Ashok Kumar vs Babulal Sahu & Others

This is the defendant's appeal against the judgment dated 28.01.2005 passed by the IV Additional District Judge, Jabalpur in Civil Appeal No. 22-A/2003 confirming the judgment and decree of eviction dated 07.03.2003 passed by the XV Civil Judge Class II, Jabalpur in Civil Suit No. 126-A/2002.

This appeal was admitted on 29.03.2005 on the following substantial questions of law:

Whether in the facts and circumstances of the case, the findings of both the courts below that the plaintiffs had no alternative accommodation cannot be sustained?

Whether the courts below were not justified in holding that the defendant/appellant did not deposit the arrears of rent within 1 month of the service of the notice of the suit?

Whether the lower Appellate Court was not legally justified in not condoning the delay in depositing of rent and the order regarding striking out of the defence is not sustainable?

Before deciding the controversy involved in this case, brief facts are necessary to be mentioned. The plaintiffs filed a suit seeking eviction of the defendant on the ground of Section 12(1)(a) and 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as 'Act of 1961') stating that the suit shop was given to the appellant/defendant on rent at Rs.330/- per month in which he was running business of selling and repairing the watches in the name and style Deepak Watch Company.

As per the plaintiffs, the defendant did not pay the rent of the suit shop w.e.f. 01.03.1985. After reminder also when he did not pay the rent of the suit shop, on 18.09.1998 a notice was sent to him, but, even then he did not pay the rent outstanding against him. Thereafter, a suit was filed by the plaintiffs seeking decree of eviction under Section 12(1)(a) of the Act of 1961 pleading that the plaintiff No. 2 Rajendra Sahu was running business of selling newspapers and magazine from the passage of their house because he had no other suitable alternative accommodation for running his business, therefore, the suit shop was bonafidely needed by him.

The appellant/defendant filed written statement denying the plaint allegations stating that the plaintiff No.2 is not unemployed and the place from where he is running his business is sufficient for him to run the business. The defendant has also stated that plaintiff No.2 has an alternative suitable accommodation available to run his business. He has also stated that the plaintiffs have never given any rent receipt and ultimately in 1998 he refused to pay the arrears of rent. However, he has deposited all arrears of rent in the CCD and no rent is outstanding against him.

The trial court framed as many as six issues and decreed the suit on the ground of Section 12(1)(a) and 12(1) (f) of the Act of 1961. The trial court recorded the finding that the defendant was in arrears of rent, which he did not pay even after issuing demand notice by the plaintiffs and, therefore, decree on the ground of Section 12(1)(a) of the Act of 1961 for eviction can be passed against the defendant. The trial court also observed that the plaintiff No. 2 was in bona fide need of the suit shop because he had no other alternative suitable accommodation for running his business in Jabalpur and as such decree of Section 12(1)(f) has also been passed against the defendant.

In appeal, preferred by the appellant/defendant under Section 96 of the Code of Civil Procedure, the appellate court has also affirmed the judgment and decree passed by the trial court and has also directed the appellant/defendant to pay the rent at the rate of Rs.330/- from the month of March, 2003 till handing over the vacant possession of the suit shop to respondents/plaintiffs and shall also bear the cost of the litigation of the plaintiffs.

This Court while admitting the appeal, has framed substantial question of Law No.1 with regard to the finding of the courts whether the plaintiffs had any alternative suitable accommodation or not.

Learned counsel for the appellant has drawn attention of this Court to para-4 of the plaint, which reads as under:

"4. The plaintiff No. 2 was unemployed. Therefore, for the time being, he has started the business of library of newspapers, magazines and story books, which he is doing in the passage of 2' width. This business is neither suitable nor sufficient as career in life. The said passage is meant for entrance to and exist from the residential portion of the house. Therefore, it is no place for any business. The plaintiff No. 2 will be starting the business of general goods. Therefore, the tenancy accommodation is bonafidely required by the plaintiffs for starting the said business of plaintiff No. 2. The plaintiffs have no other accommodation of their own in their occupation for the said purpose. Hence, the defendant is liable for eviction on the ground under Section 12(1)(f) of the M.P. Accommodation Control Act."

