Bhagwat Swaroop Sharma vs Bhagat Ram

The present appeal under Section 100 of CPC has been preferred by the appellant/plaintiff against the judgment and decree dated 30/08/2008 passed

by Third Additional District Judge, Gwalior in Civil Appeal No. 6-A/2008 reversing the judgment and decree dated 31/7/2007 passed by Third Civil

Judge, Class-II, Gwalior in Civil Suit No. 79-A/2004.

Precisely stated facts of the case are that appellant/plaintiff instituted a civil suit for eviction of suit shop on the ground under Section 12 (1) (f) of

the M.P. Accommodation Control Act. As per the plaintiff, he is owner of the house bearing Municipal No. 69/42 situate at Daulat Ganj, Lashkar,

Gwalior. Respondent/defendant was a tenant in the said house on monthly rent of Rs. 1,000/-. The defendant was initially inducted as tenant in the suit

shop by plaintiff's father Shri Shivram and after his death, the defendant became tenant of plaintiff and started giving rent to the plaintiff.

Plaintiff's only son Gopal Swaroop completed his M.Com. and was in search of some business opportunity and therefore, wanted to start business

of retail electrical items. The plaintiff and his son are having no alternative non-residential accommodation in the municipal area of Gwalior. Therefore,

he wanted the suit shop for this purpose. As per the pleadings, on 1/7/2003, the plaintiff stated the defendant to vacate the suit shop up till 30/9/2003,

but since defendant did not give vacant possession of the suit shop, therefore, suit was filed.

Defendant filed written statement and denied the claim of the plaintiff stating that the plaintiff is not in bona fide need of the suit shop for his son to

start the business of retail electrical items. As per the submission, plaintiff's real intention was to get the rent enhanced. Plaintiff's son does not reside

in Gwalior but is residing in Delhi and doing business of his own and therefore, it was pleaded that plaintiff does not require the suit shop for his son.

During the pendency of the suit, defendant amended the written statement and incorporated pleadings regarding starting of coaching classes in the

name and style of Saraswati classes by son of plaintiff in the newly constructed hall on the first floor above the suit shop. 100 students are coming and

classes are being run regularly, therefore, bona fide need of the plaintiff was disputed. As a consequence, after amendment of written statement,

plaintiff also amended the plaint and denied any new construction of hall and running of coaching classes. Trial Court framed issues and allowed the

parties to led evidence. Plaintiff examined himself as PW/1, his son Gopal Swaroop as PW/2 and one Triyambkam Surange, as PW/3 and documents

were exhibited from Ex. P/1 to P/16. In rebuttal, defendant examined himself as DW/1, Mahesh Kumar Manchanda as DW/2, Mahaveer Prasad Jain

as DW/3.

After appreciation of submissions, pleadings and evidence of parties, trial Court decreed the suit on the ground of bona fide need by giving findings

that plaintiff is in bona fide need and he is not having any alternative accommodation. Against the judgment of trial Court, defendant preferred civil

regular appeal before the first appellate Court and same was allowed. Appellate Court reversed the judgment of the trial Court. Therefore,

appellant/plaintiff/landlord is before this Court under Section 100 of CPC.

The appeal was heard on admission on 26/2/2010 and was admitted on following substantial questions of law:

(1) Whether the learned first Appellate court by ignoringand not considering the mark-sheet Ex. P.15 held that the bona fide need arose to the plaintiff

in the year 1993 when the plaintiff's son was minor at that time, has committed serious error in dismissing the suit of the plaintiff under Section 12 (1)

(f) of the M.P. Accommodation Control Act ?

(2) If the rent of the suit premises was enhanced in theyear 1993 and the present suit for eviction on the ground of bona fide requirement was filed in

the year 2003 when the son of the plaintiff became major, can it be said that the need of plaintiff's son is not bona fide and the real intention was to

enhance the rent ? If not, whether the first Appellate Court has committed substantial error of law in dismissing the suit of the plaintiff on this ground ?

(3) Whether approach of the learned first Appellate courtholding the residential area of the plaintiff to be nonresidential and thereby dismissing the suit

of the plaintiff holding that he is having an alternative accommodation of his own, is erroneous and contrary to the evidence placed on record ?

