Sajid and Another vs Amtulah Bai

N.K. Mody, J.—Being aggrieved by the judgment and decree dated 12/01/2010 passed by ADJ, Shajapur in civil regular appeal No. 17-A/2009 whereby the judgment and decree dated 16/06/2009 passed by Civil Judge, Class-I, Shajapur in civil suit No. 11-A/2004 whereby decree of eviction was passed against the Appellants u/s 12(1)(a) and (f) of M.P. Accommodation Control Act (which shall be referred hereinafter as "Act"), was modified by maintaining the decree only u/s 12(1)(a) of the Act, the present appeal has been filed.

This appeal was admitted by this Court for final hearing on the following substantial question of law:

Whether in the facts and circumstances of the case learned Courts below committed error in passing the decree of eviction against the Appellant u/s 12(1)(a) of the M.P. Accommodation Control Act?

Upon the cross-objections filed by the Respondent following substantial question of law was framed by this Court vide order dated 16/07/2010:

Whether in the facts and circumstances of the case learned Appellate Court was justified in setting-aside the findings of the learned trial Court relating to Section 12(1)(f) of the M.P. Accommodation Control Act?

Short facts of the case are that suit for eviction was filed by the Respondent on 24/06/1997 against the Appellants alleging that the Appellants are the tenant in the suit accommodation situated at Chota Chowk, Opposite to Mosque, Shajapur. It was alleged that the suit accommodation was taken on rent by the Appellants @ Rs. 30/- per month with effect from 25/09/1973. It was alleged that subsequently the rent was enhanced to Rs. 175/- per month w.e.f. 01/01/1995. It was alleged that the Appellants are in arrears of rent w.e.f. 01/01/1997 which has not been paid inspite of notice of demand dated 14/01/1997. It was alleged that the second notice was also issued on 15/03/1997 but inspite of that rent was not paid. Further case of Respondent was that Respondent requires the suit accommodation bonafidely for the need of her son for which Respondent is having no alternative accommodation. It was prayed that decree of eviction be passed u/s 12(1)(a) and (f) of the Act.

The suit was contested by the Appellants by filing written statement wherein all the allegations made in the plaint were denied, however, tenancy @ Rs. 30/- per month was not disputed. It was denied that the tenancy of the Appellants is @ Rs. 175/- per month. It was denied that Appellants are in arrears of rent w.e.f. 01/01/1997. It was alleged that Appellants are tenant @ Rs. 100/- per month. It was alleged that rent for the month of December, 1996 and January, 1997 Rs. 200/- was sent by the Appellants to the Respondent which was duly received by the Respondent. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court decreed the suit u/s 12(1)(a) and (f) of the Act against which an appeal was filed which was allowed in part by maintaining the decree u/s 12(1)(a) of the Act and setting-aside the decree u/s 12(1)(f) of the Act. Against that part of the decree which was maintained present appeal has been filed in which cross-objections have been filed by the Respondent.

Learned Counsel for the Appellants argued at length and submit that the impugned judgment and decree passed by learned Courts below are illegal, incorrect and deserves to be set-aside. It is submitted that it was only the rent of August, 1999 and September, 1999 for which the receipt could not be produced by the Appellants while the rent was duly deposited. However, to avoid any controversy application was moved for condonation of delay which has wrongly been dismissed by learned Courts below. It is submitted that since the plea raised by Appellants in the application was that the amount has already been deposited, therefore, there was no justification on the part of learned Courts below in dismissing the application for condonation of delay specially in the facts and circumstances of the case that the Appellants were regularly depositing the rent as per Section 13(1) of the Act. Learned Counsel placed reliance on a decision in the matter of Bhagwandas Pawaiya v. Regd. Firm Kailash Narain 1994 JLJ 174 wherein tenant deposited rent though late and landlord withdrawn the same without any objection as to delay in deposits. It was held that delay either waived or condoned, no decree of eviction can be passed u/s 12(1)(a) of the Act.

