Babu Khan vs Dr. R.D.S. Ahluwalia and Another

K.K. Lahoti, J.—Defendant aggrieved by judgment and decree passed by lower appellate Court has filed present appeal by which appellate Court reversed the judgment and decree passed by the trial Court and decreed the suit of plaintiff/respondent u/s 12(1)(e) and (h) of M.P. Accommodation Control Act, 1961 (hereinafter referred as the Act).

This appeal was admitted on 27-8-2001 on following substantial questions of law:-

(i) Whether the finding of the first appellate Court that the plaintiffs bona fide require the suit accommodation for the residence of their son and his wife and for that purpose they have no other reasonably suitable residential accommodation of their own in the city, is perverse?

(ii) Whether in view of the fact that the defendant had deposited the rent in appeal before the delivery of the judgment, the delay in the deposit of the rent during the pendency of the appeal should have been condoned and his defence against eviction should not have been struck out?

Learned counsel for the appellant submits that he has filed an application I.A. No. 2600/2002 under Order 41 Rule 27 CPC by which he sought permission for taking certain documents on record. This application may be allowed. Learned counsel for the respondent submits that these documents were filed in the trial Court but the appellant has not asked any question on these documents. From the perusal of the trial Court record it appears that these documents are available at pages 27 and 28 of the record. At this stage learned counsel for the appellant submits that he is not pressing this application filed under Order 41 Rule 27 Civil Procedure Code, consequently this application is dismissed as not pressed.

So far as first question is concerned, the trial Court granted decree for arrears of rent against the appellant. Decree was passed in following terms:-

Plaintiff is entitled to arrears of rent for Rs. 418/- and rent from the date of filing of the suit at the rate of Rs. 22/- per month.

The trial Court has also directed that the amount deposited by the appellant will be adjusted in the aforesaid rent.

Learned counsel for the respondent submits that the plaintiff filed an application before the trial Court on 6-3-2000 u/s 13(6) of the Act, but the trial Court did not decide this application, which is apparent from the perusal of the record. The plaintiff raised this ground before the lower appellate Court, in appeal memo as ground no. 7. During the course of argument before appellate Court defendant submitted that he has deposited the rent upto date of judgment.

The appellate Court found that

(a) there is delay in depositing the rent,

(b) the appellant has neither deposited the entire rent, nor filed any application for condonation of delay.

Relying on a decision of the Apex Court in the case of Jamnalal vs. Radheshyam, 2000 (2) MPLJ 385 : 2000 (2) JLJ 1, and a judgment of this Court in the case of Rajesh Goel Vs. Smt. Mullo and Others, , the Court below found that the appellant has not complied with section 13 of the Act and the defence of appellant was struck out. It is not in dispute that the appellant has not deposited arrears of rent and there was no application to condone the delay u/s 13 of Act. The appellant deposited Rs. 400/- only on the date of judgment, but no application for condonation of delay was filed. It was obligatory on the part of the appellant to deposit the entire arrears of rent and to comply with section 13 of the Act by depositing the rent every month, even in the appeal also. But, he has failed to do so and has not sought any condonation of delay. In view of the aforesaid I do not find any infirmity or error in the order by which the defence of the appellant was struck out.

So far as ground u/s 12(1)(e) of the Act is concerned, lower appellate Court has recorded a finding in para 10 of the judgment, that the plaintiff is having some accommodation in the second floor of the house. In first floor there is hospital, in second floor there is store of hospital and in remaining three rooms his two sons, daughter-in-laws and one grand son is residing. Plaintiff is having three bed rooms, one drawing-cum-dining room and Balcony is in his possession. The contention of the plaintiff in the Court below was that the suit accommodation is required bona fidely for the residence of his son who is a Doctor by profession and he wants to reside separately with his family. The suit was filed for bona fide necessity for his son and also for reconstruction of the suit accommodation. In this regard plaintiff has also taken a ground u/s 12(1)(h) of the Act to reconstruct the suit accommodation. Learned counsel for the appellants submits that the ground u/s 12(1)(e) and (h) are contradictory in nature. He relied on a decision of this Court in case of Parmeshwari Devi and another vs. Takur Natthu Singh in S.A. No. 772/1995 decided on 27-9-1996 (1998) (1) MPJR 462). He relied on paras 27 and 28 of the aforesaid judgment wherein this Court held:

The result of the aforesaid discussion is that this Court is of the view that the plea of the respondent/landlord that he required the suit house bona fide for the residence of himself and that of the members of his family cannot stand together with the plea of the landlord that he required the suit house bona fide for reconstruction. On the contrary, the requirement of bona fide reconstruction of the suit house cannot be pleaded simultaneously with the plea of bona fide requirement for personal residence. Both the pleas are mutually destructive of each other and the very fact that they were pleaded together shows that none of them are bona fide. They are so inconsistent that one cannot be alternative of the other. The landlord can take only one of pleas so that is be bona fide. The moment he chooses the second with the first, both destroy each other. The Court is aware of the Order VII, Rule 7 and Order VII, Rule 8 of the Code of Civil Procedure. The rules of pleadings do permit alternative and inconsistent pleadings. However, inconsistency in pleadings cannot be taken to such lengths that the very element of choice is destroyed........................

