Bhagwati Brothers vs Lalloolal and Another

A.K. Shrivastava, J.

The unsuccessful defendant/ tenant, against whom the two Courts below have passed the decree of eviction from the suit premises, has assailed the judgment and decree of the two Courts below by filing this second appeal.

Sarman Bai and Lalloolal filed suit against present appellant for ejectment, vacant possession and arrears of rent. Plaintiff No. 1 Sarman Bai after her evidence was recorded died on 2.4.1996. Plaintiff No. 2 Lallolal who is the husband of Sarman Bai, was already on record, however, Smt. Usha Devi daughter of Sarman Bai and Lallolal, as legal representative of Sarman Bai, was later on substituted.

Sarman Bai was the landlady of the defendant. The defendant took the suit premises on montly rent at the rate of Rs. 175/- per month. According to the plaint averments the suit premise which is a shop is required by plaintiff No. 1 Sarman Bai in order to carry on the business of restaurant in which her husband plaintiff No. 2 and servants will help her. The residential portion of plaintiffs is also adjoining to the suit shop and therefore it will be better to manage the business by the landlady. Plaintiff Sarman Bai has no other reasonably suitable non-residential accommodation of her own in the township and her need is bonafide. The suit shop is most suitable to carry on the business because it is facing the main road.

The defendant/ appellant refuted the averments made in the plaint and pleaded that the plaintiffs are not is bonafide need of the suit shop. It has been further pleaded that plaintiffs have other suitable non-residential accommodation where they could start the business. By way of amendment, the defendant added new para 10-A in the written statement and pleaded that the plaintiffs have purchased 600 Sq. ft open land in Hanumanganj and in which they could construct a market on the said land and may start the business. In fact, according to the defendant the market has been established by the plaintiffs. Certain other alternative non- residential accommodation have also been pleaded by defendant in the written statement.

The trial court framed necessary issues and after recording the evidence of the parties decreed the suit. The defendant thereafter preferred first appeal before the learned First Appellate Court which has also been dismissed by the impugned judgment and decree. Hence, this second appeal is filed at the instance of defendant.

This Court on 15.1.2003 admitted the second appeal on following substantial question of law:

Whether on the evidence on record, defendants have established that appellant has an alternate accommodation which was sold by him during the pendency of suit, the court below were justified in decreeing the suit on the ground of bonafide need.

Since there were certain typographical error in the substantial question of law, on 25.4.2006 the substantial question of law was recasted and some more substantial questions of law were framed. They are as under:

Whether on the evidence on record, defendant has established that respondents have an alternative accommodation which was sold by them during the pendency of suit, the court below were justified in decreeing the suit on the ground of bonafide need ?

Whether the facts found by the learned District Judge that respondents had land cum house in Hanumanganj and two other houses at Venkat Ward and Ambedkar Ward and further having found that the appellant suppressed the availability of the aforesaid alternative accommodation or its suitability by not pleading the same as rendered his requirement is spurious and not bonafide ?

Whether under the facts and circumstances of the case findings of the bonafide requirement was perverse ?

Whether looking to the age of the plaintiff, absence of male issues, death of his wife and carrying out of agricultural farming as his main business the finding of the bonafide requirement of opening a hotel was wholly unwarranted, arbitrary and contrary to law ?

Whether suit filed by the landlady for the need of her husband is maintainable U/S 12(1)(f) of the M.P. Accommodation Control Act?

Whether the need of Sarman Bai survives after her death during pendency of suit. ?

Shri M.L. Jaiswal, learned senior counsel assisted by Miss Vandana Shrivastava has submitted that as per the plaint averment the suit shop is owned by deceased plaintiff No. 1 Sarman Bai who was the wife of plaintiff No. 2 Lalloolal and therefore, for the need of the spouse, the suit accommodation which is a non-residential, cannot be decreed. Because, if a suit for eviction is filed u/s 12 (1) (f) of M.P. Accommodation Control Act, 1961 (in short ''the Act''), the same can be filed only for the bonafide need of either landlord or his major sons or unmarried daughters, Since the legislature has not embodied the word "spouse" in clause (f), therefore, for the need of the spouse, the suit filed by landlord u/s 12(1) (b of the Act, cannot be decreed.

