Ram Rathi And Ors vs Sunita Devi Somani And Ors

Ram Prasanna Sharma, J

This first appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against judgment/ decree dated 17.02.2005 passed by District

Judge, Rajnangdaon (C.G.) in Civil Suit No. 24-A/2003, wherein the said court decreed the suit filed by respondent No. 1 to 5/ plaintiffs against the

original defendant Radhakishan Rathi (Present appellants are legal representatives of said Radhakishan Rathi) for eviction of suit premise situated at

Bharkapara, Ramadhin Marg, Rajnandgaon (C.G.) which is a cinema theatre named and styled as Kamal Chhaya Mandir and open land in south of

the said premise.

As per the appellants, the original suit has been filed against the original defendant namely Radhakishan Rathi who died after passing of

judgment/decree on 28.02.2005. It is pleaded that the premise in question is owned by respondent No. 1 to 3/ plaintiffs who are legal heirs of Late

Smt. Kamla Devi, W/o Late Radheshyam. The premise was given on rent by Smt. Kamla Devi along with open space on south side. The rent of suit

property was Rs. 1500/- per month and map of the premise is Appendix-A attached with the plaint. Father of respondent No. 1 to 3 namely

Radheshyam expired in the year 1995 and Smt. Kamla Devi died on 18.12.1999. Respondent No. 1 to 3 are daughters of Radheshyam and Smt.

Kamla Devi and during her lifetime, Smt. Kamla Devi executed a will on 16.01.1989 giving the property in question to respondent No. 1 to 3. After

death of Smt. Kamla Devi, the information was given to the original defendant, but the rent was not paid. Respondent No. 5-Chandra Kant Chitlangya

is having general power of attorney holder from respondent No. 1 to 3. Earlier the rent was paid to Smt. Kamla Devi and after death of Smt. Kamla

Devi, a request was made to the deceased defendant to pay them rent, but the rent is not paid and an application was submitted by the original

defendant to the Rent Control Authority for depositing the rent from November, 1999. The rent was not paid even after issuance of notice.

It is further case of respondent No. 1 to 3 that the suit property has also been subletted and an hotel, a betal shop and a saloon given on rent by the

original defendant. The other ground for eviction is that the suit property is bonafidely required to respondent No. 1 to 3 for running a theatre and they

have no alternative suitable accommodation at Rajnandgaon to run the theatre. The other ground is that since last 45 years, the property is not

maintained properly, therefore, the same requires extensive repair and it is in dilapidated condition and without vacating the property, the repair is not

possible. As per written statement filed in the present case, the other side has opposed all the pleadings and after recording of evidence and hearing

the parties, the trial court passed the decree as mentioned above.

Learned counsel for the appellants submits as under:-

(i) The trial court has erred in law in holding that the rent has not been paid since 1999. On 18.03.2004, the court has condoned the delay in paying

rent and sometime, the rent is paid in advance, therefore, the finding arrived at by the trial court is not sustainable.

(ii) The trial court erred in law in decreeing the suit on the ground of subletting. The court has completely ignored Clause 5A & 5B of the rent

agreement. These clauses provide that till some arrangement is being made for hotel, betal shop and saloon, the tenant was given liberty. It is not

proved by evidence that any shop is subletted by the tenant.

(iv) The trial court has further erred in law in decreeing the suit on the ground of bonafide requirement. As per document Ex. P2 to P/4, the power of

attorney has been given the power to sell and dispose off the property, therefore, it cannot be held that the premise is required bonafidely for running

threatre.

(v) Respondents No. 1 to 3 have not entered into witness box, therefore, bonafide requirement is not established.

(vi) The power of attorney holder cannot depose in place of principle in respect of the matter of which only principal can have personal knowledge in

respect of which principal is liable to be cross-examined, therefore, statement of power of attorney holder is not sufficient to establish bonafide

requirement.

