaintiff occurred after
a decree for possession was passed in his favour; say, during
the pendency of an appeal filed by the unsuccessful tenant;"
10.1. With regard to this category of cases, it was held that the
estate is entitled to the benefit which, under a decree, has accrued
in favour of the plaintiff and, therefore, the legal representatives
are entitled to defend further proceedings, like an appeal, which
constitutes a challenge to that benefit. Even otherwise, this appears
to be quite logical. In normal circumstances after passing of the
decree by the trial court, the original landlord would have got
possession of the premises. But if he does not and the tenant
continues to remain in occupation of the premises it can only be
on account of the stay order passed by the appellate court. In such
a situation, the well-known maxim "actus curiae neminem
gravabit" that "an act of the court shall prejudice no man" shall
come into operation. Therefore, the heirs of the landlord will be
fully entitled to defend the appeal preferred by the tenant and
claim possession of the premises on the cause of action which had
been originally pleaded and on the basis whereof the lower court
had decided the matter and had passed the decree for eviction.
However, in regard to the case before the court it was held that the
requirement pleaded in the ejectment application on which the
plaintiff founded his right to relief was his personal requirement
and such a personal cause of action must perish with the plaintiff.
On this ground it was held that the plaintiff's right to sue will not
survive to his heirs and they cannot take the benefit of the original
right to sue.
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 : AIR
1973 SC 2110] insofar as 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 a
larger Bench does not in any manner affect the view expressed
in Phool Rani [(1973) 1 SCC 688 : AIR 1973 SC 2110] 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 [(1976) 4 SCC 417] would reinforce the aforesaid
view. There are several decisions of this Court on the same line.
I n Kamleshwar Prasad v. Pradumanju Agarwal [(1997) 4 SCC
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413] it was held that the need of the landlord for the 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
the 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
the 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."
29. It is also not out of place to mention here that in the case of
Shakuntala Bai (Supra), after the death of original plaintiff, his legal
representatives were substituted and an amendment was also carried out by
the legal representatives pointing out their personal bonafide need for non-
residential purposes, and it was held as under:-
"16. There is another aspect of the matter which needs
consideration. After the case had been remanded, the plaint had
been amended and the need of the sons had been set up who had
all attained majority by that time. The courts thereafter proceeded
to decide the controversy on the basis of the need of the sons and
the lower appellate court, after finding their need to be bona fide,
passed a decree for eviction in their favour. In the second appeal
preferred by the tenant, the High Court, instead of examining the
issues on the basis of which the case had been decided, went on to
hold that on account of death of Girdhari Lal, the need set up by
him came to an end and on that finding dismissed the suit. The
parties having amended their respective pleadings and the two
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courts below having decided the matter on such amended
pleadings and the evidence adduced thereon, it was wholly
impermissible on the part of the High Court to examine the
question as to the effect of death of the original plaintiff and
thereafter to dismiss the suit on the finding that his need having
come to an end, the suit ought to have been dismissed. It is well
settled that when amendment is allowed, the proceedings have to
be decided on the basis of such amended pleadings. We are,
therefore, of the opinion that the view taken by the High Court is
wholly illegal."
30. A Co-ordinate Bench of this Court in the case of Rajendra Kumar
Jain Vs. Lakshmi Bai reported in 2006 (4) MPLJ 115 has held that death of
landlord does not automatically invalidate a decree for eviction based on a
bonafide need, as the legal heirs can continue the business intended by the
deceased landlord.
31. If the facts and circumstances of this case are considered, then the
following circumstances would emerge:-
(i) The suit was filed by original plaintiff Madanlal by claiming that he
wants to open his office of Advocate.
(ii) The original plaintiff died during the pendency of suit and
accordingly his widow Smt. Kamla Devi was substituted as legal
representative.
(iii) Smt. Kamla Devi amended the plaint and pleaded bonafide need
for herself as well as for her elder son Jitendra Sharma for non-residential
purposes.
(iv) Smt. Kamla Devi also expired during the pendency of this appeal
and her legal representatives i.e. three sons and five daughters including
Jitendra Sharma, for whose benefit for non-residential purposes the plaint
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was also amended, were also impleaded.
32. Thus in the present case, not only the suit was filed for non-
residential purposes of the original plaintiff, but after his death, the bonafide
need of the elder son of original plaintiff was also pleaded and now the son is
appellant being legal representative of original plaintiff.