It has been further contended by learned senior counsel that the plaintiffs are having other non-residential suitable accommodation to start the business and since these facts have been suppressed by them, therefore, the need cannot be said to be bonafide and for this reason also the suit is liable to be dismissed. In support of his contention learned senior counsel has placed reliance on the decision of Supreme Court Deena Nath Vs. Pooran Lal, apart from two decisions of Single Bench of this Court: Ashok Kumar Vs. Kishan Singh, and Vikas Kumar vs. Radhamal Sindhi, 1998 (1) JLJ 149.

Lastly it has been argued by learned senior counsel that even if it is held that a suit was filed for the bonafide need of landlady Sarman Bai to start the business, since she had died, if there was any bonafide need to start the business, the same has come to an end. In support of his contention, learned senior counsel has placed reliance on the decision of the Supreme Court Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, By placing reliance on Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., it has submitted that the decision of Shantilal Thakordas (supra) has been placed reliance in this judgment.

Per contra, it has been argued by Shri A.K. Jain, learned counsel appearing for the plainfiffs/respondents that Sarman Bai was the landlady, this is not in dispute. It has submitted by him that indeed the need of Sarman Bai is to be seen in the plaint and in that regard my attention has been drawn to para 7 of the plaint in which it has been categorically pleaded that plaintiff No.1 wants to carry on her said business through the help of servants, agents and supervised by her husband, the plaintiff No. 2. If it is pleaded that the business will be supervised by husband of the landlady plaintiff No.1 Sarman Bai, it would not mean that she will not carry on the business and the bonafide need is not for herself. It has been then contended by learned counsel that there is no pleading in the written statement of defendant that Sarman Bai had any other alternative accommodation of her own. Even otherwise, it has been contended by learned counsel that whatever the alternative accommodations have been shown by defendant in his written statement, they have been explained by the plaintiff in the plaint and they are not suitable for the plaintiff to carry on the business.

In replying the arguments of learned senior counsel for appellant that on account of death of landlady Sarman Bai, the bonafide need has come to an end, it has been submitted by Shri Jain, learned counsel for the plaintiffs/respondents that the need would not abate merely on the death of the landlady and the legal representatives of her can continue the suit because bonafide need should be seen on the date of the cause of action and the date when the suit was filed. In support of his contention, learned counsel has placed reliance on two decisions of Supreme Court they are Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR''s., and Shakuntala Bai and others vs. Narayan Das and others, AIR 2004 SCW 3291. It has been then contended by learned counsel that once the Court has come to a conclusion that there is bonafide need of the landlord then in the matter of choosing out of more one accommodation available to the landlord, his subjective choice shall be respected by the Court. To bolster his submission, reliance has been placed by learned counsel on the decision of Supreme Court Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, . By placing reliance on another decision of Supreme Court Dhannalal Vs. Kalawatibai and Others, it has been argued that a shop on the first floor cannot be said to be suitable as one on the ground floor.

Lastly it has been contended by learned counsel for the plaintiffs/ respondents that the learned First Appellate Court has considered all these aspects of the matter by assigning cogent reasons in detail based on appreciation of evidence and, therefore, no substantial question of law is involved in this appeal and the same be dismissed. To buttress his submission two decisions of Supreme Court Madhvan Nair vs. Bhaskar Pillai (Dead) by LRs. (2005) 10 SCC 553 and Alizan Milan vs. Naro Dusadh and others, (2005) 12 SCC 214 are placed reliance.

In order to appreciate the rival contentions of learned counsel for the parties, I would now answer the substantial questions of law in the following paras.

