Gurmukh Singh and Others vs Tekamal and Others

Prakash Shrivastava, J.—This Second Appeal u/S.100 of the CPC is at the instance of the landlord challenging the reversal judgment of the first appellate court dismissing the suit of the appellant.

The trial court by the judgment dated 26/4/1990 had decreed the suit for eviction being CS No. 602-A/89 and the first appellate court by allowing the appeal of the tenant by the judgment dated 21st January, 1993 has reversed the judgment of the trial court and dismissed the suit for eviction.

In brief, the respondent is the tenant in the garage in northern corner in ground floor of the appellants house. The suit property was let out to the respondent at the time of his father and the respondent is using the suit premises for the business purpose. Suit for eviction has been filed by the appellant on the ground that he wants to demolish and re-construct the entire building for which he has necessary fund and the sanction has also been obtained from the municipal corporation and the suit premises is in dilapidated condition, therefore, the eviction is sought u/S.12(1)(h) of the M.P. Accommodation Control Act.

The suit has been opposed by the respondent denying the need for reconstruction and pleading that the suit premises is not in dilapidated condition and the earlier suit for eviction was dismissed and the appellant is seeking eviction to sell the suit premises.

Trial court by the judgment dated 26/4/1990 had decreed the suit on reaching to the conclusion that the suit premises is in dilapidated condition and it is required for reconstruction which cannot be carried out without vacating the suit premises by the respondent. The first appellate court has reversed the judgment of the trial court.

This court by order dated 6/8/1993 had admitted the appeal on following substantial question of law:-

"Whether the lower Appellate Court justified in reversing the decree of ejectment as passed by the trial Court by taking a restricted view of Se. 12(1)(h) of the Act, restricting bonafide requirement of reconstructing the house which is dilapidated in condition ignoring the other pleadings as contained in plaint paras 5,7 and 8 ?

Learned counsel for appellant submits that the first appellate court has committed an error in ignoring the requirement of Sec.12(7) of the Act and has committed further error in taking the restricted view of Section 12(1)(h) of the Act. He further submits that the findings of fact in this regard have incorrectly been set aside by the first appellate court.

Inspite of service of notice, no one is present for respondent to oppose the appeal. Since it is an old matter, therefore, it cannot be kept pending indefinitely.

The appellant has sought eviction u/S.12(1)(h) of the Act which reads as under:-

"12(1)(h)-- that the accommodation is required bonafide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or re- building or alterations cannot be carried out without the accommodation being vacated;"

Sub-section (7) of Section 12 of the Act contains the conditions which are required to be satisfied for passing a decree of eviction u/S.12(1)(h) of the Act. Sub-section (7) reads as under:-

"No order for the eviction of a tenant shall be made on the ground specified in clause (h) of sub-Section (1), unless the Court is satisfied that the proposed reconstruction will not radically alter the purpose for which the accommodation was let or that radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord".

The supreme court in the matter of Shyamlal Agarwal Vs. Ratanlal Malviya (dead) by Lrs., AIR 1991 SC 353 : (1991) 2 SCC 449 Supp has taken the view that for making out a ground u/S.12(1)(h), it is not necessary that the accommodation for the purposes of reconstruction must be in a dilapidated condition. The supreme court in the matter of Metalware and Co. etc. Vs. Bansilal Sarma and Co. etc., AIR 1979 SC 1559 : (1979) 3 SCC 398 : (1979) 3 SCR 1107 while considering the similar provision contained in the Tamil Nadu Act has taken the view that all the relevant surrounding circumstances are required to be taken into account while examining the bona-fide need for reconstruction and the age, condition of building is one such relevant circumstance.

In the present case, the trial court after elaborately dealing with the evidence had reached to the conclusion that the suit house is in dilapidated condition, the appellant has sufficient funds available for reconstruction, the appellant has proved the claim for reconstruction and reconstruction cannot be carried out without vacating the suit premises by the respondent. The respondents plea that the eviction has been sought to resale the property was disbelieved by the trial court.

The first appellate court has reversed the judgment of the trial court mainly and substantially on the ground that the building is not in a dilapidated condition. The first appellate court has noted that the appellant has produced sanction map from the municipal corporation and has further found that the proposed construction does not materially alter the tenanted premises. The first appellate court has further affirmed the finding of the trial court that sufficient funds are available with the appellant for reconstruction and the appellant is financially capable to do construction, yet, the first appellate court has held that the need is not bona-fide. The first appellate court has also failed to consider that case pleaded by the appellant in paragraph 5,7 and 8 of the plaint has duly been proved which entitles him for a decree of eviction u/S.12(1)(h) of the Act. The first appellate court has disbelieved the bona-fide need noting that the building is not in a dilapidated condition and that there is nothing to show that new construction will increase the utility of the building or income of the appellant landlord. While passing the impugned judgment, the first appellate court has failed to appreciate that the requirement of sub- section 7 of Section 12 are fully satisfied in the matter. The finding of the trial court that reconstruction cannot be carried out without the accommodation being vacated is still intact. The first appellate court taking restrictive view of Sec.12(1)(h) of the Act has reversed the judgment of the trial court mainly and substantially on the ground that the accommodation is not in a dilapidated condition without appreciating the other circumstances of the case which were required to be taken into account in view of the aforesaid judgments of the supreme court.

So far as the finding relating to the dilapidated condition of suit house is concerned, the trial court placing reliance upon the plaintiffs witnesses has recorded the finding in favour of the landlord whereas the first appellate court placing reliance upon the defendants witnesses has recorded the finding in favour of the tenant, but the first appellate court in this regard has failed to appreciate that the trial court was in a better position to adjudge the credibility of the witnesses before whom their statements were recorded.

In these circumstances, the question of law is answered in favour of the appellant and the appeal is allowed by setting aside the judgment of first appellate court and restoring the judgment and decree of the trial court.

No costs.