The trial court has framed Issue No.3 in this regard and has dealt with the issue observing that Plaintiff No. 2 Rajendra Kumar while adducing evidence has stated about his bona fide need of the suit shop for running his business and his brother plaintiff No.1 Babulal Sahu also supported the version of plaintiff No.1. In rebuttal, defendant has not produced any evidence, but, has stated that the plaintiffs have no experience and sufficient fund to start the business. The trial court has discussed the statements of plaintiffs and has found that the passage from which plaintiff No. 2 is selling the newspaper and magazines is a common passage and the shop which is in possession of the defendant is having more space than that of the common passage and, therefore, he is in bona fide need of the suit shop. So far as the alternative suitable accommodation is concerned, since in the plaint it is categorically stated by the plaintiffs that they have no other alternative suitable accommodation in the town for running their business, then it is for the defendant to adduce the cogent evidence to rebut the said pleading of the plaintiffs. But, he did not enter into the witness box to get himself examined and only on the basis of cross-examination of the plaintiffs he tried to establish his stand that the plaintiffs had other alternative suitable accommodation. As per the trial court, even in the cross-examination of plaintiffs' witnesses nothing has come out, on the basis of which it could be gathered that the plaintiffs had another shop or accommodation available to start their business, however, it has been admitted by the plaintiffs that the other shops were in joint possession after their father's death. Plaintiff No.2 stated that there are two other shops of his brother situated in Galla Bazar and are lying vacant. He has specifically denied that he could start his business from the said shops because those shops were in possession of his brother. From the discussion made by the trial court and on the basis of evidence available on record, the trial court has very categorically observed that it is difficult to gather that plaintiffs have any other vacant shop of their own available in the town which would be suitable for running their business and, therefore, it is observed that the plaintiffs have no alternative shop. The issue has been decided by the trial court in favour of the plaintiffs.

Learned counsel for the appellant during the course of arguments has pointed out that both the courts below have not appreciated the evidence properly otherwise the bona fide need of the plaintiffs could not have been established on the basis of availability of alternative suitable accommodation, but, I am not satisfied with the contention of learned counsel for the appellant for the reason that not only the trial court but also the appellate court has made a detailed discussion in para-20 and 25 of its judgment and finally observed that it is difficult to draw an inference that the plaintiff No. 2 namely Rajendra Sahu is the exclusive owner of the shops, which are lying vacant in Galla Bazar and, therefore, his need cannot be denied on that context.

In this respect, learned counsel for the respondent/defendant has placed reliance upon a decision reported in 2017 (1) MPLJ 69-Vinod Kumar Goyal vs. Avneet Kumar Gupta in which the Court has observed as under:

"7. I have heard the learned counsel for the parties at length and have also perused the judgment of the trial Court as well as the Appellate Court and having gone through the evidence available on record, specifically that of landlord PW-1 and son of landlord PW/2. It is apparent that a shop let out to the tenant is admeasuring 18 feet in length and 10 feet in breadth. It is also undisputed that adjacent to the suit shop, the son of the landlord Gaurav Goyal is running a furniture shop. Admittedly, if the partition is removed the landlord will have enough space to run the electronic shop and the same is suitable for the purpose of business. The appellant/tenant was not able to prove that any other alternative accommodation is available with the landlord/defendant.

In view of the aforesaid facts and circumstances and the analysis of the evidence on record, the findings recorded by both the Courts below cannot be found fault with and have rightly decreed the suit.

The Supreme Court in the case of Meenal Eknath Kshirsagar (Mrs.) vs. Traders and Agencies and another, 1996(5) SCC 344 has held that it is for the landlord to decide how he desires to beneficially enjoy his property and it is not for the Courts to dictate to him the manner in which he should enjoy or utilize his property. Similar view has been taken by this Court in Kailash Chandra Shankarlal Trivedi (supra).

In the case of Akhileshwar Kumar and others vs. Mustaqim and others, (2003) 1 SCC 462, the Supreme Court has held that once the bona fide requirement of a landlord is established, as in the present case wherein there is a concurrent finding of fact to that effect and which is not assailed by the appellant in the present appeal, then the choice of the accommodation which would by more suitable for his requirement has to be left to the subjective choice of the landlord and the Court cannot thrust its own choice upon him and while discussing the availability of other alternative accommodation has held as under in para 4 :-

"4. So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No. 2. The suit was compromised and the shop was got vacated. The shop is meant for the business of plaintiff No. 2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice upon the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodations which have prevailed with the High Court are either not available to the plaintiff No. 1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No. 2, who too is an educated unemployed, should be diverted or can be considered as relevant alternative accommodation to satisfy the requirement of plaintiff No. 1, another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the felt need of one of them."

Similarly in the case of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222, wherein the landlord had other suitable accommodation available with him and on that ground the High Court had reversed the finding of the trial Court, the Supreme Court while setting aside the judgment of the High Court and affirming the choice of the landlord in respect of the accommodation held as under in para 13 :-

"13......Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one, but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."

