Arshad Abbas vs Vivek Kumar Agrawal

This is defendants’ first appeal challenging the judgment and decree dated 06.02.2016 passed by the learned Sixth Additional District Judge, Durg (C.G.) in Civil Suit No. 23-A/2012 by which the learned trial Court has decreed the suit and directed the defendants to vacate the suit premises within two months and also directed to pay the compensation as per the standard rate.

For convenience plaintiff and defendants are termed as it exists before the learned trial Court.

The brief facts as reflected from the plaint’s averments are that the plaintiff filed civil suit against the defendants for recovery of arrears of rent and eviction of defendants from the shop situated at Station Road Sindhi Colony, area 11x22ft having separate electricity connection (hereinafter referred to as ‘the suit property’) as per the provisions of Section 12(1)(a),(b),(c)(e)(f) of the C.G. Accommodation Control Act (hereinafter 'the Act') mainly contending that originally the agreement was executed between the father of plaintiff late Laxmi Narayan Agrawal and Arshad Abbas on 24.03.1988 w.e.f. 01.03.1988 and the monthly rent was fixed at Rs.600/- and subsequently the tenancy continued and rent become payable at Rs.3000/- when it was last paid by the defendant No.1 to the father of the plaintiff. From the year 2007 the defendant No.1 has failed to pay the rent to the father of the plaintiff and has also sub-let the property to the defendant No.2 Sajeed Hasan without permission of the landlord which is violation of the terms of agreement. The defendants violating the terms of agreement are not paying rent to the plaintiff and have moved an application before the Court for granting permission to deposit the rent from September, 2010 which was refused by the concerning Court. It is also submitted that the plaintiff requires the suit premises for his bonafide need for running an education institution for specially abled persons, therefore, to vacate the premises the plaintiff has sent legal notice on 28.06.2011 which was replied by the Advocate of defendants on 19.07.2011 and thereafter suit was filed by the plaintiff before the Trial Court for eviction and arrears of rent against the defendants.

The defendants have filed their written statement denying the allegations made in the plaint mainly contending that it was agreed between the defendant No.1 and father of plaintiff that the tenancy will be continued without execution of fresh agreement on expiry of agreement dated 23.04.1988, the rent was accordingly increased time to time and in the year 2010 defendant was paying rent at the rate of Rs.3,000/- per month. It has been further contended the relationship between defendant and father of plaintiff was cordial and for 23 years Late Laxminarayan Agrawal never asked the defendants for execution of fresh agreement, as the defendants regularly paid the increased rent, as and when demanded by the father of plaintiff. It has been further contended by the defendants that they have not committed breach of clause No.4 of the rent agreement dated 24.03.1988 and the defendant No.1 has not unlawfully sub-let the suit property to defendant No.2. The defendants have stated in their written statement that the suit property has not been sub-let. The defendants have entered into partnership for the purpose of carrying the business of medicine and has not created any sub-tenancy. The defendant No.2 is partner of profit and loss in medical shop. The defendants have specifically denied that there is default in payment of rent since 2007. It has been further contended by the defendants that the father of plaintiff was not accepting the rent advanced by the defendants. It has been further contended by defendants that the suit filed by the plaintiff was premature, as same was filed before expiry of a period of two months of receipt of notice demanding the arrears of rent. The suit property was not required bonafide by the landlord for starting his business, the plaintiff had sufficient other non-residential accommodation of his own in his occupation and the suit has been filed on the false grounds to harass the tenant, therefore the suit is liable to be dismissed.

The learned trial Court on the pleadings of the party framed as many as 8 issues.

