Rameshwar Prasad Gupta and others vs Sanna Kumar Jain and others

S.K. Pande, J.

Being aggrieved by the judgment decree dated 30-4-2002 passed by the District Judge, Katni in C. A. No. 116/01 affirming the judgment-decree dated 28-9-2001 passed by the 3rd Civil Judge Class-I, Katni in C. S. No. 174-A/86, defendant/appellants have preferred this appeal u/s 100, Civil Procedure Code.

The appeal has been heard on the following substantial questions of law :-

(i) Whether Courts below erred in granting decree to the plaintiff/respondent u/s 12(1)(a) of the M. P. Accommodation Control Act, 1961, while the suit was filed within two months of the date on which notice of demand for arrears of rent was issued?

(ii) Whether Courts below erred in decreeing suit of the respondent u/s 12(1)(b) of the M. P. Accommodation Control Act. 1961, while the sub-tenancy was permissible as per Ex. D. 1?

(iii) Whether Courts below erred in granting decree u/s 12(1)(m) of the M. P. Accommodation Control Act, 1961 without specifying the time to restore the accommodation to its original condition and directing payment of compensation to the plaintiff?

(iv) Whether lower Appellate Court erred in allowing cross-objection filed by the respondent/plaintiff seeking eviction u/s 12(1)(f) of the M. P. Accommodation Control Act, 1961 without recording specific finding in this regard and modifying the judgment and decree of the trial Court?

Original tenant late Ramsakhe was inducted into the tenancy in the suit shop for non-residential purpose on monthly rent of Rs. 125/- per month by original landlord S. S. Dhanya Kumar Jain. Defendant/appellants and plaintiff/respondents are legal heirs of late Ramsakhe and S. S. Dhanya Kumar Jain. Plaintiff/respondent Prasanna Kumar Jain instituted C. S. No. 174-A/86 before the Civil Judge Class-I Katni seeking eviction of tenant-defendant/appellant u/s 12(1)(a)(b)(f)(m) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to "the Act" for short) on the ground that defendant/appellant remained in arrears w.e.f. 21-5-1978 and did not pay in spite of service of notice of demand. Part of suit shop has been sub-let to Mohandas Nanak Ram and without written permission of the plaintiff/respondent made or permitted to be made such construction as has materially altered the suit shop to the detriment of the plaintiff/respondents'' interest and is likely to diminish its value substantially. Further the suit shop is bona fide required by the plaintiff/respondents for starting a business of his own and there is no other suitable alternative accommodation of his own available in the city. The suit was resisted by the defendant/appellant stating inter alia that vide agreement dated 2-12-1956 (Ex. D/l) the tenancy of the suit shop was created wherein the original tenant late Ramsakhe was permitted to create sub-tenancy. Since then sub-tenant continued in possession of a portion of suit shop. Defendants/appellants have never created a new sub-tenancy in favour of any person. The suit shop since was let out to Ramsakhe for being used by members of joint Hindu family, by erecting temporary partition remained in use and occupation of tenant/appellants for carrying on their respective business. No construction which is likely to materially alter the accommodation or in any way diminish its value substantially has been carried out. Defendant/appellants received notice dated 3-11-1979 directing them to pay arrears of rent w.e.f. 21-5-1978. Plaintiff/respondents instituted the suit on 29-11-1979 before the expiry of statutory period of two months. Defendant/appellants promptly deposited the rent on 11-1-19S0. Plaintiff/respondent does not require the suit shop for starting business of his own as he is busy in his own business of Banking.