In view of the above pronouncement by the Apex Court a conclusion can be drawn that mere availability of another accommodation with the landlord does not disqualify him from claiming eviction, therefore, no fault can be found with the findings of both the Courts below."

In view of the above, it is clear that when there was no specific evidence adduced by the defendant to show that any alternative suitable accommodation was available in the exclusive ownership of the plaintiffs, the need of the plaintiffs cannot be ignored and eviction of the appellant/defendant from the suit shop cannot be denied. Therefore, the finding given by both the courts below are not required to be interfered with. The substantial question of law No.1 is accordingly answered.

The Substantial Question of Law Nos. 2 and 3 relate to grant of decree of eviction under Section 12(1)(a) of the Act of 1961. The trial court has dealt with this issue in Issue No. 2 in its order and has observed that the appellant/defendant did not make the payment of rent w.e.f. 01.03.1985. The demand notice Ex. P/8 was sent to the defendant, but he did not submit any reply to the same although admittedly the notice was served upon him. However, he had produced the Ex. D/6 i.e. a registered letter, containing details of payment of rent to plaintiff Babulal Sahu.

As per the requirement of Section 12(1)(a) of the Act of 1961 if a demand notice is sent to the tenant and the same is duly served on him, he is under obligation to make deposit of arrears of rent demanded within a period of two months from receipt of the said notice. The defendant has admitted that the notice Ex. P/8 was served upon him on 21.09.1998, but neither he replied the same nor he deposited the arrears of rent shown in the notice within the period of two months. Although in cross-examination of the plaintiffs he has shown Ex. D/4, D/5 and D/6 suggesting plaintiffs about payment of rent on different dates, but, that has been denied by the plaintiffs. The defendant did not produce any evidence to substantiate that he was not in arrears of rent although he stated that he had deposited Rs.17,210/- in the CCD, but in support of that stand he has not filed any document and also not adduced any evidence. The trial court in paragraph-14 of its judgment has discussed all these aspects and has finally given the finding that despite demand notice Ex. P/8 served upon the defendant on 21.09.1998 he has not deposited the said amount within two months i.e. before 21.11.1998 and has given finding about arrears of rent.

The appellate court in para-17 and 19 of its judgment has discussed the evidence adduced by the parties regarding payment and non-payment of arrears of rent and finally approved the finding given by the trial court.

Learned counsel for the appellant has relied upon the decisions reported in 1992 MPLJ 90 - Satish Chandra Vs. Janki Prasad and 2008 (1) MPLJ 114 - Sonabai vs. Kushum and has contended that if at all the defendant has committed any default in payment of rent then he should be given benefit of Sub Section (3) of Section 12 of the Act of 1961, but, I am not convinced with the contention raised by the learned counsel for the appellant for the reason that he failed to demonstrate as to why he has committed default in payment of rent. As per the settled principle of law and as per the requirement of respective provision it is clear that when the defendant complies the requirement of Section 13(1) of the Act of 1961 and if he does not commit default in payment of rent in accordance with the requirement of said provision then only he can be given benefit once as per the requirement of sub-section (3) of Section 12 of the Act of 1961, but here in this case the learned counsel for the appellant has failed to show as to how he can be given benefit of the said provision. However, I am not impressed by the contention raised by the learned counsel for the appellant and also on the cases on which he has placed reliance for the reason that the appellant/defendant has also filed an application under Order 13 (1) of the Act of 1961 showing as to in what manner he has deposited the rent. This application filed before the First Appellate Court is of 2004. It also indicates that the appellant has not fulfilled the requirement of Section 13(1) of the Act of 1961 and it is not only once, but, on several occasions, the said provision has been violated. Therefore, the appellant cannot be granted the benefit as he continuously vilated the provision of Section 13 of the Act of 1961 and made defaults in payment of arrears of rent and that can be gathered from the details given in the application showing deposit made by the appellant.

Learned counsel for the respondents has placed reliance upon a decision reported in 2006(4) MPLJ 115-Rajendra Kumar Jain vs. Laxmi Bai in which the High Court has considered the respective provision and its impact and also as to when the benefit is available to the tenant. The High Court in para-8 considering the said provision has observed as under:-

