Balkishan Arora vs Kanhaiya Lal Agrawal

Sheel Nagu, J.—This second appeal filed u/s 100 of the CPC assails the judgment and decree of the first appellate Court passed on 26.07.2013 in Civil Appeal No. 1A/2013 by the Third Additional District Judge, Gwalior, whereby the decree of eviction passed by the trial Court has been upheld. Learned counsel for the rival parties are heard.

The basic facts giving rise to the instant second appeal are that suit for eviction for bonafide need of business was instituted u/s 12(1)(f) of the M.P. Accommodation Control Act, 1961 (for brevity the "Act of 1961"). The said suit was decreed in favour of the plaintiff/landlord by finding the need projected by the landlord to be bonafide and the defendant/tenant having failed to prove that the landlord has any alternative suitable accommodation within the Municipal limits of Gwalior town.

Learned counsel for appellant/tenant primarily contends that the finding of non-availability of suitable alternative accommodation rendered in favour of landlord is perverse. It is further contended that the application under Order 41 Rule 27 of CPC preferred at the first appellate stage by the defendant/tenant was wrongly rejected.

A perusal of the judgment and decree passed by both the Courts below reflects that while considering the issue of non-availability of suitable alternative accommodation with the landlord, the trial Court framed issue no. 2 in this regard and found after marshalling of evidence adduced by the rival parties that even if the shop at the rear of the suit accommodation is treated to be vacant, yet the same cannot fall within the category of "suitable" for satisfying the need of the landlord, the Court also held that the decision about the suitability of the alternative accommodation is to be best left for the landlord to decide and, therefore the said issue was rightly decided in favour of the landlord. Concurrent finding of fact has been rendered in this regard.

This Court thus does not see any reason after perusing the judgment and decree of both the Courts below to take a different view than the one taken by the Courts below.

As regards rejection of the application under Order 41 Rule 27 of CPC is concerned, the first appellate Court has dealt with the issue in detail and has found that the basic pre-requisites contained in clause (aa) of Order 41 Rule 27, CPC could not be satisfied by the appellant/tenant and, therefore the said application appears to have been rightly rejected.

After considering the arguments of the learned counsel for the rival parties and perusing the judgment and decree passed by both the Courts below, this Court does not see any reason to interfere in the matter as neither any of the proposed substantial question of law nor any new one arise for consideration. In view of the above, this second appeal deserves to be and is, therefore rejected at the admission stage sans cost.