The plaintiff to substantiate his case has examined himself as PW-1 and exhibited documents namely certificate of blindness as Exhibit P-1, legal notice sent to defendants as Exhibit P-2, postal receipt as Exhibit P-3, reply to notice as Exhibit P- 4, envelope of the reply as Exhibit P-5, order of Tahsildar Durg dated 28.07.07 as Exhibit P-6, mutation order of Municipal Corporation as Exhibit P-7, Khasra Panchshala as Exhibit P-8, Form B-1 as Exhibit P-9, map as Exhibit P-10, house rent agreement dated 24.03.88 as Exhibit P-11, information received from Choice Centre as Exhibit P-12, certified copy of the agreement Exhibit P-13, Application filed under Section 45 of the Evidence Act before the Civil Judge, Class II as Exhibit P-14.

The defendant No.1 examined himself as DW-1 and the defendant No.2 did not entere into the witness box but his elder brother Shahid Hasan was examined as DW-2. The Defendants exhibited documents namely copy of the plaint filed by the defendants before Civil Judge, Class-II as Exhibit D-1, copy of written statement filed by the plaintiff in civil suit filed by the defendant Exhibit D-2, copy of the application filed under Order 22 Rule 4 CPC as Exhibit D-3, copy of order sheets as Exhibit D-4, Diary as Exhibit D-5, Partnership deed Exhibit D-6, copy of Receipts of the rent deposited before the Court as Exhibit D-7 to D-19.

The plaintiff’s witness in his examination in chief by way of affidavit reiterated the stand which he has taken in the plaint. The witness was extensively cross-examined by the defendants wherein he has stated that he is a blind person and he has stated that he is aware how to run the school for specially abled persons and also run computer classes for them. The witness has categorically stated that the Sajeed was not the tenant of his father, therefore, his father did not deposit the cheque for clearance. The witness has further stated that the defendant No. 1 has given the medical shop on rent to defendant No. 2 as sub-tenant.

The defendants’ witness Arshad Abbas has submitted his examination in chief by way of affidavit as provided under Order 18 Rule 4 of the C.P.C. reiterating the stand taken in the written statement. The witness was cross-examined and in the cross-examination he has admitted that the suit filed by him for depositing the rent before the Court has been dismissed. He has also admitted that Exhibit D-6 the partnership deed is not registered with the Dy. Registrar. He has also admitted that he has not submitted any bank statement of himself and Kamdar Medical Store. He has also admitted that in the affidavit he has not mentioned the date and month when Laxminarayan Agrawal has forcefully taken the copy in which he used to make entry regarding rent. He has also admitted that from April, 1988 to 1991 he was not having B-pharma degree. He has also admitted that he has not mentioned in the written statement from where he has taken training to run the medical stores, affidavit and in the Ex.P-4. He has also admitted that during lifetime the plaintiff’s father has not executed any agreement with him and Sajeed Kamdar. He has also admitted he is not aware whether he has given rent through cheques from January, 1992 to March, 1995. He has also admitted that he has not submitted bank statement regarding payment of rent to through cheques.

The other witness Sajeed Hasan has submitted his affidavit under Order 18 Rule 4 of the CPC supporting the case of the defendants. He has also admitted that he has not mentioned in the affidavit that he is sitting in suit property since 1988. He has also admitted that he has not produced any photographs regarding availability of one hall and 13000 Sq.ft. open land behind the suit property and also admitted that this fact has also not been mentioned while sending notice Ex.P-4 and the plaintiff has no bonafide requirement of the suit property. He has also admitted that he has not given any notice to the plaintif’s father for demand of excess rent from 1995 to 2007.

The learned Trial Court on appreciation of oral and documentary evidence available on record passed the impugned judgment dated 06.02.16 whereby the suit filed by the plaintiff was decreed under Section 12(1) (b) (c) (f) of the C.G. Accommodation and Control Act, 1961 and the defendants were directed to vacate the suit premises within two months. The Trial Court after appreciation of the evidence came to the conclusion that the defendant No.1 has sublet the premises to the defendant no.2 and the plaintiff requires the suit property for his bonafide need for running educational institution for especially for abled persons. This judgment and decree dated 06.02.2016 is being assailed in this first appeal.