In the opinion of this Court, this Court cannot countenance any one of the pleas for each one of them has to be bona fide. It is, therefore, not necessary to consider other grounds, as the appeal succeeds on the Question No. 3, framed by this Court in exercise of its powers u/s 100(5) of the Code of Civil Procedure. It is true that landlord had option to take one of the pleas at an early stage of the suit, but since he led evidence and obtained a decree under both, he cannot be permitted to withdraw anyone of the pleas. The permission shall destroy the bona fide nature of plea required u/s 12(1)(e) or section 12(1)(h) of ''the Act''. The judgment and decree passed by the Courts below have to be set aside, in S.A. No. 772 of 1995.

Learned counsel for the respondent submits that the aforesaid judgment of this Court has been impliedly overruled by Apex Court in case of M/s. Modern Tailoring Hall etc. Vs. H.S. Venkusa and others, wherein Apex Court held:

2.................................................................. The present cases are such in which the landlord has sought eviction of the tenants u/s 21(1)(h) of the Act on the ground that he bona fide requires the premises for his own use and occupation but after demolition and reconstruction. The point arising for consideration is whether the landlord''s claim was rightly based u/s 21(1)(h) or was it founded u/s 21(1)(j)?

The consistent view of the Karnataka High Court in a series of decisions starting from the case titled as Smt. Rohinibai vs. Vishnumurty, ILR (1980)1 Kant 340 is that the two provisions, i.e., section 21(1)(h) and section 21(1)(j) are mutually exclusive and that demolition and reconstruction of a premises by the landlord for his own use and occupation, after getting an order of eviction, clearly falls under CL. (h) of section 21(1) and not under CL. (j). It has been viewed that the plea of the landlord for bona fide requirement, for his own use and occupation of the premises u/s 21(1)(h), would include the occupation of the premises after making any alteration or a new construction on securing an order of eviction. This extended meaning was given by the Karnataka High Court on the basis of a decision reported in Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, , a decision by a three Member Bench of this Court. Identical provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 were examined and it was held that the demolition of the existing building and subsequent erection of a new building were only intermediate steps in order to make the building fit for occupation by the landlord. A hitch was thus carved that till the new building was altered or reconstructed to the satisfaction of the landlord, his obligation to enter the premises within the statutory provided period got extended. It was also held that the provisions relating to demolition and reconstruction saddled with the obligation to provide to the tenant re-entry could not possibly apply to the case where the landlord reasonably and bona fidely requires the premises for his own occupation even if he had to priorly demolish the premises and erect a new building on it. And further, it was viewed that qualitatively the eviction under the provision, such as provided u/s 21(1)(j) of the Act presently in hand, would apply to cases where the landlord does not require the premises for his own occupation, but requires it for erecting a new building to be let out to the tenants. Thus, it is obvious that the Karnataka High Court has maintained the distinction between the two provisions sharply and has never let these provisions overlap with each other.

There is a lone vice however made by a learned single Judge of High Court in ILR 1990 Kan 4060 P.K. Upadhyaya vs. A. Venkatesh to rule that if there be with the Court an occasion to choose between Cls. (h) and (j) in directing eviction of a tenant, it will have to lean in favour of CL (j) rather than ordering eviction under CL (h) of section 21(1) of the Act. This has been pressed into service to opt for eviction u/s 21(1)(j). This attempt of the learned single Judge to demolish the exclusivity of the two sub-clauses (j) and (h) of section 21(1), well drawn by the Division Bench in Smt. Rohinibai vs. Vishnumurthy, ILR (1986) 1 Kant 340 is uncalled for. The ground of eviction given in the two provisions being mutually exclusive have flowing therefrom separate individual rights and obligations and they cannot be permitted to overlap so as to confer on the Court the discretion of employing one provision over the other. An application of the landlord, if not falling u/s 21(1)(h), would on its own, merit dismissal. The Court cannot treat it in its discretion as one u/s 21(1)(j) and order an unwanted eviction. The distinction qualitatively has to be maintained. We therefore decline to take a view to the contrary, even if it be possible, than the one taken by the High Court based as it is on the decision of this Court in Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, .

