Ravindra Kumar Gupta vs Ramlal Garg

Tej Shankar, J.

This second appeal u/s 100 CPC has been preferred against the judgment and decree dated 5.4.1995 passed by Smt. Renu Sharma, Second Additional District Judge, Morena, whereby the judgment and decree passed by Smt. Meena Singh, Additional Civil Judge Class I, Morena dated 8.11.94 has been confirmed.

Facts necessary for the disposal of the appeal are that the plaintiff filed a suit for ejectment of the defendant from the premises in suit and recovery of Rs. 873.22 P. as means profits and future means profits at the rate of Rs. 125/- per month under a rent note dated 1.2.1979. He alleged that he was the owner of the house situated at Subat-Road, Morena. The defendant was tenant in the ground floor in a portion of a shop consisting of a hall, one room and one bukhari at Rs. 125/- per month under a rent note dated 1.2.70. The disputed accommodation has been shown in red in the plaint map. The tenancy commences from the 1st of each English Calendar month and ends with the last date of the month. The defendant paid rent upto June 1987 and the rent since 1.7.87 was due. The accommodation was required bona fide by the plaintiff for his adult son Vinod Kumar Garg for carrying on General Merchant business. There was no other suitable accommodation of his own in main-market (main road) Mandi Morena with him. His son was graduate and had no business of his own. In the ground floor, in the portion of the plaintiff''s house to the North-West of the disputed shop, plaintiff had his Ashok Oil and Floor Mill and had a godown. By the side of this house his Bardana is kept. The defendant was doing his business in the name of Girraj Transport Morena, which he had removed and had given it to his brother Kishan Kumar Gupta and he himself had started business in the name of Nirankari Transport at Daresi No. 3, Agra-4. He did not carry on business for the last 7 or 8 years in the disputed shop in the name of Girraj Transport. Kishan Kumar was doing that business. There had been partition of the joint family of the defendant and as such the defendant was liable for ejectment u/s 12 (1) (b) of the M.P. Accommodation Control Act as well. When the defendant was asked to vacate the shop for the plaintiff''s son, he asked to talk to Kishan Kumar, his brother. When he was approached he promised to vacate it by Diwali 86, but he did not vacate. A registered notice was given by the plaintiff to the defendant as well as his brother Kishan Kumar to vacate the accommodation and the tenancy was terminated from 30.6.87, but to no effect.

The defendant contested the claim, but admitted the tenancy, accommodation and the rate of rent. He alleged that the rent for the period up to June 87, the date of the suit was sent but the plaintiff refused hence a sum of Rs. 1125/-, being rent for the period from 1.7.87 to 31.3.88 was deposited in the Court. No amount of rent was due. It was incorrect that the accommodation was required by the plaintiff for his son bona fide for doing General Merchant business. Vinod Kumar was carrying on business of medicines at Agra. The suit is mala fide. The allegation that the defendant had given the accommodation to his brother and he is doing business in the name of Nirankari Transport, Darasi No. 3 Agra 4 has also been denied. He asserted that he was doing business at Morena in the disputed shop. There has never been any partition in the family. The case was not covered u/s 12 (1) (6) of the Act. It was incorrect that the shop in question remained closed. No notice was given to him. Only empty envelope was received. The plaintiff has no right to terminate the tenancy. He had sufficient accommodation with him at Morena. There was no shop of General Merchant in Bazar, where the disputed shop in question was situated. The plaintiff has filed a suit earlier as well and the litigation continued from 1971 to 1980. The suit was dismissed by this Court. The suit was barred by Section 11 CPC. The plaintiff had house No. 37, 39 and 41 at Telipada Morena and another house at Jiwaji Ganj Morena. Shops in the ground floor of these houses were in plaintiff''s possession and if the plaintiff wanted he can accommodate his son in those shops.

The learned trial Court framed issues that arose from the pleadings of the parties, took the evidence and after considering the entire material on record, held that the need of the plaintiff was bona fide and on this basis, the suit was decreed. The claim of sub-tenancy was however negatived. The defendant preferred an appeal but the learned trial Court confirmed the judgment and decree passed by the trial Court. Feeling aggrieved this second appeal has been preferred by the defendant.