Learned counsel for the appellants vehemently criticized the judgment and decree passed by the learned trial Court contending that the learned trial court failed to appreciate the suit filed by the plaintiff was premature as per Section 12(1)(a) of the Act, 1961, as the suit was filed before expiry of period of two months from the notice of demand of arrears of rent. He would further submit that the defendant No.1 has not sub-let the suit property to defendant No.2. There is partnership deed between the defendants to carry business in the suit property for profit and loss, as such it cannot be said that the defendant No. 1 has sub-let the shop. It has been further contended that merely running business by partnership in suit premises does not amount to sub-letting. He would further submit that the plaintiff has failed to establish that the defendant No.1 has sub-let the suit property to the defendant No.2. The burden of prove that the tenanted accommodation was let by the landlord to the defendant and he unlawfully sub-let the same to other, is on the landlord. The initial onus of proving sub-letting in the first instance lies upon the plaintiff, which has not been discharged by the plaintiff in the present case. To substantiate his submission he relied upon the judgment of the Hon’ble Supreme Court in case of Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and Others {(1987) 3 SCC 538} and judgment of Hon’ble High Court of Madhya Pradesh in case of Siddhnath Onkarlal and Others vs Kaluram Harlal {AIR 1981 MP 244}.

Learned counsel for the appellants would further submit that the learned trial court erred in drawing adverse inference against the defendant No.2 under Section 114 of the Evidence Act, stating that party who has failed to appear into the witness-box a presumption would arise against him without considering the fact that, in the present case the defendant No.2 has filed the written statement and produced evidence in support of his case. To substantiate his submission he would refer to the judgment of the Hon’ble High Court of Madhya Pradesh in case of Yashin Ali and others vs Gafoor Mohammad and Others {(2007) 1 MPLJ 266}. It is settled position of law that, the “sub-letting” means transfer of an exclusive right to enjoy the property, which in the present case has not been established and proved by the plaintiff to have been done by the defendant No.1 in favour of defendant No.2 and thus, the decree of eviction on the ground of sub-letting cannot be passed. In the present case the defendant No.1 has not parted with the possession of any part of the suit property in favour of the defendant No.2 and thus, the decree of eviction on the ground of Section 12(1)(b) of the Act, 1961 is liable to be set-aside. Merely on the ground that the tenant has entered into a partnership with another person and doing the business in the suit property would not amount to sub-letting as the defendant No.1 retains the possession of the premises and cannot be evicted. On perusal of impugned judgment dated 06.02.2016, it is apparent that the trial court has not framed any issue with regard to the sub-letting of the suit property by the defendant No.1 to the defendant No.2 and thus, erred in passing the impugned judgment and decree holding that the defendant No.1 has sub-let the suit property. As such, the trial court has erred in presuming sub-tenancy from the receipt of deposit of rent holding that deposit be made by defendants establishes sub-tenancy, whereas on perusal of Exhibit D-17 to D-18, it is apparent that the rent was deposited in the court by Arshad Abbas defendant No.1. The learned trial court has also erred in granting decree of eviction under Section 12(1)(c) of the Act, 1961, because the plaintiff has failed to prove the tenant has created a nuisance or has done any act inconsistence with the purpose of the tenancy or has committed an act likely to adversely or substantially affect the interest of plaintiff.