The Civil Judge in C. S. No. 174-A/86 vide judgment dated 28-9-2001 held that defendant/appellants remained in arrears and did not pay in spite of service of notice. They have carried out addition and alteration materially altering the accommodation to the detriment of the landlord''s interest and is likely to diminish its value substantially. Part of suit shop has been sub let illegally to Mohandas Nanakram. The suit shop is not bona fide required by plaintiff/respondent for starting a business of his own. Therefore, dismissing the claim seeking eviction u/s 12(1)(f) of the Act, decreed the suit u/s 12(1)(a)(b)(m) of the Act. Being aggrieved, defendant/appellants preferred C. A. No. 116/01 before the District Judge, Katni wherein plaintiffirespondents also preferred a cross-objection against dismissal of suit u/s 12(1)(f) of the Act. The court below affirming the judgment-decree passed by the Civil Judge in C. S. No. 174-A/86 held that the ground seeking eviction u/s 12(1)(f) of the Act has also been proved. Therefore, dismissing the appeal, allowed the cross-objection and decreed the suit seeking eviction u/s 12(1)(a)(b)(f)(m) of the Act. Being aggrieved, defendant/appellants have preferred this appeal u/s 100, Civil Procedure Code.

It is contended that court below erred in granting decree to the plaintiff/respondent u/s 12(1)(a) as the suit was filed within 2 months of the date on which notice of demand for arrears of rent was issued. Court below erred in decreeing the suit u/s 12(1)(b) of the Act while the subtenancy was permissible as per agreement (Ex. D/l). Court below erred in granting decree u/s 12(1)(m) without specifying the time to restore the accommodation to its original condition and directing payment of compensation to the landlord. Further the court below erred in allowing the cross-objection of the plaintiff/respondents seeking eviction u/s 12(1)(f) Of the Act without recording specific finding in this record and modifying the judgment and decree passed by the Civil Judge.

Admittedly, Ramsakhe the original tenant was inducted into the tenancy by father of plaintiff/respondents. Agreement dated 2-12-1956 (Ex. D/l) accordingly was executed by the parties concerned.,As per agreement dated 2-12-1956 (Ex. D/l) the original tenant agreed to pay rent at the rate of Rs. 125/- per month and the original landlord father of the plaintiff/respondents permitted him to create sub-tenancy as he so wishes. Since the time of original tenant late Ramsakhe sub-tenancy in favour of defendant/appellant Mohandas Nanak Ram remained in existence. In view of the fact of sub-letting in existence since the time of original landlord and original tenant the ground of eviction u/s 12(1)(b) would not be available to the tenant/respondents. In A.S. Sulochana Vs. C. Dharmalingam, it has been held that unlawful sub-letting must be done by the tenant himself and not by his predecessor-in-interest where the original tenant had sub-let the premises several years ago without being questioned by original landlord, the successor-in-interest (son) of the original tenant cannot be sought to be evicted by successor-in-interest (son) of the original landlord on ground of unlawful sub-letting in absence of any evidence showing that lease did not confer upon the original landlord right to create subtenancy or that the sub-letting was done without the written consent of the original tenant. Agreement dated 2-12-1956 between the original landlord S. S. Dhanya Kumar Jain and original tenant Ramsakhe specifically speaks that the original tenant Ramsakhe was permitted to create sub-tenancy. Even at the time of creation of tenancy vide this agreement dated 2-11-1956 there had been a sub tenant in the suit shop. As such the courts below erred in decreeing the suit seeking eviction u/s 12(1)(b) of the Act.

Admittedly, plaintiff/respondent sent a notice dated 3-11-1979 requiring the defendant/appellant to pay arrears w.e.f. 21-5-1978. u/s 12(1)(a) plaintiff/respondent was required to wait for a period of two months to seek compliance from the defendant/appellant. Instead the suit was immediately filed on 29-11-1979 before the expiry of statutory period of two months required u/s 12(1)(a) of the Act. Defendant/appellant on 11-1-1980 deposited the amount of arrears in C.C.D. in relation to C. S. No. 216-A/79 (174-A/86). In any case plaintiff/respondents'' suit seeking eviction u/s 12(1)(a) of the Act could not have been decreed. The court below therefore erred in decreeing the suit on the ground of non-payment of arrears of rent.

In Gurbachan Singh and another Vs. Shivalak Rubber Industries and others, it has been held that tenant would liable to be evicted if the alleged additions and alterations in premises by the tenant has materially impaired the value or utility of the premises and adversely affected the interest of the landlord. Therefore, to seek eviction of tenant u/s 12(1)(m) of the Act plaintiff/respondent must prove that tenant-defendant/appellants without the written permission have made any such construction as has materially altered the accommodation to his detriment and is likely to diminish its value substantially. Sub-section (10) of section 12 provides that no order for eviction of a tenant shall be made on the ground specified in Clause (m) of sub-section (1), if the tenant within such time as may be specified in this behalf by the Court restores the accommodation to its original condition or pays to the landlord such amount by way of compensation as it may direct.