The appeal has been heard, at the admission stage at the request of the learned counsel for the parties, on merits. Learned counsel for the appellant contended that the only question for consideration is as to whether the need of the plaintiff is bona fide. Under law, the plaintiff has to prove that he is the owner of the accommodation in dispute and requires the accommodation bona fide for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters and that he had no other suitable reasonable accommodation of his own in the city or town concerned. There is no pleading to the effect that the plaintiff had a house at Jiwaji Ganj, though it has been established on record. There is also no pleading with respect to the accommodation of Om Prakash Bakery, which had fallen vacant. The next contention of the learned counsel is that there is no plea that the accommodation is available with the plaintiff in his possession. The last argument of the learned counsel is that Vinod Kumar for whom the accommodation is sought to be vacated, carried on his own business at Agra in the name of Rati Medicals and as such the claim of the plaintiff was not tenable. Learned Counsel also referred to the statements of witnesses in this connection.

On the other hand, it has been contended that the plaintiff required the accommodation for his major son and there was no other reasonably suitable accommodation with the plaintiff in the Bazar in question for carrying on business of General Merchant. Learned Counsel also argued that there are pleadings about the specific accommodation available with the plaintiff and the plaintiff has clearly averred that other accommodation is not suitable for the business of General Merchant. Apart from it, he urged that there is a finding of fact with respect to bona fide requirement, which cannot he interferred with by this Court in second appeal.

I have considered the contentions raised by the learned counsel for the parties. The contention of the learned counsel for the appellant is that there are no specific pleadings are required u/s 12(1) (f) of the M.P. Accommodation Control Act. We have therefore to peruse the pleadings. Reference has been made by the learned counsel for the respondent to para 4 of the plaint. If we peruse this paragraph, we find that the plaintiff has mentioned about the accommodation, which is part of the house in which the disputed shop is situated. It is not disputed that the shop in question is situated at Subat Road, Sabalgarh road Morena. Thus, there is no averment is this paragraph with respect to the accommodation at Jiwaji Ganj. Learned counsel referred to the statements of the withensses and contended that it is admitted to the plaintiff that this house belonged to him and inspite of the fact that there is no mention specifically about the house at Jiwaji Ganj. There is an averment in para 4 of the plaint to the effect that the plaintiff had no reasonably suitable shop for running business of General Merchant in Mandi Morena, Main Road in vacant state.

The learned counsel relied on Madan Gopal Vs. Mamraj (1976) SC 461 wherein the apex Court held that pleadings are losely drafted in the courts and the Courts should not scrutinize the pleadings with such meticulous care as to result in genuine claims being defeated on trivial qrounds. In Kali prasad vs. M/s Bharat Cooking Coal Ltd. (AIR 1989 SC 1530) the apex Court held that when the partie, went to trial knowing fully well what they were required to prove and they had adduced evidence of their choice in respective claims and the evidence was considered by both the Courts below; they could not be allowed to turn round and say that the evidence should not be looked into. This court in Karan Singh Vs. Udaijeet (1987 (1) MPWN 31) observed that where knowing each other''s case parties went to trial pleadings loose significance. Similary in an other case Kailash Chandra Vs. Vinod (1993) (2) MPJR 394) this court observed that where the pleadings were deficient and the parties were related to each other, deficiency in the pleadings was immeterial, failure to specifically allege want of suitable alternative accommodation was held to he immaterial. The Division Bench of this Court in Kailash Chandra Vs. Vinod (1994 JLJ 277) ruled that where parties were living closely to each other, lack of pleadings on the ground of insufficient accommodation was not fatal, when evidence was led on both sides on the point. The defendant was not taken by surprise.

There is another authority of the learned Single Judge of this Court reported in Amnabai Vs. Govindsingh (1985 WN 12), wherein it was held that where the fact of suitability of accommodation was suppressed, but unsuitability of such accommodation was not shown, eviction decree was rightly refused.