(4) Whether the learned first Appellate Court hascommitted substantial error of law in reversing the judgment of the trial Court, decreeing the suit of

the plaintiff on the cogent reasons assigned by learned trial Court ? If yes, whether the decision of learned first Appellate court sans de hors to the

dictum of the Supreme court in Madhusudan Das Vs. Smt. Narayani Bai and Ors., AIR 1983 SC 114 and Nizamuddin Ahmed Vs. Narmada Prasad

and Ors., 1976 JLJ 6 (SC) ?

According to learned counsel for the appellant, appellate Court erred in passing the impugned judgment and decree and reversing the findings given

by the trial Court which were based on due appreciation of evidence led by the parties. When the appellant has specifically filed the documents in

respect of educational qualification of his son and in his evidence he has categorically submitted that his son has completed his M.Com in year 2003

then appellate court erred in passing the impugned judgment and decree. Similarly, the basis on which the case was reversed was misappreciation of

evidence regarding availability of accommodation at first floor. First floor can neither be termed as suitable accommodation nor it was for any

nonresidential purpose. It was a residential space and therefore, cannot be used for non-residential purpose like shop for electrical items. Once

appellant proved that his son did his M.Com in year 2003 and he is having no other suitable accommodation then appellate court erred in passing the

impugned judgment and decree on the basis of evidence of plaintiff PW/1. He pleaded that appellant has bona fide requirement for the suit shop.

On the other hand, learned senior counsel for the respondent opposed the prayer of appellant and submits that the plaintiff who appeared in witness

box as PW/1 is not physically and mentally fit and therefore, no business can be done and if business is to be done then adjacent shop is vacant. He

also raised the point of availability of alternative accommodation and submits that first floor is used by the plaintiff for running a coaching class by his

son Gopal Swaroop and therefore, plaintiff does not have any bona fide requirement of the suit shop to start new business. He also raised the point

that Gopal Swaroop is already employed and running coaching classes,therefore, he is not required to start new business of electrical goods.

Applications under Order XLI Rule 27 CPC and Order VI Rule 17 CPC was also filed by the respondent/tenant during the pendency of present

appeal stating that during the pendency of present appeal, appellant/plaintiff has let out a shop adjacent to the shop shown in the plaint map as M/s. A

& A Ceramics owned by one Rajeev Bansal and therefore, he wanted to bring some photographs, receipt and letter dated 21/2/2011 as evidence.

Therefore, these documents were pleaded to be taken on record alongwith the pleadings as contained in the application under Order VI Rule 17 CPC

in this regard.

Appellant filed the reply to the said applications and submitted that appellant has not let out any shop. In fact, the appellant's tenant Girraj Kumar

with the help of his son is doing business in the shop, situated just adjacent to suit shop in the name of M/s. A & A Ceramics and prior to this he was

doing business in the said shop in the name of M/s. Agrawal Sanitary and Pipes. Therefore, adjacent to suit shop, the old tenant is occupying the shop

but he has changed the nature of business. It is also submitted that respondent never pleaded that appellant has received the vacant possession of the

said shop from Girraj. Therefore, dismissal of both the applications was prayed for.

Heard learned counsel for the parties at length and perused the record.

The present matter pertains to eviction under Section 12 (1) (f) of the Act of 1961. Appellant/plaintiff filed the suit for eviction for bona fide

requirement for starting business of electrical items by his son Gopal Swaroop. For getting the decree of eviction for bona fide requirement, plaintiff

has to plead and prove his bona fide requirement as well as non-availability of suitable accommodation in the municipal area.

Plaintiff has pleaded in his plaint (in October, 2003) about the bona fide requirement with specific averments, on the basis of bona fide requirement

for his son, for starting retail business of electrical goods. Plaintiff specifically pleaded in para 3 of the plaintiff that his son has taken M.Com. Degree

this year only. Plaintiff also pleaded that no other suitable accommodation is existing in the municipal limits of Gwalior.

The requirement of pleading was complete. Now it is to be seen, whether the appellant proved his case for bona fide requirement as per the

substantial questions of law so framed.