(vii) From evidence, it is not established that the property in question is in dilapidated condition, therefore, the trial court is not right in holding that such

ground is available to the landlord. Finding arrived at by the trial court is liable to be set aside.

Learned counsel for the appellants placed reliance in the matter of Bashir Vs. Smt. Hussain Bano, reported in 2005 (2) M.P.L.J. 230.

On the other hand, learned counsel for the respondents submits that the finding arrived at by the trial court is based on proper marshaling of

evidence and the same is not liable to be interfered while invoking jurisdiction of the appeal. He placed reliance in the matter of Janki Vashdeo

Bhojwani and another Vs. Indusind Bank Ltd. and others, reported in (2005) 2 SCC 217 & Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha,

reported in (2010) 10 SCC 512.

I have heard learned counsel for the parties and perused the record in which judgment and decree has been passed.

First question for consideration before this Court is whether the ground under Section 12(1)(a) of the Chhattisgarh Accommodation Control Act,

1961 (for short ""the Act, 1961"") is available to respondent No. 1 to 3. From evidence of Chandra Kant Chitlangya (PW-3) who is son of Late Kamla

Devi and Radhesham and brother of respondent No. 1 to 3, it is established that the appellants have not paid rent from November, 1999 (Para 9), a

notice was served to them as per Ex. P/7 dated 31.10.2001 which was received by them on 02.11.2001 as per acknowledgment Ex. P/9. The rent

was not paid within two months from date of service of notice and it was deposited on 11.03.2002 after filing the suit. The suit was filed on

28.01.2002.

As per version of this witness, the rent was deposited after two years of filing of the suit (Para 32). From evidence of both side, it is clear that the

rent was not deposited within two months of service of notice. Section 12(1)(a) of the Act, 1961 reads as under:-

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.

As the tenant has not paid arrears of rent legally recoverable from him within two months of the date on which notice of demand for the arrears of

rent has been served, ground under Section 12(1)(a) of the Act, 1961 is available to respondent No. 1 to 3. It is contended on behalf of the appellants

that the delay in paying the rent is condoned by the trial court vide order dated 18.04.2004, therefore, the ground on the basis of arrears of rent is not

available to respondent No. 1 to

In view of this Court, allowing depositing of arrears of rent by interlocutory order has no bearing with the merits of the case. Depositing of rent

belatedly just to save the appellants/ tenant from striking their defence under Section 13 of the Act, 1961 is interlocutory matter to allow the tenant to

defend his case, but it has no bearing with Section 12(1)(a) of the Act, 1961, therefore, the argument advanced on this count is not sustainable.

Second question for consideration before this Court is whether the ground under Section 12(1)(b) is available to respondent No. 1 to 3. Section

12(1)(b) of the Act, 1961 reads as under:-

that the tenant has, whether before or after the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of

the whole or any part of the accommodation for consideration or otherwise.

As per evidence of respondent No. 1 to 3/ landlord side, the appellant has subletted the premise to one Shekhar Sahu for canteen, one Shiv Kumar

for opening betal shop and one Nandu for opening saloon/ barber shop. Sitaram Soni who is witness of appellant side, gave one written notice to

engineer of Chhattisgarh Electricity Department as per Ex. P/14 that electric supply should not be disconnected in the said betal shop, hotel and

saloon. Original tenant Radhakishan Rathi admitted before the trial court that the officers of electricity department inspected the premise for illegal

connection to canteen, saloon and betal shop. The electric was supplied from the premise in question (Kamal Chhaya Mandir) (Theatre) and no

explanation was given on behalf of the tenant side, therefore, the trial court recorded finding that these three persons have been subletted by the

tenant and this Court has no reason to record contrary finding.