In view of the aforesaid authorities and the law laid down by the apex Court, it is wholly clear that the mare fact that the pleadings do not specifically mention unsuitability of the house in Jiwaji Ganj, cannot be said to be fatal in the present case, if it is found from the material on record that the parties were aware of the facts that they have to meet and went to trial with full knowledge as to what they have to prove and have adduced evidence with respect to their claims and the material was considered by the Courts below. On a scrutiny of the material on record, it transpires that the plaintiff himself stated in para 6 of the statement that he had a house at Jiwaji Ganj, in which there were two rooms and the rest was khandhar. In both these rooms, his staff resided. There had been Galla Mandi at Jiwaji Ganj, which had been shifted to Nainagarh Road and as such it was covered into a residential area. There is no market or shop in the neighbourhood of the house and as such shop of General Merchant could not be carried out there. His house was at distance of 3 or 4 furlong away from the disputed shop. Thus, the fact that the plaintiff had a house at Jiwaji Ganj has been specifically admitted to him, but this statement by itself is not sufficient to show that the plaintiff had alternative accommodation. The law requires that the plaintiff must have some alternative suitable accommodation. The whole of the statement has to be taken into consideration and if the whole of the statement is taken into consideration it clearly goes to show that the two rooms of Jiwaji Ganj house are not suitable for the business of General Merchant as there were no shops. It was a Galla Mandi which has not been shifted to Nainagarth-Road.

The defendant in his statement in para 6 deposed that the plaintiff Ramlal has three houses in Morena one the disputed house, one at Jiwaji Ganj and one at Telipada. Regarding the house at Jiwaji Ganj, it was stated that there was a shop in the ground floor, which was in possession of the plaintiff. He further stated that in the neighbourhood of that shop, there was general merchant shop and some other shops. There are also some commercial shops. In cross-examination he categorically stated that he did not see Jiwaji Ganj house. He did not know whose General Merchant shop was there. He admitted that Jiwaji Ganj area was a residential area and was a part of Galla Mandi. He further admitted that Galla Mandi has been shifted some 5 years hack to Nainagarh Road. At Jiwaji Ganj at the Chouraha and the Ram Mandir there is a market. Thus, his statement cannot be taken to be sufficient to hold that the plaintiff had a suitable accommodation in the house at Jiwaji Ganj for the purpose for which he wants the shop in dispute for carrying on the business of general merchant for his son. Parties were alive to the situation and as such they adduced evidence in that regard. In this view of the matter, and in view of the law laid down by the apex court as well as this court in the authorities referred to above, the fact that there were no pleading that alternative house at Jiwaji Ganj was available is immeterial and will not affect the decision of the case. It may be reiterated that there is a clear averment in para 4 of the plaint that the plaintiff had no other suitable accommodation in the main market for carrying on the general merchant shop. I therefore, find no substance in the contention of the learned counsel for the appellant that there was lack of specific pleading with respect to the Jiwaji Ganj house as stated above.

Much has been argued by the learned counsel for the respondent with respect to house at Telipada. In this connection also both the parties adduced evidence and the Courts below have considered the entire evidence and found that the accommodation cannot be said to be a suitable accommodation. Learned appellate court held specifically that no evidence was produced on behalf of the defendant which may go to show that the plaintiff had any vacant accommodation in his possession at the main road Morena, which may fulfill his requirement. Learned appellate Court discussed in detail the entire material on record with respect to the alleged vacant accommodation with the plaintiff and after considering the entire material on record and the evidence had concluded as aforesaid.

I may mention here another argument of the learned counsel for the appellant which relates to the fact that Vinod Kumar had a medical shop in the name of Rati Medicos at Agra and he actually did not require the accommodation for carrying on general merchant shop in the accommodation in dispute. The contention is that the plaintiff''s need is not therefore, bone fide. This aspect too has been specifically considered by the learned court below. Learned appellate court in para 10 of its Judgment has held that it was established from the material on record that the shop of Rati Medicos was not run by Vinod kumar, but it was being run by Ashokkumar, plaintiff''s other son. In arriving at the conclusion the Court took into consideration the entire evidence and came to the conclusion that Vinod Kumar was not carrying on business in the name of Rati Medicos. The finding arrived at by the Courts below regarding the bona fide need of the plaintiff is a finding of fact. In view of what has been stated above, I do not find any justifiable reason to interfere in the finding of fact arrived at by the Courts below regarding the bona fide need of the plaintiff-respondent.

In the result, I do not find any merit in the appeal. It is accordingly dismissed. The appellant is however allowed 4 months time to vacate the premises and to hand over its possession to the respondent provided he gives an undertaking in the learned trial Court on affidavit that he will vacate and hand over peaceful possession at least by 12th of January, 1996 and will not induct any third person in it and also deposit the entire decretal amount and costs awarded by both the Courts as well as the costs of this appeal within 15 days from today. If the appellant fails to deposit the entire amount as aforesaid, and file an undertaking, the decree for ejectment shall become executable atonce.