The appeal was admitted by this Court on 26/2/2010, on the following substantial questions of law:

(1) Whether the learned first Appellate court by ignoringand not considering the mark sheet Ex. P.15 held that the bona fide need arose to the plaintiff

in the year 1993 when the plaintiff's son was minor at that time, has committed serious error in dismissing the suit of the plaintiff under Section 12 (1)

(f) of the M.P.Accommodation Control Act ?

(2) If the rent of the suit premises was enhanced in theyear 1993 and the present suit for eviction on the ground of bona fide requirement was filed in

the year 2003 when the son of the plaintiff became major, can it be said that the need of plaintiff's son is not bona fide and the real intention was to

enhance the rent ? If not, whether the first Appellate Court has committed substantial error of law in dismissing the suit of the plaintiff on this ground ?

(3) Whether approach of the learned first Appellate courtholding the residential area of the plaintiff to be nonresidential and thereby dismissing the suit

of the plaintiff holding that he is having an alternative accommodation of his own, is erroneous and contrary to the evidence placed on record ?

(4) Whether the learned first Appellate Court hascommitted substantial error of law in reversing the judgment of the trial Court, decreeing the suit of

the plaintiff on the cogent reasons assigned by learned trial Court ? If yes, whether the decision of learned first Appellate court sans de hors to the

dictum of the Supreme court in Madhusudan Das Vs. Smt. Narayani Bai and Ors., AIR 1983 SC 114 and Nizamuddin Ahmed Vs. Narmada Prasad

and Ors., 1976 JLJ 6 (SC) ?

REGARDING SUBSTANTIAL QUESTION OF LAW NO. 1.

Plaintiff has produced documentary evidence in support of his submissions that his son has completed M.Com. Degree course in year 2003 andÂ

now he is unemployed, therefore, he requires the suit shop for bona fide need of his son to start business of retail electrical goods. Plaintiff has

exhibited, High School Certificate Examination of his Son vide Ex. P/15 and also filed mark-sheet of M.Com. (Final) of his son vide Ex. P/16,which

indicate that the mark-sheet is of year 2003 and issued on 24/5/2003. Suit was filed in October, 2003. Therefore, plaintiff has rightly stated that his son

has completed his M.Com. this year only and is still unemployed. In year 2003, son of plaintiff completed M.Com. and for five months he was

unemployed is the fact which cannot be doubted in light of mark-sheet produced by plaintiff vide Ex. P/16 as well as specific pleadings made in par 3

and 4 of the plaint.

From the evidence of plaintiff, it also appears that plaintiff in his deposition has specifically pleaded that his son has completed M.Com. in year

2003. If the said facts are seen in light of the findings given by the appellate Court, then it appears to be perverse. By taking advantage of minor

factual variance in cross-examination, it cannot be inferred that son of plaintiff completed M.Com. in year 1993. Plaintiff when specifically pleaded

that his son completed M.Com. then he filed the suit for eviction for bona fide need of his son to start business. This is very obvious and practical

cause, once a person completes his education then prospectus of his earning comes. Thereafter, on the basis of his qualification and intelligence,

parents help in taking decision about his future prospects. Therefore, there was nothing factual incorrectness or intentional malice to say that plaintiff

got the bona fide need of suit premises in year 2003 when his son completed M.Com. Degree Course. Further, defendant, Bhagat Ram (DW/1) in

para 22 of his deposition has admitted that he has no information about the age of plaintiff's son in year 1993. He says that no document has been filed

in this regard. The said fact, however, if seen in juxtaposition to Ex. P/15 and P/16, then it appears that the date of birth was mentioned in those

documents. Therefore, defendant could not establish the fact that in year 1993 bona fide need arises to the plaintiff. That statement also goes

against the cause of defendant, which has been overlooked by the first appellate Court. When defendant did not know the age of plaintiff's son in year

1993 then how it could have inferred that he was not minor in year 1993. Whole gamut of facts were improperly assessed by the appellate Court and

thereby it caused perversity in appreciating the evidence. Appellate Court committed serious error in dismissing the suit of the plaintiff on flimsy

grounds ignoring the mark-sheets Ex. P/15 and P/16 and so also evidence of plaintiff, which is clear in para 21 of his submissions.

REGARDING SUBSTANTIAL QUESTION OF LAW NO. 2:

Taking the cue from the earlier substantial question of law discussed above, discussion is to be continued and discussion made in the above

substantial question of law would partly be applicable for the present one also.

