M/s. Shankar Glass and Frame Stores vs M/s. Shah Mill Stores

Nawal Kishore Agarwal, J.—This is defendant''s Second Appeal filed u/s 100 of the Code of Civil Procedure, 1908 (for short "the CPC") against the judgment and decree dated 12-11-1997 passed by the 5th Additional District Judge, Raipur, in Civil Appeal No. 34-A/96 affirming the judgment and decree dated 29-3-1996 passed by the 2nd Civil Judge, Class II, Raipur, in Civil Suit No. 115-A/94. Facts in brief necessary for disposal of this appeal are that:--plaintiff/registered partnership firm, instituted a suit against the appellant/tenant/defendant for ejectment and arrears of rent, inter alia on the ground, plaintiff requires bona fide the suit godowns for keeping its own goods.

The plaintiff''s claim was denied by the appellant. As per the appellant, suit has been filed with an oblique motive to enhance the rent, inasmuch as, the plaintiff is in occupation of alternative suitable accommodation.

The Trial Court, based on evidence led by the parties, decreed the suit.

First appeal preferred there against by the appellant was also dismissed. Hence this second appeal.

This Court vide order dated 4-5-1998 admitted the appeal for hearing on the following substantial questions of law:--

(i) Whether in view of the admission of the respondent in Paragraph 8 of his cross-examination that he had obtained vacant possession of one godown during the pendency of the suit, the finding recorded by the Lower Appellate Court that the respondent had no alternative accommodation in his possession suitable for his godown, is perverse in the eyes of law?

(ii) Whether in absence of any evidence on record that the godown handed over to the respondent by his previous tenant, was handed over in dilapidated condition, the finding of the Lower Appellate Court that the alternative accommodation is not suitable, can be sustained in the eyes of law?

As per Section 12(1)(f) of the M.P./C.G. Accommodation Control Act, 1961 (for short, "the Act, 1961"), a suit can be filed for eviction of a tenant with regard to accommodation let for non-residential purposes on the ground of bonafide requirement of the landlord for the purpose of continuing or starting his business, if he is owner thereof and the landlord has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.

Whether or not the requirement of the landlord is bonafide is essentially a question of fact. Both the Courts below have recorded concurrent finding of fact that the plaintiff required the suit premises bonafide. The said finding is binding on this. Court, inasmuch as, neither the evidence in this regard can be re-appreciated nor the concurrent finding of fact can be disturbed in exercise of powers u/s 100 of the CPC, however, in view of the questions of law formulated by this Court, I shall briefly examine as to whether the ingredients of clause (f) of sub-section (1) of Section 12 of the M.P./C.G. Accommodation Control Act, 1961 (for short "the Act") have been proved by the plaintiff/respondent or not.

In cross-examination Para 8, Manhar Shah (P.W. 1), one of the partners of the plaintiff-firm, has stated that apart from the suit premises, the plaintiff-firm is also owner of two other godowns, one of which, has been recently vacated by the tenant in dilapidated condition and another godown is in possession of tenant. He has further deposed in Paras 9 and 10 of his statement that the firm is owner of three residential houses and have hired one godown to fulfill their requirement. Hiring of one godown by the plaintiff-firm is also admitted by defendant''s witness Jageshwar Singh (D.W. 2). The defendant could not controvert the fact that the godown, on which, possession has been obtained from tenant by the plaintiff is not in usable condition.

Neither accommodation in possession of plaintiff used for residential purpose can be said to be reasonably suitable accommodation for business purpose nor a premises not fit for use can be termed as reasonably suitable alternative accommodation within the meaning of Section 12(1)(f) of the Act and I do not find any infirmity in the concurrent finding recorded by both the Courts below.

Substantial questions of law are thus answered in favour of the respondent/plaintiff/landlord and against the appellant/defendant/tenant.

For the reasons mentioned herein above, the appeal being devoid of merit, is liable to be and is hereby dismissed. A decree be drawn accordingly.