Regarding substantial question of law No. 5:

True the suit for ejectment of non-residential accommodation of which landlady is owner thereof cannot be filed by her for the bonafide need of her husband as it is clear like a noon day on bare perusal of clause (f) of Section 12 (1) of the Act. The suit under this clause can only be filed for the bonafide need of either landlord himself/herself or for the need of his/her major sons or unmarried daughters. But, in the present case on bare perusal of para 7 of the plaint, it is luminously clear that indeed, the need is for plaintiff landlady Sarman Bai herself as in very specific words it has been pleaded that she needs the suit accommodation to carry on her business. It would be condign to quote certain lines of para 7 of the plaint in that regard which reads thus:

That the plaintiff No. 1 (one) wants to carry on her said business through the help of servants, agents and supervised by her husband, the plaintiff No. 2 (two). Since this business would be adjoining to plaintiffs residential accommodation, it will be better managed with less chance of eatable articles being stolen or devoured. She will continue to prepare raw articles with the help of her husband and cooking of the articles and preparation of tea and sale will be from the suit leased accommodation.

If in paragraph 7 it has been pleaded that the husband of plaintiff No. 1 would supervise the business would not mean and this piece of pleading cannot be stretched to the extent that, indeed, the need is for husband and not for the landlady. In the opening lines of para 7 in very specific words it has been specifically pleaded that plaintiff No. 1 wants to carry on her business. Fortunately, before the landlady could breath her last, she was examined as PW-1. In her testimony also, she has stated that she will carry on the business along with her husband.

The substantial question of law No. 5 is thus answered that the suit is filed by the landlady for the need of herself and not for the need of her husband.

Regarding substantial questions of law No. 1,2 and 3:

These substantial questions of law are interlinked to each other, hence they are dealt together.

In the plaint para 6 it has been specifically pleaded by the plaintiff that amongst the tenants the defendant is occupying a portion in the front, adjoining to the main road running from Ghantaghar to Khirehni Phatak on monthly rent of Rs. 175/- for the non-residential purposes. Thus, it is crystal clear that the suit accommodation is on the main road of the town. In the cross examination of the landlady a question was put to her which she answered. The question put to her and the answer which she gave is reproduced as under:

A specific question was put to plaintiff that the suit shop is not located in the loacality where the hotels are situated. In answer to it the landlady specifically and firmly gave reply that the suit shop is on the main road and she wants to carry on the hotel business. Thus, it is proved that the suit accommodation is on the main road. In the pleadings and evidence it has come that plaintiff wants to carry on the business of restaurant in which Samosa, Jalebi and other snacks shall be sold. It is a matter of common knowledge that if such a restaurant is opened on a main road it would give a good business to the owner of the restaurant. The suggestion of the defendant in cross examination of the landlady that there is no restaurant on the main road and the market of the restaurant is elsewhere would not mean that the need is not bonafide. If there is no restaurant on the main road, it would fetch a good business instead of opening a restaurant in a locality where there are already several restaurants.

Admittedly, the owner of the suit shop is landlady deceased plaintiff No. 1 Sarman Bai and all the alleged alternative accommodations which are shown by the defendant are not of the landlady and if that would be the position, since she is not having any other alternative accommodation of her own, even if the husband Lalloolal is having certain alleged other accommodations as shown by the defendant, would not disentitle plaintiff No. 1 Sarman Bai to sue and seek decree of eviction u/s 12 (1) (f) of the Act. Hence, decisions Ashok Kumar (supra) and Vikas Kumar (supra) are not applicable in the present case.

There is evidence and pleading of the plaintiff that the suit accommodation is on the main road and therefore even if the husband of the landlady is having certain other alternative accommodation, it is the choice of the landlord to choose in which she wants to carry on the business and the tenant is nobody to direct plaintiff to carry on the business at the place which is shown by him. On the issue I may profitably rely the decision of Supreme Court R.C. Tamrakar and Another Vs. Nidi Lekha, . In the case of Shiv Sarup Gupta (supra) it has been held by the Supreme Court in para 14 that wherever another residential accommodation is shown to exist as available then the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. The Supreme Court further held that alternative accommodation to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord would be relevant factors. In para 13 of the said decision the Supreme Court held that once the Court is satisfied of the bona fide need of the landlord then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice should respected by the court. The court would permit the landlord to satisfy 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 need.