PW/1 Prasanna Kumar has stated that tenant/appellants are members of joint Hindu family. They are carrying on their business separately in the suit shop. For this purpose they have erected walls affecting the partition and shutters have been fixed separately. The construction carried out by the defendant/appellants is detrimental to his interest. DW/1 Ram Kishan Gupta has stated that since the time of original tenant Ramsakhe his five sons were carrying on business separately. No permanent addition or alteration has been carried out in the suit shop. The suit shop has been partitioned by temporary construction having separate shutters. From the statement of PW/1 Prasanna Kumar infact no case seeking eviction u/s 12(1)(m) of the Act has been made out. Statement of DW/1 Ram Kishan Gupta makes it clear that since the time of original landlord S. S. Dhanya Kumar Jain, defendant/appellants were carrying on their business separately in the suit shop. For this purpose the suit shop was partitioned by erecting temporary walls and affixtures of separate shutters. Even otherwise it would not affect adversely to the interest of the plaintiff/respondent and as and when the defendant/appellants are likely to be evicted the temporary partition could well be removed restoring the suit shop in its original shape. Therefore, the courts below erred in decreeing the suit seeking eviction u/s 12(1)(m) of the Act.

PW/1 Prasanna Kumar has stated that earlier he was a partner of Central India Bankers, Katni. He seizes to be the partner of aforesaid Bankers w.e.f. 30-6-1979. The suit shop is bona fide required by him for starting a business of his own and there is no other alternative suitable accommodation of his own available in the city. PW/1 Prasanna Kumar in cross-examination para 3 has admitted that Firm Central India Bankers belongs to his family wherein he was one of the partner. No other witness of the Firm was examined to state that after 30-6-1979 PW/2 plaintiff/respondent in fact is not participating in the family business of Central India Bankers, Katni. DW/1 Ram Kishan Gupta has stated that PW/1 plaintiff/respondent Prasanna Kumar is still doing family business. This statement of DW/1 Ram Kishan is fully supported by DW/1 Rajendra Kumar. This witness has stated that he had visited the Firm Central India Bankers for a number of time and found plaintiff/respondent Prasanna Kumar working as a Manager of the Firm. On facts the Civil Judge in C S. No. 174-A/86 vide judgment dated 28-9-2001 rightly held that plaintiff/respondent cannot be said to be in bona fide need of suit shop for starting an independent business of his own. As such the suit seeking eviction u/s 12(1)(f) of the Act has been dismissed. The court below in C. A. No. 116-A/01, wrongly arrived at a conclusion that the suit shop is bona fide required by the plaintiff/respondent for starting a business of his own and there is no other alternative suitable accommodation available in the city. As such the court below erred in allowing the cross objection against the judgment-finding recorded by the Civil Judge in C. S. No. 174-A/86.

In Deena (Dead) through LRs. Vs. Bharat Singh (Dead) thr. LRs. and Others, the Apex Court held that concurrent findings of courts below in Second Appeal u/s 100, CPC cannot be reversed on basis of general observations. This court must give reasons for taking contrary view and must also discuss the materials based on which the lower courts came to their conclusions. With reference to this, the evidence on record has been examined. Courts below in fact misread the evidence-law on the point of bona fide need, sub-letting and addition-alteration adversely affecting the interest of the landlord which resulted into decreeing the plaintiff/respondent''s suit seeking eviction u/s 12(1)(a)(b)(f)(m) of the Act. The concurrent findings of fact arrived at by courts below are, therefore, perverse. As such, the judgment-decree passed by courts below are liable to be set aside.

Consequently, appeal succeeds. Setting aside the judgment-decree passed by the court below C. S. No. 174-A/86 seeking eviction of tenant/appellants from the suit shop stands dismissed. Parties to bear their costs throughout. Counsel fee as per rule or certificate (whichever is less).