This question has been considered by Single Bench of this Court in case of Smt. Pushpa Devi Vs. Murarilal and another, , wherein this Court held:-

The learned counsel for the appellant has placed reliance on the decision of this Court in Smt. Parmeshwari Devi vs. Thakur Natthu Singh 1998 (1) MPJR 462. In Smt. Parmeshwari Devi''s case (supra), it has been laid down that the plea of the landlord that he requires the suit house bona fide for the residence of himself cannot stand together with his plea that he requires the suit premises bona fide for reconstruction. It has, further, been laid down that the requirement of bona fide reconstruction of the suit house cannot be pleaded simultaneously with the pica of bona fide requirement for personal residence. Both the picas are mutually destructive of each other and the very fact they were pleaded together shows that none of them are bona fide. The learned counsel for the appellant has, therefore, contended that in view of the decision in Smt. Parmeshwari Devi''s case (supra), both the pleas cannot be taken together and therefore the decree u/s 12(1)(e) of the Act could be taken together and therefore the decree u/s 12(1)(e) of the Act could not have been passed by the learned Courts below.

Having given a thoughtful consideration to the above contention of learned counsel for the appellant. I am of the view that it cannot be accepted. In Smt. Parmeshwari Devi''s case (supra), both the pleas were taken simultaneously and were independent while, as pointed out earlier, in the given case both the pleas were interconnected. It has specifically been pleaded by the plaintiffs-respondents that they will occupy the suit premises after getting it repaired. As pointed out earlier, in para 3 of his statement, plaintiff Murarilal (P.W.3) has categorically stated that he and his family members will occupy the suit premises after getting it repaired. If the two pleas i.e., pleas u/s 12(1)(e) of the Act and 12(1)(g) or (h) of the Act are interconnected and have not been taken independently, a decree u/s 12(1)(e) of the Act can legally be passed. I am fortified in my view by the decision of Apex Court in K.A. Anthappai Vs. C. Ahammed, wherein it has been laid down that the claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on ground that building requires repairs and alterations before landlord can occupy the same. It has also been laid down by the Supreme Court in Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, that in case the landlord requires the tenanted premises bona fide and genuinely for his own occupation, after getting it reconstructed, he need not claim a decree for eviction under clause (h) of sub-section (1) of section 12 of the Act.

For the reasons stated above, I am of the considered opinion that in view of the fact that the plaintiffs-respondents came up with a plea that they required the suit premises bona fide for eviction of the defendant/appellant as well as they claim that the Suit premises was required by them for repairs u/s 12(1)(g) of the Act, the claim of the respondents u/s 12(1)(e) of the Act can be said to be bona fide and therefore this appeal is not liable to be allowed.

The aforesaid view is consistent since 1964, whereas the Apex Court in case of Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, has considered the law and held that the plaintiff may file the suit for bona fide necessity and for reconstruction also.

The provision of section 12(1)(e) of the Act applies where the landlord bona fide requires the premises for his own occupation. Section 12(1)(h) applies to cases where the landlord does not require the premises for his own occupation, but requires them for erecting a new building which is to be let out to the tenant. Once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover the possession of it from the tenant, in view of section 12(1)(e) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making necessary alterations. The landlord can occupy a place by making use of it in any manner. In a case like present, if the landlord on getting possession start the work of demolition within the prescribed period, they are entitled to get a decree for eviction of the premises in order to erect a building fit for their occupation. In the circumstances, the provision of section 12(1)(e) or (h) are not inconsistent and in fact they are to be read harmoniously, in the facts and circumstances of a case. In the present case when the landlord has established his bona fide requirement for residence of suit accommodation and after getting the possession of accommodation, if landlord makes any addition or alteration or rebuilding to it, then it cannot be said that the need is not bona fide. The ground u/s 12(1)(e) and (h) may exist simultaneously and are not conflicting and has to be decided in the facts and circumstances of each and every case.

In view of the aforesaid, I do not find any merit in the contention raised by the learned counsel for the appellant that the plea of bona fide necessity and reconstruction of the suit accommodation is not permissible to the plaintiff. The plaintiff has successfully proved his bona fide necessity of the suit accommodation for his son Dr. Gurvinder Ahluwalia. He has no alternative accommodation in the town of Jabalpur for the necessity of his son. The findings of appellate Court are confirmed. There is no merit in this appeal, accordingly it is dismissed.