1 have already held hereinabove, on the basis of pleading and the evidence placed on record the suit shop is on the main road and in that locality there is no restaurant and therefore if the plaintiffs have chosen to carry on the business in that shop, defendant or the Court cannot thrust on plaintiff to carry on or start the business at some other locality.

Apart from what I have held hereinabove, it has come on record that the landlady Sarman Bai died on 2.4.1996 and the suit was filed for the need of the landlady and she was not having any other alternative accommodation. Though after her death, her daughter appellant No. 2 Smt. Usha Devi was brought on record and the husband, plaintiff No. 2 (Lalloolal) was already on record and the other alternative accommodation is of her husband. Laloolal plaintiff No. 2, before the death of her wife plaintiff No. 1 Sarman Bai sold the property of Hanumanganj on 19.9.1990. On this date plaintiff No. 1 Sarman Bai for whose need the eviction suit has been filed, was already alive and therefore if the spouse of landlady i.e. plaintiff No. 2 has sold his property of Hanumanganj earlier to the death of the landlady would not disentitle to plaintiffs to seek decree of eviction.

So far as the plea of defendant in the written statement which he added by way of amendment in para 10-D that plaintiff Lalloolal is having a house in Venkat Ward which according to the defendant is an alternative accommodation, is concerned, plaintiff lalloolal in para 10 of his testimony has stated that he has no property in that Ward. The defendant by examining DW-4 K.N. Pandey who is Revenue Officer of Municipal Corporation, Katni and by exhibiting Ex.D-2 has tried to place on record that Lalloolal is having some property in Venkat Ward, but, the Revenue Officer Shri Pandey (DW-4) has categorically stated in para 4 of his cross examination that the. assessment made of the property mentioned in Ex.D-2 is of residential accommodation. Thus, the entire exercise of defendant showing that in Venkat Ward plaintiff is having other property becomes futile as it is a residential property and the need of plaintiff is for non-residential purpose.

So far as the alternative accommodation of house No. 610 in Ambedkar Ward is concerned, the defendant submitted the property tax assessment register (Ex.D-3) and the Revenue Officer in his testimony has said that plaintiff Laloolal is having property in Ambedkar Ward and the copy of the assessment register is Ex.D-3. However, in his cross examination he has stated that he is unable to state that the assessment is in regard of open land or of any house. Thus, it cannot be said that there is non-residential accommodation in Ambedkar Ward. So far as the property of Hanumanganj is concerned, it was already sold on 19.9.1990 before the death of the landlady Sarma Bai. Even otherwise, it has been proved that the suit accommodation is on the main road and therefore if earlier to the death of landlady this property of Hanumanganj was sold on 19.9.1990 it would not make any difference because the owner of the sold property was not the landlady plaintiff No. 1 Sarman Bai.

Thus, for the reasons stated hereinabove the substantial question of law No. 1 is answered that if the property of Laloolal situated at Hanumanganj was sold on 19.9.1990 i.e. earlier to the death of landlady and therefore it would not prejudice the case of plaintiffs because firstly the landlady was not the owner of that accommodation and secondly that accommodation is not situated on the main road. Substantial questions of law No. 2 and 3 are answered that the property situated in Venkat Ward (Ex.D-2) is a residential property and the need of plaintiff is for non-residential accommodation to carry on the business of restaurant, and therefore the case of plaintiff is not at all prejudiced. The property situated in Ambedkar Ward is non-residential is not proved. In the light of the testimony of the revenue officer, as he says, that he is not in position to state that the tax assessment of the property of Ambedkar Ward is of open land or constructed property. Thus, there is no suppression of alternative accommodation. The findings of the two Courts below are based on appreciation of evidence as well as on the basis of pleadings and they are not perverse. The substantial questions of law No. 2 and 3 are answered accordingly.