That even the plaintiff has filed an application before this court seeking framing of issue on this subject. He would further submit that the plaintiff has failed to prove and establish that, the defendants have used the premises for any illegal act and have thus committed or created any nuisance. The defendants have not committed any actionable wrong. The suit filed by the plaintiff seeking eviction on the ground of 12(1)(e) and (f) of Act, 1961, i.e. bonafide requirement, is not maintainable as no notice has been ever issued by the plaintiff of acquiring the ownership by Family Arrangement and even the suit is not maintainable in view of bar provided under Section 12(4) of the Act, 1961. The plaintiff has averred that he became the owner of the suit property on the basis of Family Arrangement in the year 2007, however the said arrangement was not brought to the knowledge of tenant and neither the plaintiff claimed the rent from the defendant No.1 up-to 2011. Since, the plaintiff/ tenant has failed to prove that the suit premises is bonafidely required by him for continuing or starting his business and failed to aver that no alternate premises is available, the plaintiff has averred that the suit premises is required by him for establishing education institute. As per the notice Ex.P-2 it is stated that the suit premises /property is bonafidely required for residential as well as non-residential purpose. On perusal of the evidence produced by the plaintiff, it is apparent that the bonafidely requirement of plaintiff of the suit property, is not genuine, as he has other reasonably suitable alternative non-residential accommodation of his own in his occupation. The impugned judgment and decree has been passed merely on the assertion made by the plaintiff that the other reasonably suitable non-residential premises owned by him and available to him is not sufficient to serve the purpose of his need for setting-up educational institute without evicting the tenant, whereas the court ought to have considered the qualities, size and suitability of the areas available with plaintiff before passing of the impugned judgment and decree on the ground of bonafide need. There is no pleading and evidence on record to grant the eviction decree under Section 12(1)(f) of the Act. The plaintiff has failed to aver and prove regarding the alternate suitable accommodation. To substantiate his submission he would refer to the judgment of the Hon’ble Supreme Court in case of Hasmat Rai vs Raghunath Prasad {(1981) 3 SCC 103},

Learned counsel for the respondent would submit that the judgment and decree passed by the learned trial Court is legal and justified and does not warrant interference by this Court. He would further submit that it is well settled position of law that tenant cannot dictate the bonafide requirement of a landlord and even from the evidence before the trial Court it is quite vivid that the plaintiff being specially abled person intends to open training institution especially for abled children as such the finding regarding Section 12(1)(f) has rightly been proved. He would further submit that the plaintiff has clearly proved before the learned trial Court that Sajeed Khan was not partner of the shop and Sajeed Khan himself has not appeared before the trial Court to depose the fact which was within his specific knowledge, thus, the learned trial Court has rightly drawn adverse inference against the defendants while passing the decree under Section 12(1)(b) of the Act. He would further submit that the tenancy starts from agreement executed between plaintiff and defendant No. 1 and the defendant No. 2 has not been able to prove how he can run the shop without the permission of landlord which clearly proves that defendant No. 1 has sub-let the shop. He would further submit that since defendant No. 2 is not the tenant but on the basis of sub-tenancy given by the defendant No. 1 he is running the shop without permission from the landlord and has given possession to defendant No. 2 which is nothing but nuisance and thus the finding regarding Section 12(1)(c) is rightly held by the learned trial Court and would pray for rejection the appeal.

I have heard learned counsel for the parties and record of the Court below with utmost satisfaction.

Before adverting to the legal submission made by the appellants and respondents it would be expedient for this Court to extract relevant provisions which are applicable for deciding the present controversy raised in the appeal.

The Act defines 'landlord' as under :-

“Landlord” - A person, who for the time being, is receiving, or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of, any other person or who would so receive the rent or be entitled to receive the rent, if the accommodation were let to a tenant and includes every person not being a tenant who from time to time derives title under a landlord.

Section 12 (1) (b), (c) and (f) of the Act provides as under :-

“12. Restriction on eviction of tenants – (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :-

(b)that the tenant has, whether before or after the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise;

(c) that the tenant or any person residing with him has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the interest of the landlord therein;

(f) That the accommodation let for non-residential purposes is required bona fide 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 owner thereof or of any person for whose benefit the accommodation is held and that the land lord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;

