Mahendra Kumar Jain vs Brjwasi Upadhyaya

S.P. Khare, J

This is a second appeal u/s 100 C.P.C. by the plaintiff. The following substantial questions of law were formulated at the time of admission of this appeal by order dated 3.4.1991 :-

(1) Whether in the facts and circumstances of the case, the first appellate Court erred in law in reversing the finding of the trial Court and rejecting the claim of the plaintiff for eviction of the defendant from the suit accommodation on the ground specified in clause (g) of Sub-sec. (1) of Sec.12 of the M.P. Accommodation Control Act, 1961.

(2) Whether, in the facts and circumstances of the case, the defendant having already released non-residential part of his tenancy situated in the ground floor in favour of the plaintiff, the Courts below erred in law in failing to apply their mind to the claim of the plaintiff for eviction of the defendant from the residential part of his tenancy situated on the first floor on the ground specified in Clause (e) of Sub-sec. (1) of Section 12 of the Act.

(3) Whether, in any case, the defendant having already released non-residential part of his tenancy situated in the ground floor in favour of the plaintiff, the first appellate Court erred in law in directing the plaintiff to hand over possession of the said part to the defendant/tenant.

The facts relevant for the decision of the questions referred above are that defendant Brijwasi Upadhyaya is tenant of plaintiff Mahendra Kumar Jain in a house in Parkota Ward, Sagar at a monthly rent of Rs. 60/-. The suit accommodation consists of two rooms on the first floor and two rooms on the ground floor. It was let out for residential purpose. The plaintiff is also living in this building. He has two rooms on the first floor. His family includes himself, his wife and a son who was aged 12 years when the suit was filed in the year 1985. He must be now 24 years of age. One room on the ground floor which was in tenancy of the defendant is subject matter of dispute. The plaintiff says that the defendant has given back this room to him voluntarily whereas the defendant contends that the plaintiff is occupying it forcibly. It was also pleaded by the plaintiff that the suit accommodation has become unsafe and unfit for human habitation and it is required by him for carrying out repairs which cannot be carried out without its being vacated. He has, however, not shown his willingness to deliver the possession of the accommodation back to the defendant after such repairs.

The trial Court negatived the ground for eviction u/s 12(1)(e) of the Act on the ground that the accommodation in occumpation of the plaintiff is sufficient for his family but decreed the suit u/s 12(1)(f) and (g) of the Act. The first appellate Court has set aside the decree on these two grounds and dismissed the suit. It is strange that the first appellate court has taken into account one room on the ground floor which was subject matter of dispute for determining that the requirement of the plaintiff is met by that room but has directed the plaintiff to deliver possession of that room to the defendant on the finding that the plaintiff has taken its forcible possession.

Notice was issued to the respondent after admission of this appeal. It has been served upon him but he has not appeared.

Question No. 1

So far as the ground for eviction u/s 12(1)(g) of the Act is concerned the finding of the first appellate Court does not suffer from any infirmity. The repairs can be carried out even without the accommodation being vacated. There is no definite evidence that the accommodation has become unsafe or unfit for human habitation. The plaintiff is also not willing to give this accommodation back to the defendant after repairs as required by Section 18 of the Act. Therefore, the ground for eviction under clause (g) to Section 12 (1) is not extablished.

(6) Question No. 2

The ground for eviction u/s 12(1)(e) of the Act is well merited. The trial Court and the first appellate Court could not take the room on the ground floor which was included in the tenancy of the defendant into consideration for holding that the accommodation in the occupation of the plaintiff is sufficient for his family. It is admitted that the plaintiff has two rooms only in his possession and these are on the first floor. The size of one room 7'' x 7'' and the other room is 15'' x 14''. Now the son of the plaintiff is of marriageable age. The Court can take into account the subsequent event also to find out if the need of the plaintiff is of marriageable age. The Court can take into account the subsequent event also to find out if the need of the plaintiff has become more acute Baba Kashinath Bhinge case, 1994 Supp. 3 SCC 698 . Therefore, the two rooms in the possession of the plaintiff are not reasonably suitable for his own residence and for the members of his family. It is admitted that the plaintiff is carrying on his shop on the ground floor. The need of the plaintiff judged by reasonable standard for the suit accommodation is genuine. The room on the ground floor is being used by the plaintiff as store-room for keeping his house-hold goods. That is not unreasonable. It has been pointed by the learned counsel for the appellant that the defendant has built anew house in Brindavan colony in the name of his son and he has shifted there with his family and he is keeping the suit accommodation locked. An application suported by an affidavit of the plaintiff was submitted before the trial Court. A copy of that application was given to the defendant for reply but he did not submit any reply. Therefore, the sworn statement of the plaintiff in the affidavit should be accepted. It is true that the said additional ground has not been set up for eviction of the defendant but the bonafide requirement of the plaintiff for the suit accommodation cannot be said to be in doubt. There can be no splitting up of the demised accommodation in the sense that some portion of it should be given to the plaintiff and some portion should be permitted to be retained by the tenant. It the bonafide requirement even for a part of the demised accommodation is established the eviction has to be from the whole of the suit accommodation.

The Supreme Court has recently observed in S.S. Gupta Vs. M.C. Gupta AIR 1999 S.S. 2507 that once the Court is stisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be 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 such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. Whenever 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 alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate 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 and his family members would be relevant factors. While considering the totality of the circumstances, the Court may keep in view the profession or vacation of the landlord and his family members, their style of living, their habits and the background wherefrom they come.

In view of the principles laid down in the above case the plaintiff has succeeded in establishing the ground for eviction u/s 12(1) (e) of the Act. The judgment and decree of the first appellate Court are set aside and those of the trial Court are restored though on a different ground. The order of the first appellate Court (covered by question no.3) directing the plaintiff to deliver possession of one room on the ground floor to the defendant is also set aside. Costs as incurred.