Punamchand vs Ramlal

V.R. Newaskar, J.—This second appeal arises out of a plaintiff''s suit for ejectment and arrears of rent.

Plaintiffs sued the the defendant to recover possession of the premises let out to him. The premises consisted of an Otla and an Osari near a stair-case which they had let out to the defendant on Rs. 11/- P. M. for a Pan shop. A rent-note was executed by the defendant for these premises. The plaintiffs by the present suit sought ejectment of the defendant on the ground that they needed the premises for the use of themselves and the members of their family for the purpose of residence The plaintiffs alleged termination of tenancy by notice to quit. They also claimed arrears and mesne profits The defendant resisted the suit.

While the suit was being tried the landlord submitted an application on 24-9-1957 u/s 5 of the Accommodation Control Act. This application was allowed on 8-8-1958 and the tenant was directed to deposit rent as indicated in the order. The tenant failed to deposit the rent and submitted an application on 25-8-1958 praying that he should be relieved of this obligation to make deposit and in the alternative asked for time. His first prayer was rejected but he was allowed time upto 1019-1958. There was further extention upto 24-9-1958. In spite of this the defendant defaulted and consequently the Court passed an order u/s 5 (2) of the Act terminating the defendant''s right to defend the suit. The Court thereafter recorded plaintiff''s evidence and ultimately passed a decree or ejectment after refusing to re-open the defence. The decree was taken up in appeal and the appellate Court confirmed that decision. This is a second appeal against that decision.

Mr. Ojha for the appellant raised two points in the memorandum of appeal, Firstly it was contended that the provisions of Section 5 (2) of the Accommodation Control Act are ultra vires the Constitution as they offend Article 19(1) (f) of the Constitution. Secondly it was contended that on the plaintiffs'' own case the property in question was let for non-residential purpose. The plaintiff sought ejectment for residential purpose. This the law does not permit and on that ground alone the suit for ejectment ought to fail.

As regards the first contention the matter has been considered by me in Civil Second Appeal No. 71 of 1959 reported in 1961 JLJ 744 Nagardas vs. Deobai. It was held that the provisions of Section 5 (2) of the M. P. Accommodation Control Act are not void on the ground that they run counter to Article 19 (1) (f) of the Constitution. It is unnecessary to repeat the reasons set out in that case, I stick to that view.

As regards second question the learned counsel relied upon the decision reported in Phundilal and another Vs. Ashok Kumar, Second Appeal No. 148 of 1956 Bhavarlal vs. Phulchand of this Court decided on 15-1-1959.

The contention of Mr. Ojha need not to be examined in detail in this case for the simple reason, that the defendant''s defence had been terminated, and therefore it is not open for him, to raise a question which may involve a question of fact. The contention of Mr. Ojha is that the suit for ejectment is incompetent because the plaintiff wants ejectment from non-residential accommodation for a residential purpose. There is an assumption in this contention of Mr. Ojha which is not fully justified. The accommodation is an Osari and an Otla in a residential house and whether such an accommodation should be treated as residential or non-residential would on ultimate analysis be a question of fact. I have considered this matter in a case reported in 1959 JLJ 127. Dr. Mohanand vs. V. R. Ayyar. In that case, after quoting the provisions of Section 4 (g) and (h) of the Accommodation Control Act, it was observed:-

It appears to me fairly clear from the provision, that the Act intends to divide the accommodation into two categories residential and non-residential and secures to the landlord the accommodation by ejecting the tenant if the landlord''s need be of the same category to which particular accommodation can be found by the Court to belong. If the accommodation in question is residential the landlord can secure the ejectment of a tenant occupying the same if he genuinely heeds the same for the purpose of residence and there is no place in the city or town so as to satisfy his need. If on the other hand the accommodation is non-residential then he can secure the ejectment of a tenant therefrom incase his genuine need be for a non-residential purpose and there is no other place in the city or town satisfying that need of his. The Legislature thus having made two categories and allowed to the landlord an accommodation of a particular category if his need, was for accommodation falling within that category it will not be open for a landlord to claim ejectment of a tenant from an accommodation falling. within the category for a purpose falling within the another category. It is no doubt true that difficulties may arise while considering the question in which particular category given premises fall The learned District, Judge applied the test depending upon the nature of the actual use which the tenant at the time of the action is making of the premise. If he is usuing the premises for residence then they are residential. It he is using them for non-residential purpose then they are non-residential. To my mind a more objective test ought to exist for determining whether the particular accommodation is residential or non-residential and should not be made to depend upon the will and need of the tenant. In the final analysis whether a particular accommodation falls in one or the other of the categories is a question of fact depending upon various factors including the constructional features; the situation amenities available, conveniences provided, the number of rooms, the actual use to which the same is Being put and several other factors. The Court which, is required to consider the question in which category a particular accommodation may fall should determine the question on those considerations and then decide whether the plaintiff''s need is to have the accommodation of the category thus determined.

The decision of Dixit J., (as he then was) in Civil Second Appeal No. 148 of 1956 referred to above, does not appear to take a different view. The learned Judge specifically referred to the decision in the above case namely Dr. Mohanand Vs. V. R. Ayyar (1959 JLJ 127), and held that much assistance can be derived from the said decision. The decision in Phundilal and another Vs. Ashok Kumar, probably follows the decision of Dixit J., referred above.

It is clear from these decisions that whether an accommodation is residential or non-residential is a question of fact, There fore in the present case it is not open for the defendant to raise this question in second appeal since by permitting to do so he will be permitted to raise a disputed or disputable question of fact. Had the point been raised it could have been examined on evidence. But since the defence had been terminated the matter ought to rest there.

Even apart from this, having regard to the nature of the accommodation and the house of which the accommodation forms part as also the use to which the house is put it does not appear that there is much force in Mr. Ojha''s contention that the plaintiff is seeking non-residential accommodation for residential purpose.

The appeal therefore is without force and is dismissed with costs.