Abdul Rajjak vs Habib Noor

Prakash Shrivastava, J.

Heard on the question of admission.

This second appeal u/s 100 of the CPC has been filed against the concurrent judgment of the two courts below, whereby the decree of eviction has been passed against the appellant under M.P. Accommodation Control Act (for short "the Act"). The respondent had filed the suit for eviction against the appellant pleading that the appellant had committed default in the payment of rent, therefore, the decree of eviction u/s 12(1)(a) of the Act be passed and also pleading that the respondent''s son Irfan has become major and he needs the suit shop and the adjoining shop, which is occupied by another tenant Abdul Gani, for the purpose of starting a Bhojnalaya (restaurant). It was pleaded that the respondent''s son will use the suit shop as kitchen and the shop of Abdul Gani for serving the customers. The trial Court by the judgment dated 1.2.2012 decreed the suit filed by the respondent on reaching to the conclusion that the respondent is in bona fide need of the suit premises and he had no other alternate suitable accommodation to satisfy the said need. The trial Court also found that the appellant had committed default in the payment of rent. The first appellate court on the re-appreciation of the evidence on record, has affirmed the decree of eviction which has been passed by the trial Court.

Learned counsel appearing for the appellant submits that the ground of bona fide need as set up by the respondent in the plaint, has not been properly proved by way of the evidence on record, and the courts below have committed an error in passing the decree of eviction on this ground.

Having heard the learned counsel for the appellant and on the perusal of the record, it is found that the two courts below on the proper appreciation of the evidence on record, have reached to the conclusion that the suit shop is required by the respondent for starting the business of his son Irfan. The said finding has been arrived at by the courts below after taking note of the evidence of PW-1 Habib Noor, PW-2 Irfan, DW-1 Abdul Razzaq, DW-3 Jaan Mohammad Khan, DW-4 Mohammad Iqbal and the defendant and other documentary evidence which was placed on record. It has rightly been found that the suit shop is suitable for the business, for which the need has been pleaded. It has also been found that the appellant has sufficient capital to start the business. It has also rightly been noted by the courts below that the respondent has no other alternate suitable accommodation in the town concerned for the said business. The finding relating to bonafide need is essentially a find of fact which has been concurrently recorded by the two courts below. The said finding is neither erroneous nor perverse, therefore, it is not open to challenge in the second appeal.

In view of the aforesaid, I am of the opinion that the issue raised by the appellant is concluded by the concurrent finding of fact recorded by the two courts below. The appeal does not involve any substantial question of law and is accordingly dismissed.

At this stage, counsel for the appellant has prayed for time to vacate the suit premises. Considering the entire circumstances of the case and taking note of the use to which the suit premises has been put to, the appellant is granted time to vacate the suit premises up to 31.3.2014 on the following conditions:-

(1) The appellant will furnish an undertaking before the trial Court within 4 weeks from today stating that he will handover the peaceful vacant possession of the suit premises to the respondent on or before 31.3.2014.

(2) The appellant will comply with the money part of the decree within 6 weeks from today.

(3) The appellant will continue to deposit the rent of the suit premises on or before 7th of each month.

(4) The appellant will not create any third party right on the suit premises in the meanwhile.

The appeal is accordingly dismissed.