The rent of the suit shop was enhanced in year 1993 and present suit for eviction for bona fide requirement was filed in year 2003, when the son

of plaintiff became major and completed his M.Com. Degree course. Between year 1993 to 2003, 10 years gap exists. Defendant who appeared in

witness box as DW/1, in para 22 and 23 admitted that no dispute for enhancement of rent occurred between the parties. When defendant lived

as tenant from 1993 to 2003 peacefully then it cannot be inferred that the need of the plaintiff's son is not bona fide and the real intention was to

enhance the rent. Once a complete decade has passed since the rent enhanced, then such conclusion is nothing but perversity in appreciating the

evidence.

Even otherwise, if the enhancement of rent in year 1993 is to be interpreted as previous conduct, then also, bona fide requirement of the landlord (

which cropped up subsequently) cannot be sacrificed at the altar of landlord's previous conduct. Here appellate Court erred in construing

enhancement of rent in year 1993 as basis for considering the bona fide requirement in year 2003 as ploy to extract more rent. This is absolutely an

absurd proposition and cannot be countenanced. Once the plaintiff has caused enhancement of rent in respect of tenanted premises then he is not

estopped to raise his bona fide requirement in future. With the time, requirement also changes. 20. Therefore, in the considered opinion of this court,

appellate Court erred and committed substantial error of law in dismissing the suit of plaintiff on this ground. Substantial question of law is answered

accordingly.

AS REGARDS SUBSTANTIAL QUESTION OF LAW NO. 3:

The plaintiff has specifically pleaded that he requires suit shop for the bona fide requirement of his son for starting the business of retail electrical

items as no other suitable accommodation in the municipal limits of Gwalior exists to start the business. Respondent/defendant has categorically

admitted in para 8 of his deposition that when he took the suit shop on rent, adjacent shop to the suit shop was vacant and after 2-3 months, same was

rented out to Kishan Lal Agrawal. Which means that the shop adjacent to the suit shop was already occupied way back by a tenant and defendant

could not establish the fact that said shop is vacant. He further admitted in para 9 of his deposition that the shop adjacent to suit shop which was

rented out to Kishan Lal Agrawal, after death of Kishan Lal Agrawal, still in possession of his sons and they are running their business there. He

further admitted that only two shops are there in the suit premises. He also admitted the fact that plaintiff is living in the premises situated over the suit

shop.

Defendant could not prove that the first floor of the suit property was used for running a coaching class. Even if it was a coaching class, DW/3-

Mahaveer Prasad Jain, in para 7 admitted the fact that he has no information about the tenants in the plaintiff's house over second floor. He accepted

the fact that two shops are on ground floor and both are inhabited by the tenants. Similarly,he does not know about the status of plaintiff's son.

Same is with the defendant No. 2.

Beside that, defendant himself in para 35 of his deposition stated that he would not like to do his business on second floor. Therefore, even if,it

would have been assumed (although could not be proved by the defendant) that appellant was running a coaching class, even then it would not have

been of much assistance to the defendant because location and situation of the area for any business is a very important consideration in

commercial transactions. No businessman wants to run business in side lanes or in upper floors because it adversely affects the business. Hon'ble

Apex Court in the matter of Uday Shankar Upadhyay & Ors. Vs. Naveen Maheshwari, 2010 (2) MPLJ 243 has categorically held that once it is not

in dispute that landlord is in the bona fide need of the premises, it is not for the Court to say that he should shift to the first floor or any higher floor. It

is also mandated in matter of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 that landlord's subject choice from among more than

one accommodation available to him, should be respected by the Court, once the Court is satisfied after applying objective standard regarding bona

fides of his need for premises or additional premises. Court would not impose its own wisdom as regards such choice. It is also mandated that landlord

cannot be forced to squeeze into less suitable premises just to protect the tenant's occupancy.

There are catena of decisions in this regard but to bring home the point these judgments (supra) are sufficient to substantiate the arguments of

appellant that landlord is best judge of suitability of the premises. Therefore, approach of first appellate Court in holding the residential area of the

plaintiff to be non-residential area and holding the said premises to be suitable alternative accommodation is erroneous. Plaintiff proved his bona fide

requirement and he was entitled to get the suit shop vacated because no other suitable accommodation was available. Defendant could not prove that

the first floor being used by the plaintiff for non-residential purpose and even if the suit premises was used for non-residential purpose even then

ground floor is the best option available for the landlord and that subjective choice cannot be interfered with.