Learned counsel for the appellants submits that Chandra Kant Chitlangya is power of attorney holder, is not competent to give evidence on behalf

of respondent No. 1 to 3. In view of this Court, Chandra Kant Chitlangya who is brother of respondent No. 1 to 3 and is son of Smt. Kamla Devi and

Radheshyam who is original owner of the property. This witness is family member of landlord and had full of knowledge about the premise in question

and tenancy in question. The position would have been different if power of attorney would have been stranger, therefore, argument advanced on this

count is also not sustainable. As the subletting was without consent of the landlord, therefore, Clause 5A & 5B mentioned in the rent note will not help

the appellants. Accordingly, the ground under Section 12 (1)(b) of the Act, 1961 is also available to respondent No. 1 to 3.

Third question for consideration before this Court is whether the ground under Section 12(1)(c) is available to respondents No. 1 to 3. As per

evidence of Chandra Kant Chitlangya (PW-3), the tenant has constructed a wall without permission of landlord which is creating obstruction in

moment of public at large and it has adverse effect to appearance of the threatre. It is also causing obstruction to the persons because after

construction of the wall, the talkies is not visible and this act is inconsistent with the purpose for which the tenant is admitted to the tenancy or is likely

to affect adversely and substantially the interest of the landlord. The trial court has elaborately discussed the evidence and recorded finding that the

construction is without permission of landlord and it is providing ground to the landlord for eviction under Section 12(1)(c) of the Act, 1961. This Court

has no reason to take a contrary view.

Fourth question for consideration before this Court is whether the premise in question is required bonafidely by the landlord for the purpose of

starting theatre by them and they have no reasonably suitable accommodation for the said purpose in the city. As per version of Chandra Kant

Chitlangya (PW-3), the premise in question is required to respondent No. 1 to 3 for running threatre bonafidely and they have no alternative

accommodation. On the contrary, Radhakishan Rathi, Sitaram Soni, Suresh Kumar Kothari deposed before the trial court that respondent No. 1 to 3

are living in different place and as per their power of attorney, they have delegated the power to dispose off the property, therefore, the property in

question is not required benafidely.

In view of this Court, presence of respondent No. 1 to 3 is not compulsory for running theatre because they can run the threatre through their

agent and servant and there is nothing on record to show that they entered into an agreement to alienate the property in question. Neither the tenant

nor the court can dictate the landlord how they will use their premise in question. It is their choice and no rationing can be imposed on them, therefore,

ground under Section 12(1)(f) of the Act, 1961 is also available to respondent No. 1 to 3.

Fifth question for consideration before this Court is whether the accommodation is required bonafidely by the landlord for making any substantial

additions or alterations which cannot be carried out without the accommodation being vacated as mentioned in Section 12(1)(h) of the Act, 1961.

Sanjeev S. Jain (PW-6) is an architect and as per version of this witness, tin of roof of the threatre, fall ceiling and angle joint are in deteriorated

condition and it is dangerous for persons to sit there while watching movie. Wiring of the electricity is also required to be repaired. Though the

witnesses adduced by the appellants side deposed that no repair is required, but the fact remains that the other witnesses are not from technical side,

therefore, their version is not sufficient to rebut the version of architect Sanjeev S. Jain (PW-6).

Admittedly, the theatre was constructed sometime in the year 1955 and it is not submitted before the trial court that when the said threatre was

repaired and how much amount was spent for maintaining the threatre. As 50 years passed after construction, the trial court is right in holding that the

threatre requires substantial alteration and it cannot be carried out without accommodation being vacated. The ground under Section 12(1)(h) is also

available to respondent No. 1 to 3. On overall assessment, argument advanced on behalf of the appellants is not sustainable.

Accordingly, the appeal is liable to be dismissed. The decree is passed against the appellants and in favour of respondent No. 1 to 3 on the

following terms and conditions:-

(i) The appeal is dismissed with cost.

(ii) The appellants to bear cost of respondent No. 1 to 3 throughout.

(iii) Pleaders' fee, if certified be calculated as per certificate or as per schedule whichever is less.

(iv) A decree be drawn accordingly.