Regarding substantial question of law No. 4:

The age of Lalloolal plan tiff No. 2 has been shown as 53 years in his deposition sheet. In the plaint his age has been shown as 50 years (suit was filed on 2.8.1986). The trial court decreed the suit on 24.2.2001. On that day the age of Lalloolal was 65 years. Today his age must be 70 years. In the plaint it has already been pleaded that the snacks items will be cooked by the servants and therefore it cannot be said that Lalloolal cannot run the business of restaurant. He is only required to sell the cooked food stuffs. Even otherwise this question is having nexus with the facts and no question was put either to the plaintiff Sarman Bai or to Lalloolal in that regard during the course of cross examination. On the contrary it has come in the record that in a tenanted shop Lalloolal is carrying on the same business of restaurant. If he can carry on the business in a rented shop why he cannot run the same business in his own suit shop. Apart from this, this point was never raised in the Courts below, therefore, for the first time, it cannot be raised. The substantial question of law No. 4 is thus answered accordingly.

Regarding substantial question of law No. 6:

True Sarma Bai has died during the pendency of the suit. However, it is equally true that plaintiff No. 2 who is the husband of Sarman Bai is already on record and the suit is being continued by him. The complete answer of this substantial question of law can be gathered from the decision of Shakuntala Bai (supra) and Kamleshwar Prasad (supra). In the case of Kamleshwar Prasad (supra) the Supreme Court has held that the landlord needed the premises for starting of business which fact has been found by the Court in the eye of law, it must be held that on the date of the application for eviction which is the crucial date the tenant incurred liability of being evicted from the premises. It was further held by the Supreme Court that even if the landlord has died during the pendency of the lis, bonafide need cannot be said to have lapsed as the business in question cannot carried on by his widow. The same situation emerges in the given case at hand. Thus, merely because Sarman Bai has died it cannot be said that the need to carry on the business does not survive. Normal rule is that rights and obligations of parties are to be determined on the date when a suit is filed. The subsequent events can be taken into consideration to mould the relief, provided such events are such a nature and dimension as to completely eclipse the need and make it lose significance altogether. It is the stark reality that longer is life of litigation more would be number of developments sprouting up during the long interregnum. Hence, the Court has to take a very pragmatic approach of the matter. The bonafide need of the landlord has to be seen on the date of the filing of the suit and the subsequent events intervening due to protracted litigation will not be relevant (See Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Others, . There is another decision of Supreme Court Beg Raj Singh Vs. State of U.P. and Others, on the point wherein the Supreme Court has categorically held that a plaintiff having been found entitled to a right to relief, the court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The Supreme Court further held that the delay in final decision cannot, in any manner, be attributed to the plaintiff.

Thus, the substantial question of law is answered accordingly. Learned senior counsel has also placed reliance on the Single Bench decision of this Court Sonabai and others vs. Arvind Kumar, 1995 JLJ 764. In view of the above two decisions of the Supreme Court Shakuntala Bai (supra) and Kamleshwar Prasad (supra) it is not necessary to place reliance on the said decision. The decision of Shantilal Thakor Das (supra) placed reliance by learned senior counsel for appellant is not applicable in the present case. In that case the landlord was a partner in a firm, he required the premises for occupation for himself and the use of the firm. On his death new partners were introduced and in that situation it was held that the requirement of the newly introduced partners cannot be said to be bonafide. Thus, this decision is not applicable in the present case. This Court fails to understand that why the decision of Raghunath G. Panhale (supra) was placed reliance by learned senior counsel. This decision is against him and in this decision the judgment of the three Courts including the High Court was set aside and the eviction decree was passed. True the decision of Shantilal Thakordas (supra) was taken into consideration. This decision is against the tenant and therefore this decision will not help the appellant from any angle.

In the case of Madhvan Nair (supra) the Supreme Court has held that if the First Appellate Court is neither ignoring any material evidence nor considering any inadmissible evidence in such circumstances, the High Court should decline to interfere in the concurrent finding of facts. The Apex. Court has gone up to the extent by holding that even if an error on the part of the First Appellate Court in recording the finding of fact is there, it would not itself be a ground for High Court to upset the same. Since there is no perversity in the judgment and decree passed by the two Courts below in view of the decision of Alizan Milan (supra) this Court has no jurisdiction to interfere.

Resultantly, the appeal is found to be devoid of any substance and the same is hereby dismissed with costs. Counsel fee according to the schedule if pre-certified.