The plaintiff has taken ground for eviction as defendant No. 1 has given sub-tenancy to defendant No. 2 which is violation of Section 12(1)(b) of the Act. The witness examined by the plaintiff has clearly adduced evidence to this effect that defendant No. 1 has given shop to defendant No. 2 without permission from the Late Laxminarayan, the father of the plaintiff, therefore, he has filed criminal complaint against defendants and the FIR was directed to registered by the learned trial Court. Against that he has preferred criminal revision which has also been rejected. There is no cross-examination on this point though the plaintiff was extensively cross-examined by the defendants. Even the defendant No. 2 who could be the best person to prove how he is running the business in the rented shop has chosen not to appear before the trial Court. Therefore, learned trial Court has rightly drawn adverse inference against defendant No. 2. Defendant No. 1 has admitted that alleged partnership deed Ex.D-6 is not a registered deed and even from bare perusal of Ex. D-6 it will be quite vivid that this Ex.D-6 was executed on 24.09.1995 after beginning of tenancy in the year 1988. The agreement of rent was executed on 24.03.1988 between Laxminarayan Agrawal and Arshad Abbas Kamdar and clause 4 clearly provides that the party No. 2 will not sub-let the leased premises to anyone of his relatives or other persons without written consent of the party No. 1 which clearly prohibits to grant sub-tenancy to anyone and the defendant No. 1. As such, defedant No. 1 has violated the condition under Section 12(1)(b) of the Act. Thus, the plaintiff has made case for eviction of the suit land under the Act. Learned trial Court after appreciating the evidence and materials on record has recorded the finding that the appellants after issuance of notice by the landlord for eviction have not vacated the rented land, thus acted against the interest of the respondent-owners of the land. Thus, violated Section 12(1)(b) of the Act.

The Hon'ble Supreme Court in case of K. Lubna and others vs. Beevi and Others {(2020) 2 SCC 524} has held as under :-

“15. The aforesaid judgment, in our view, covers the legal principle on all fours. A bare reading of sub-para (i) of sub-section (4) of Section 11 of the said Act leaves no manner of doubt that the cause arises upon the tenant transferring his rights under a lease and sub-lets the entire building “or any portion thereof”, if the lease does not confer on him any right to do so. The proviso requires that the landlord should have sent a registered notice to the tenant intimating the contravention of the said condition of the lease and upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt of the notice, an application for eviction could be made by the landlord. Thus, sub-letting of any part of the tenanted premises gives right to eviction from the whole premises. That is how the statute reads and that is also, in our opinion, a reasonable interpretation of the same, as, if one tenancy is created it would not be appropriate to pass eviction order only in respect of a part thereof, and not the whole. The provision reading clearly, and in view of the aforesaid judicial pronouncements, there is no doubt about this proposition. This is not a case of bona fide requirement. The findings of fact in this case are not required to be closely scrutinised as the essential facts, which have been analysed by the courts below, clearly show the existence of a single tenancy. Issuance of a single notice and the filing of a single eviction petition, albeit raising different grounds for different portions of the premises, is an undisputed fact. Thus, the appellant is not expected to allege sub-letting of the whole premises if the sub-letting is only in part of the premises. No doubt the appellants have not specifically claimed that by sub- letting a portion, the whole premises is liable to be vacated, but then that is the legal consequence as is emerging from the legal position.”

The Defendant No. 1 adversely affecting the interest of the landlord has given the shop on sub-tenancy to defendant No. 2 which has been proved by the plaintiff by adducing material evidence on record. This finding is legal and justified and the same clearly establishes that defendants have adversely affected the interest of the plaintiff, thus made out a case for eviction under Section 12(1)(c) of the Act.

Learned counsel for the appellants would submit that respondent has not produced any material on record to demonstrate that the land was bonafidely required for his use, therefore, there is no material on record to attract provisions of Section 12(1)(f) of the Act for eviction of the tenants from the rented land.