33. So far as the reasoning given by the appellate Court that if elder
son of original plaintiff Jitendra Sharma was really in bonafide need for non-
residential purposes then the original plaintiff should have filed a suit for
bonafide need of suit premises for non-residential purposes of his son
Jitendra Sharma is concerned, the same is misconceived. Original plaintiff
Madanlal Sharma was the owner of the property in dispute. It was his
prerogative whether to use the suit premises for his own need for non-
residential purpose or for the need of his son. The tenant cannot dictate the
landlord that he should not file a suit for his own bonafide need and should
also file a suit for bonafide need of one of his sons. It is not out of place to
mention here that original plaintiff Madanlal had eight children. Under these
circumstances, if he decided to file a suit for eviction on the ground of
bonafide need for non-residential purposes of his elder son, then no adverse
inference can be drawn with regard to the bonafide need of Jitendra Sharma
for non-residential purposes. Furthermore, Jitendra Sharma had appeared as a
as a witness in the witness box. In paragraph 11, he had admitted that four
shops were situated on the ground floor of the building, out of which three
shops were already sold in the year 2000, but he clarified that those shops
were sold for meeting out marriage expenses of his sisters. Explanation given
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by Jitendra Sharma pointing out the reasons behind the sale of other three
shops is genuine, specifically when in paragraph 12, he explained that his
father had retired from service in the year 1988 and had started practicing
after one or two years of his retirement i.e. if original plaintiff Madanlal
Sharma had started practicing in 1990 to meet out the marriage expenses of
his five daughters and if he was in need of money, then the sale of three
shops by original plaintiff to the persons who were already in possession of
the same as tenants cannot be said to be unnatural or cannot be said to be
with a dishonest intention to claim bonafide need for his non-residential
purposes. He further admitted that he is in a private and temporary job and
most of the time he was in the flying squad of Jiwaji University and he used
to visit the University only as and when he was required, primarily at the
time of examination. It is also not the case of defendant that Jitendra Sharma
is in a permanent and Government job. Furthermore, it is well established
principle of law that a tenant cannot dictate the landlord how he should use
his property. It is the prerogative of the landlord to use the property as per his
convenience.
34. Under these circumstances, this Court is of considered opinion
that the reasoning assigned by the appellate Court is not proper and is based
on surmises and conjectures.
35. It is the contention of counsel for respondent No.1 that legal
representatives of original plaintif Madanlal Sharma namely Smt. Kamla
Devi who was substituted on the basis of a Will was an old and infirm
person, therefore in the light of judgment passed by Supreme Court in the
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18 SA-414-2013
case of Deena Nath v. Pooran Lal reported in (2001) 5 SCC 705 , her claim
that she is bonafide need for non-residential purpose cannot be accepted.
However, the facts of the case are that by amending the plaint, the widow of
original plaintiff Madanlal Sharma had not only claimed her own bonafide
need for non-residential purposes, but had also claimed bonafide need for
non residential purposes of her elder son Jitendra Sharma who was not
having any permanent job. It is well established principle of law that the
bonafide need of landlord includes the bonafide need of his or her family
members.
36. Thus, the reasons assigned by the appellate Court for setting aside
the judgment and decree passed by the trial court with respect to the bonafide
need of the plaintiff cannot be approved as it is against the settled principle
of law.
37. Ex consequenti , the judgment and decree passed by the appellate
Court with regard to bonafide need of plaintiff for non-residential purposes is
hereby set aside. Although the trial Court had also granted decree in respect
of rent but since no issue has been framed in that regard, therefore no
observations or findings are being given.
38. As a result, the suit filed by plaintiff for eviction of
defendant/respondent on the ground of bonafide need for non-residential
purposes is hereby decreed.
39. The substantial question of law is answered in negative.
40. It is made clear that in case if any application for execution of
decree is filed, then in the light of judgment passed by Supreme Court in the
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19 SA-414-2013
case of Periyammal (Dead) Through Lrs & others vs. V. Rajamani and
another, decided on 06/03/2025 in Civil Appeal Nos. 3640-3642 of 2025 , the
Executing Court shall ensure that the execution is completed within a period
of six months.
41. With aforesaid observation, the appeal succeeds and is hereby
allowed.
42. Decree be drawn accordingly.
(G. S. AHLUWALIA)
JUDGE
(and)
