Kishan Shukla vs Debnath

Sanjay K. Agrawal, J.�This is plaintiff''s Second Appeal under Section 100 of the Code of Civil Procedure (for short ''the CPC) against the judgment and decree dated 30.01.2001 passed by Additional District Judge, Mungeli in Civil Appeal No. 18-A/98, affirming the judgment and decree dated 15.09.1998 passed by Civil Judge, Class I, Mungeli in Civil Suit No. 68-A/97, dismissing the suit.

[For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court]

The necessary facts required for determination of this appeal are as under:--

(2.1) Plaintiff - Kishan Shukla commenced an action for eviction of the suit house under Sections 12(1)(a)(e) of the CG Accommodation Control Act, 1961 (for short ''the Act'') alleging non-payment of arrears of rent which is the ground under Section 12(1)(a) of the Act stating that the suit house is required bonafidely under Section 12(1)(e) of the Act. It was further pleaded by the plaintiff that the suit house is recorded in the name of his father late Shri Brijlal Shukla, which has been let out to defendant Debnath on June, 1994 at the monthly rent of Rs. 00/- and legal notice has been served to the plaintiff for vacating the suit house and for payment of the arrears of rent and when the defendant did not vacate the suit house as noticed, the instant suit came to be filed on 25.3.1996.

(2.2) The defendant filed his written statement taking a principal defence that the suit accommodation is not owned by plaintiff, it was originally owned by one Gokul Prasad and after the death of Gokul Prasad, his widow Lopa Bai was the owner of the said suit accommodation and from her the defendant has taken the suit accommodation on rent. Lopa Bai died issueless on 9.6.1994 and she has executed a registered will dated 31.3.1984 in favour of one Vishnu Prasad Shukla and the suit accommodation has been vacated and possession has been handed over to Vishnu Prasad Shukla on 30.7.1996.

The trial Court, by its judgment & decree, dismissed the suit holding that plaintiff has failed to prove his ownership in the suit property.

The plaintiff preferred first appeal thereagainst. The first appellate court, after re-appreciating the entire evidence adduced in the case, affirmed the judgment and decree passed by the trial court, leading to filing of this Second Appeal under Section 100 of the Code of Civil Procedure.

Mr. Avinash Singh, learned counsel appearing for the appellant would submit that concurrent finding recorded by both the courts below holding that the plaintiff not to be the owner thereof is perverse and that give rise a substantial question of law for determination in this appeal.

I have heard learned counsel appearing for the appellant and perused the records of both the courts below.

A close perusal of the plaint, it would appear that plaintiff has pleaded that his father is the owner of the suit accommodation, he did not plead that plaintiff (Kishan Shukla) is the owner of the suit accommodation. The suit has allegedly been filed claiming eviction on the ground of under Section 12(1)(e) of the Act, which provides that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned.

Admittedly, it is not the case of the plaintiff that he is owner thereof, which is sine qua none for getting eviction under Section 12(1)(e) of the Act, 1961 and, thus, the plaintiff has miserably failed not only to establish owner thereof but failed to aver the he is the owner thereof, and thus the first contention raised by Mr. Mishra is sans substance.

So far as next contention raised by Mr. Mishra with regard to arrears of rent enumerated under Section 12(1)(a) of the Act, 1961.

It is necessary to extract the statutory provision from Section 12 of the Act, which is relevant for the purpose of the present appeal.

"12. Restriction on eviction of tenants--(1) Notwithstanding anything to the contrary in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely:

(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner.

xxx xxx xxx

In the present case, the cause of action is founded on the ground of clause (a) of Section 12(1). For seeking a decree under this clause, it is necessary for the landlord to prove the three ingredients of the grounds, namely (i) the tenant is in arrears of rent; (ii) a valid notice of demand was served on him; and (iii) the tenant failed to tender or pay the amount of arrears of rent within two months of the date of service of such a notice. If any of the ingredients is missing, a landlord does not get a cause of action for eviction, on the ground specified in clause (a).

The High Court of Madhya Pradesh in case of Lachoo Ram Vs. Bipin Kumar, has held as under:--

"10. .............But for seeking a decree for eviction on the ground of clause (a) of Section 12(1) of the Act, a landlord, in subsequent suit claiming eviction on the ground of default in payment as contemplated by clause (a) of sub-section (1) of Section 12 of the Act, and for that purpose, it is essential to disclose that despite service of notice of demand for arrears of rent due, the tenant failed to pay or tender the amount of arrears of rent within two months from the date of service of such notice."

A bare perusal of the plaint would show that plaintiff has issued demand-quit notice on 1.2.1996 and the suit came to be filed on 25.3.1996, thus, statutory period of two months a provided under Section 12(1) of the Act was not complete when the suit came to be filed on 25.3.1996.

Thus, the ground raised under Section 12(1)(a) and (e) has neither been pleaded nor the same has been established and, therefore, both the courts below were absolutely justified in dismissing the plaintiff''s suit and I do not find it either perverse or contrary to record and no question of law much less substantial question of law is involved in this appeal.

Recently, the Supreme Court in the case of Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, has held that High Court should not disturb the concurrent finding of fact, unless finding recorded are perverse being based on no evidence. Para-36, 37 of report as under:--

"36. In Major Singh Vs. Rattan Singh (Dead) by LRs. and others, it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.

In Vidhyadhar Vs. Manikrao and Another, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decisions of this Court in Abdul Raheem Vs. The Karnataka Electricity Board and Others, ."

Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the courts below is based on evidence, no substantial question of law is involved in this appeal, thus appeal deserves to and accordingly dismissed at admission stage itself. No order as to costs.