On the other hand learned counsel for the respondent vehemently opposed the submission made by the learned counsel for the appellants and would submit that the plaintiff is a speciallyabled person and he intends to start training institute for speciallyabled children which is sufficient to record bonafide requirement of the suit premises, even otherwise it is well settled position of law that the tenant cannot dictate bonafide requirement of the landlord. He is the best judge to use his premises according to his need and convenience. The Hon’ble Supreme Court in Civil Appeal No. 231-232 of 2021 (Balwant Singh @ Bant Singh and Anr vs. Sudarshan Kumar and Anr) decided on 27.01.2021 has held that adequacy or otherwise of the space available with the landlord for the business in mind is not for the tenant to dictate. The Hon’ble Supreme Court in para 11 and 12 of the judgment held as under:-

“11. On the above aspect, it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate. Insofar as the earlier eviction proceeding, the concerned vacant shops under possession of the landlords were duly disclosed, but the case of the landlord is that the premises/space under their possession is insufficient for the proposed furniture business. On the age aspect, it is seen that the respondents are also senior citizens but that has not affected their desire to continue their business in the tenanted premises. Therefore, age cannot be factored against the landlords in their proposed business.

The Rent Controller in denying right to contest to the tenants and ordering handover of vacant possession to the landlord had noted that the landlord had returned to India and required the premises for his bona fide need and accordingly, the summary proceedings under Section 13B for recovery of possession of the entire building was found to be justified. It was also adverted that the present proceedings under Section 13B is the first one filed by the landlord to secure eviction and the earlier proceedings was under Section 13 of the Act. Moreover, there is no bar for a Non-resident Indian to get a building of choice vacated, under Section 13B of the Act.”

The Hon’ble Surpeme Court in case of Harish Kumar (since dead) vs. Pankaj Kumar Garg 2022 live law SC 239 decided on 07.01.2022 has held as under:-

“It is quite clear that afore stated provision seeking release of the premises on the ground of bonafide requirement does not strictly require the landlord to be “unemployed” to maintain an action. All that the provision contemplates is that the requirment so pleaded by the landlord must be bona fide.

It is to be noted that the instant premises have been in the occupation of the tenant for more than 30 years and are situated in Jawalapur near Haridwar. The facts on record indicate that the appellant had suffered an accident and he genuinely wanted his son to be settled in 5 business. It may be that the son of the appellant was have some income but that by itself would not disentitle him for claiming release of the premises on the ground of bona fide need. The need pleaded by the appellant was foun to be genuine and was accepted by the appellant authority which is the final fact finding authority. The issue with regard to comparative hardship was also answered in favour of the appellant.”

The learned counsel for the appellants vehemently submitted that the plaintiff has filed a civil suit before the expiration period of filing suit, as such the suit was not maintainable. The submission is contrary to the record as the learned trial Court while deciding the issue No. 8 has recorded its finding that the plaintiff has sent notice on 28.06.2011 (Ex. P-2) which was received by the defendants on 01.07.2011 and the suit was file on 24.08.2011. As per Section 12 (1) (a) of the the Act if tenant has neither paid nor tendered the whole of arrears of the rent legally recoverable from him within two months of the date on which a notice of demand of rent has been served on him by the landlord in the prescribed manner the tenant can be evicted. But, the plaintiff has also filed suit for eviction under Section 12(1)(b) (c)(e) and (f) which does not provide any such period of two months for filing of the suit. The learned trial Court has granted the judgment and decree on 12(1)(b), (c) and (f) as such the suit was held to be rightly maintainable by the learned trial Court, thus, the submission that premature suit was filed, deserves to be rejected and accordingly it is rejected.

From the above stated legal position and considering the materials on record, I find that there is no perversity or illegality in the judgment and decree passed by the learned trial Court, as such, the appeal deserves to be dismissed and accordingly it is dismissed.

The learned trial Court has directed the appellants to vacate and handover the suit property within two months to the plaintiffs, but the landlord is yet to secure possession. Be that as it may, this Court allows time until 09.03.2024 to the appellants to handover vacant possession of the premises. If any rent has been deposited by the appellants before the trial Court, the same shall be withdrawn by the respondent.

A decree be drawn up accordingly.