"8. To consider the rival contention of the parties, the order dated 19-3-1998 passed by the trial Court may be seen. This order was passed by the trial Court on an application filed by the landlord under section 13(6) of the Act in which it is alleged that the tenant has not deposited the entire rent nor has furnished the receipts of deposit of the rent. On the aforesaid application, the trial Court very specifically passed the order that one week time is allowed to the tenant to furnish the deposit receipts in compliance of the order dt. 6-1-1998 and shall also furnish the particulars of deposit of the rent to the Court, otherwise the defence of the tenant shall be struck out. From the perusal of the entire order, nowhere the trial Court had extended the time to deposit the amount to the tenant in continuation to order dt. 6-1-1998. When time period was not extended by the trial Court, the tenant on deposit of the rent on 20-3-1998 was under an obligation to file an application for seeking condonation of delay or extension of time for depositing the rent. In the absence of which, it can very well be presumed that the tenant has failed to comply with the provisions of section 13(1) of the Act or order dated 6 -1-1998 by the trial Court and the landlord was entitled for decree under section 12(1)(a) of the Act. The benefit of section 12(3) of the Act is available only when the provisions of section 13(1) of the Act are complied with. In the absence of which the tenant could not invoke benefit under section 12(3) or 13(5) of the Act and the landlord was entitled for a decree under section 12(1)(a) of the Act. The appellate Court considering the aforesaid aspect has granted decree under section 12(1)(a) of the Act in which there is no infirmity nor any substantial question of law arises in this appeal."

From the above, it is clear that before the courts below the defendant failed to establish that he has complied the provision of Section 13(1) of the Act of 1961. In absence of that, he is not entitled to get the benefit of Section 12 (3). Accordingly, the Substantial Question of Law Nos. 2 and 3 are answered.

Learned counsel for the appellant has also submitted that during pendency of the appeal plaintiff No. 2 Rajendra Sahu died and, therefore, after his death the bona fide need for which the suit has been decreed has come to an end. Therefore, the decree under Section 12(1)(f) of the Act of 1961 is not sustainable against the appellant and the same is liable to be quashed. Learned counsel has also placed reliance upon the decisions reported in JLJ. SN 11 (Short notes on Cases) -Ramlal vs. Vinayakrao (SA No. 417 of 1975 (I):Decided on 26.09.1977), 1974 MPLJ 64 (Notes on Cases 103) - Satwanti Bai v. Punla Bai and M.P. Weekly Notes 39 -Nabi Ahmed v. Ram Prakash Rastogi (SA No. 169 of 1982 (G): decided on 12.09.1989) and submitted that since the plaintiff No. 2 died during pendency of appeal and the bona fide need was established for him only, therefore, the decree cannot be passed on the ground of Section 12 (1)(f) of the Act of 1961. He has placed reliance upon the judgment of reported in AIR 2004 SC 3484-Shakuntala Bai & Ors. Vs. Narayan Das & Ors. and submitted that after the death of plaintiff No. 2 the plaintiffs/respondents have to establish their bona fide need whether the same still exists or not, but no such amendment in the pleading has been made by them to prove this fact. Therefore, the decree passed in favour of the plaintiffs under Section 12(1)(f) of the Act of 1961 cannot be maintained. However, I am not satisfied with the contention raised by the learned counsel for the appellant because the Supreme Court in the same case has observed as under:

"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 excecuting 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.

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 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.

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."

Here in this case plaintiff No. 2 died during pendency of second appeal and his legal heirs have already been brought on record. As per the legal representatives, the wife of the plaintiff No. 2 alongwith two sons can continue with the business of plaintiff No. 2 and, therefore, it is not proper to say that the decree passed under Section 12(1)(f) of the Act of 1961 cannot be maintained. However, in view of the law laid down by the Supreme Court it is clear that even after death of a plaintiff for whom the bona fide need has been established, the decree of eviction cannot be denied only on the ground that the person for whom the bona fide need established has died. The legal representatives of the deceased plaintiff have been brought on record. Therefore, the bona fide need is already established before the courts below cannot be said to have lapsed unless it is established that there is nobody in the family of the deceased person to run the business for which need has been established. Here in this case, legal heirs of deceased plaintiff have already been brought on record and there is no additional evidence available showing that the family members of the deceased plaintiff cannot start the business for which the suit shop was needed. Under such circumstance and relying upon the decision of the Supreme Court in the case of Kamleshwar Prasad vs. Pradumanju Agrawal (dead) reported in 1997 AIR SCW 2310 in which it is held by the Court that "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 son", I do not find any substance in the contention raised by the learned counsel for the appellant, therefore, the same is rejected and only on the ground of subsequent development that took place, the decree of eviction, which has already been affirmed by both the courts below under Section 12(1)(f) of the Act of 1961 cannot be set aside. The substantial questions of law are answered accordingly.

Accordingly the judgment and decree passed by both the courts below are affirmed as they are based upon well reasoned findings arise by both the courts below after appreciating the proper evidence. The appeal is, therefore, without any substance and is hereby dismissed.