Mansharam vs Bhagwandas

R.C. Lahoti, J.

A suit based on landlord and tenant relationship filed by the Plaintiff/ Appellant, seeking ejectment of the Defendant/Respondent from the suit shop alleging genuine requirement of the Plaintiff for starting the business of his major son, was decreed by the trial Court, but dismissed by the lower appellate Court. The Plaintiff has come up in second appeal.

A perusal of the judgment and decree of the trial Court shows that the trial Court found that Madanlal (P. W. 4), major son of the Plaintiff (P. W. 1), was sitting idle having secured post-graduate degree and was inclined to start his own business dealing in iron goods and genuinely needed the suit premises for the purpose. The suit shop was purchased by the Plaintiff under the registered deed dated 7-10-71 (Ex. P/1) and was exclusively owned by him. The Plaintiff or his son Madanlal did not have any other alternative accommodation available to satisfy his need.

The lower appellate Court reversed the finding by entering into an academic study of the concepts of desire vis-a-vis need, questioning why the Plaintiff chose to sit idle and not to get involved in any one of several business activities of the family, holding that the joint family business run by the other members of the family in the name of M/s. Mansharam and Sons was as much as a business of Plaintiff as that of the joint family and hence he could not seek ejectment unless and untill the Plaintiff could make out a case of expansion of joint family business. Without citing, it appears, that the lower appellate Court had in its mind a Single Bench decision in Bhagwaniyabai v. Krishna Sewak 1964 MPLJ SN 12.

Vide order dated 28-4-86, this Court admitted the appeal for hearing parties of the following substantial question of law:

Whether there is any legal impediment in starting new business, while there is already H. U. F. firm is existing ?

In Kewal Singh Vs. Smt. Lajwanti, their Lordships of the Apex Court referring to the concept of bona fide personal need of the landlord in rent control legislation impressed upon the Courts of necessity of meaningfully construing the concept so as to make the relief granted to the Plaintiff real and practical, it being a limited relief available to the landlords amidst a number of facilities to the tenants. In Ganpat Ram Sharma and Others Vs. Gayatri Devi, their Lordships observed that the rent control legislation was benefiicialy, not to tenants alone, but also to landlords.

Section 12(1)(f) of M P. Accommodation Control Act, 1961, uses the phrase "required bona flde". Analogous term ''genuine'' qualifying ''the requirement'' used by the legislature in pari materia provisions of predecessor Act of 1955 came up for interpretation before a Full Bench of this Court in Damodardas v. Nandram 1960 JLJ 473. F. B. Pandey J. expressing the majority view said :

The word ''genuine'' means that which proceeds from its reputed source, sincere and not false, fictitious, simulated or spurious.

The son of the Plaintiff has come of age. He is educationally qualified, physically fit and financially equipped to commence his own business of dealing in iron goods, a business which does not require any experience or expertise to deal in. He belongs to the business class family. There is absolutely nothing to disbeliave his statement supported and corroborated by the statements of his father and other witnesses that he did intend to open an iron goods shop.

The joint family of which the Plaintiff is undoubtedly a member might be owing a few shops and engaged in business activity therein. What cannot be denied is that none of these shops were lying vacant and the Plaintiff too was not already engaged in any business activity on the date of the institution of the suit. Whether the existence of joint Family business activity in which the Plaintiff and his son would be deemed to have an interest necessarily. (Whether actively engaged or not therein) would be enough to deny a member of the family his right to start a business of his own choice, run managed and controlled by himself, in an accommodation exclusively owned by him, is the question calling for an answer in the case.

In Hemraj Nema v. Raj Narayan and Ors. 1980 MPRCJ 65, is a direct authority for the proposition that there was nothing in law to refrein or restrain a member of joint Hindu family intending to start his own separate business and such a need for starting a fresh and independent business could be adjudged a bona fide requirement. So is the view taken in Gyanchand and Ors. v. Balkishan and Ors. 1981 JLJ 477.

In Gyanchand''s case (supra) reliance was placed on an earlier decision of this Court in Babulal v. Keshrichand 1962 JLJ SN 177, wherein it was held:

But granting for a moment that there was no partition between the brothers and the Plaintiff and his two brothers have three concerns which are their joint properties, the question is whether the Plaintiff is not entitled to start a new business which belongs exclusively to himself. There is no law which debets one member of a joint family or one partner of a firm from starting a new business. It is nobody''s case that the Plaintiff has any ether nonresidential accommodation for starting a separate business. It is also nobody''s case that the suit premises purchased by Babulal does not belong to him exclusively. The Plaintiff is, therefore; clearly entitled to a decree for ejectment u/s 4(h) of the Accommodation Control Act.

In Bhagwaniyabai v. Krishna Sewak 1964 MPLJ SN 12, does not set out full facts. As observed vide para 8 of Hemraj''s case (supra), it appears that Bhagwaniyabai''s case was one where a member of the joint Hindu Family of Plaintiffs already engaged in a joint family business wanted to open another shop of the same goods as were being already dealt in by the joint Hindu family shop and in that background the learned Single Judge of this Court took the view that unless and until the Plaintiffs were in a position to show that their business had expanded and there was a felt need for additional aecommodation for the purpose of continuing the expanded business, ejactment could not be sought.

In Bhagwaniyabai''s case (supra) cannot be deemed to be an authority for a tall proposition, as appears to have been propounded by the learned lower appellate Court, that once a joint Hindu family is engaged in any business activity in a shop owned by joint Hindu family, no member thereof can ever be permitted to start his own independant business in premises owned by him. Neither it is so said in Bhagwaniyabai''s case, nor is there any warrant in law for upholding such a proposition.

For the foregoing reasons, it is held that the lower appellate Court proceeded on a misconception of law and tried to build up such a hypothesis, as is unsustainable in law and hence its finding cannot be sustained. In S.B. Noronah Vs. Prem Kumari Khanna, their Lordships observed: "common sense should not be kept in cold storage" and "law should not be stultified by Courts by sanctifying little omissions as fatal flaws". If only the proposition

propounded by the learned lower appellate Court was to be accepted, we shall have to do away with the necessity of placing a meaningful construction on the need of the landlord, emphasised by their Lordships in Kewal Singh''s case (supra).

Inasmuch as the reasoning adopted and the findings recorded by the lower appellate Court are wholly unsustainable in law, they do not bind this Court in second appeal. In supersession thereof it is held that the case pleaded and made out by the Plaintiff squarely falls within the ken of Section 12(1)(f) of the M P. Accommodation Control Act, 1961. The lower appellate Court should not have reversed the well considered and legally sound findings of fact recorded by the trial Court.

In the result, the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and that of the trial Court are restored with costs throughout. Counsel''s fees as per Schedule; if certified.

However, to relieve the Defendant/Respondent from the trial of sudden ejectment, it is directed that the course for ejectment shall not be available for execution until 31-12-91, subject to the following conditions:

(i) that within one month from today, the Respondent satisfied the entire money part of the declee by making deposit with the executing Court;

(ii) that w. e. f. 1-9-91 until ejectment, the Respondent pays to the landlord or deposits with executing Court, the rent falling due month by month by the 15th of that month;

(iii) the Respondent filed within one month an undertaking on affidavit with the executing Court to the effect that soon after 31-12-91, the Respondent shall handover vacant and peaceful possession of the suit shop to the Plaintiff/Appellant and shall not induct anyone else in the suit premises.

Failing anyone of the aforesaid conditions, the Plaintiff/Appellant shall be at liberty to execute the decree fortwith.