AS REGARDS SUBSTANTIAL QUESTION OF LAW NO. 4:

While reversing the judgment of the trial Court, the first appellate Court may certainly take divergent view but same should be on cogent reasons

and has to be in specific term turning around the findings given by the trial Court. Once the trial Court has given cogent findings based on appropriate

appreciation then it was not incumbent upon the first appellate Court to reverse the findings of fact given by trial Court in a slipshod manner only on

the basis of minor discrepancies, omission or conjunctures, that to suffering from perversity. The bona fide need proved by plaintiff cannot be put to

doubt.

Substantial question of law is answered according.

The judgments referred by the appellant are not applicable in the present fact situation as they move in different factual realm. When the trial

Court and appellate Court on the basis of appreciation of evidence came to the conclusion that suit shop was given to individual and not firm, then

appellant cannot get any advantage from said judgments.

In the considered opinion of this Court, substantial question of Law Nos. 1 to 4, both go in favour of appellant/plaintiff/landlord and suit for eviction

as decreed by Courts below is affirmed.

As regards I.A.No. 3338/11, an application under Order VI Rule 17 CPC, through the said application, respondent No. 1/defendant has tried to

incorporate the pleadings in the written statement as para 4-B; whereby, respondent No. 1/defendant wants to include the fact that during the

pendency of appeal, appellant/plaintiff has given one shop of his ownership to Shri Rajeev Bansal in which he is conducting the business in the name

of M/s. A & A Ceramics. From the conduct of appellant it appears that he is not in bona fide requirement of suit shop and he intends to let the said

shop on enhanced rent.

Appellant filed reply to the said application and denied the contents of application. According to appellant, the shop adjoining to suit shop has not

been let out by the appellant to any person who is running business with the name M/s. A & A Ceramics. In fact the appellant's tenant Girraj

Kumar  with the help of his son is doing business in the name of M/s. A & A Ceramics and prior to it, they were doing the business in the name

of M/s Agarwal Sanitary & Pipe in the said shop, therefore, it is denied vehemently that appellant has let out the shop on rent to Rajeev Bansal. In

actual, as per the submissions, business in the name of M/s. A & A Ceramics is being done by Girraj Kumar and appellant is in bona fide need of the

suit shop for his son to start business of retail Electrical Items.

Considering the submissions of the parties, looking to the preceding analysis whereby, the substantial questions of law have been answered as well

as the fact situation, the amendment does not appear to be the pleading which may affect the fate of the case in any manner, at this stage, the

application deserves dismissal. Once the bona fide need of the appellant is established to start the business for his son then in that condition,

amendment as sought for does not have any substance as landlord is the best judge for the suitability of premises for his business purpose.

So far as I.A.No. 3339/2011, an application under Order XLI Rule 27 CPC is concerned, through the said application, appellant want to bringon

record certain documents in respect of Commercial Tax Department; whereby, the registration of the proprietorship of Girraj Kumar Agrawal of M/s.

Agrawal Sanitary & Pipe has been cancelled and certain photographs and receipts of photographs wanted to be incorporated by the

respondent/defendant, therefore, this application is preferred.

Learned counsel for the appellant opposed the prayer made by the respondents and submits that appellant's tenant Girraj Kumar with the help of

his son is running the shop adjacent to suit shop in the name of M/s. A & A Ceramics. Since the old tenant started business of Ceramics and

therefore, the name has been changed but tenant is old.

Considering the submissions of the parties and looking to the fact situation, it appears that the application deserves dismissal because no new

material facts have been brought on record. The documents which wanted to be brought on record through the instant application, do not affect the

controversy in question in substantial way. As per the discussion made in the preceding paragraphs as well as the fact that application for amendment

under Order VI Rule 17 CPC has already been dismissed, application is accordingly dismissed.

Cumulatively, appeal preferred by the appellant is allowed. Impugned judgment passed by first appellate Court is hereby set aside and that of

trial Court is affirmed.

Appeal allowed.