So far as decree of eviction u/s 12(1)(f) of the Act is concerned, it is submitted that learned appellate Court has rightly refused the decree u/s 12(1)(f) of the Act. It is submitted that burden to prove that the Respondent requires the suit accommodation for the need of her son Kutubudin was on the Respondent and right from beginning case of the Appellants was that Kutubudin is residing at Mumbai. It is submitted that except Ration Card Ex. P/12 there is nothing to prove that Kutubudin is residing at Shajapur. It is submitted that Ex. P/12 also does not prove that at the time of institution of suit Kutubudin was residing at Shajapur. It is submitted that no other documents such as election ID card, voter list etc. which could have been a authentic proof was submitted by the Respondent in evidence to prove the fact that Kutubudin is residing at Shajapur. It is submitted that Appellant has proved that Kutubudin is owner of a shop and is carrying-on his business in the name and style of Kutubudin Electricwala having a shop at Haji Kasam Chal, 2-Tanki Bindi Bazar, Kajipura Building, Mumbai. It is submitted that no prudent man will leave Mumbai who is having a flourishing business and came back to Shajapur. It is submitted that there were lot of contradictions in the statement of Kutubudin and the Respondent which has not been taken into consideration by learned appellate Court. It is submitted that except on the date of evidence Kutubudin never appeared in Court, which shows that Kutubudin is residing at Mumbai. Learned Counsel placed reliance on a decision in the matter of Shyamlal v. Hajarilal 2007 (II) M.P.A.C.J. 238 wherein suit filed for bonafide requirement for carrying on business of electrical goods was dismissed by two Courts, this Court held that element of bonafide requirement in the sense of a felt need which is an outcome of sincere, honest desire in contradiction with mere pretense or pretext to evict a tenant is conspicuously missing. This Court further held that for making out a case for bonafide requirement the landlord has to prove the sincere, honest desire and since the finding recorded by two Courts are the finding of fact does not suffer from any perversity or misreading or non-reading of relevant evidence leading to miscarriage of justice, therefore, the appeal was dismissed. Learned Counsel further placed reliance on a decision in the matter Sardarmal v. Ashish 2007 (I) M.P.A.C.J. 385 wherein this Court held that question of bonafide need set-up by the landlord whether for residential purpose or non-residential, is a question of fact. It was further held that it is only when the findings so recorded on this issue is found to be dehors the pleadings or against the evidence led or is based on no evidence or is against the statutory requirement of law or it is so bad that no judicial man can ever reach to its conclusion, then such finding is amenable to interference in second appeal. Further reliance is placed on a decision in the matter of Shri Uttam Chand and Another Vs. Shri Purushottamdas Ji Patel, wherein first appellate Court has held that the alternative accommodation available with the Plaintiffs is reasonably suitable for the business and decree passed was reversed, this Court has held that finding of first appellate Court is just and reasonable and no substantial question of law is involved. Reliance is also placed on a decision in the matter of S.J. Ebenezer Vs. Velayudhan and Others, wherein Hon''ble Apex Court has held that mere desire of landlord not sufficient to constitute bonafide need and the said desire is to be tested objectively. Burden also lies upon landlord to establish that he genuinely requires the accommodation.

On the strength of aforesaid position of law, learned Counsel for the Appellants submit that learned appellate Court has rightly refused the decree u/s 12(1)(f) of the Act. It is submitted that appeal filed by the Appellants be allowed and the impugned judgment passed by learned trial Court whereby decree of eviction was passed against the Appellants u/s 12(1)(a) of the Act be set-aside and the cross-objections filed by the Respondent be dismissed.

Mr. A.K. Shrivastava, learned Counsel for the Respondent submits that after due appreciation of all the facts and circumstances of the case learned trial Court has rightly rejected the application for condonation of delay which was within the discretion of learned trial Court and the same is affirmed by learned appellate Court which requires no interference. Learned Counsel placed reliance on a decision in the matter of Kamlabai Wd/o Jeenlal Sharma v. Surjeet Kaur Oberoi 2010 (II) MPACJ 1 wherein Trial Court decreed the suit u/s 12(1)(f) of the Act, which was set aside in appeal, this Court held that learned Appellate Court committed error of law in reversing the findings recorded by the learned trial Court with regard to Section 12(1)(f) of the Act. Further reliance is placed on a decision in the matter of Premchand v. Radheshyam 2010 (I)MPACJ 118 wherein suit for eviction of tenant was decreed by the trial Court and in appeal it was set aside, this Court held that once the landlord establishes his bonafide need for the accommodation, then it is not for the Court to decide as to sufficiency or insufficiency of the accommodation as the need of landlord is paramount and he cannot be directed or forced to make do with the accommodation available with him nor can a decree of eviction be denied on the ground that the accommodation available with him is sufficient. On the strength of aforesaid position of law, learned Counsel submits that the learned Courts below has rightly passed the decree against the Appellants u/s 12(1)(a) and (f) of the Act and the learned Appellate Court committed error in setting aside the decree passed u/s 12(1)(f) of the Act. It is submitted that in the facts and circumstances of the case, appeal filed by the Appellants be dismissed and the cross-objections filed by the Respondent be allowed.

From perusal of the record it is evident that the suit for eviction was filed on 24/06/97, which was decreed by the learned trial Court on 24/12/04, against which an appeal was filed which was numbered as 34-A/05 and was dismissed on 07/03/06, against which Second Appeal was filed by the Appellants which was numbered as SA. No. 283/06 and was allowed vide judgment dated 18/12/08 observing that it is now necessary to remand the case back to the trial Court which is to afford opportunity to both the sides to lead additional evidence in support of their respective case and thereafter the Trial Court shall pass judgment and decree in accordance with law. In compliance of the remand order, after recording of further evidence again suit was decreed by the trial Court vide order dated 16/06/09, which was modified by the learned Appellate Court vide judgment dated 12/01/10 whereby while maintaining decree u/s 12(1)(a) of the Act, decree passed by the learned trial Court u/s 12(1)(f) of the Act was set aside.

To prove the case Respondent has filed the documents Ex. P/1 to Ex. P/12. Ex. P/1 is the rent note dated 25/09/1973 whereby suit accommodation was letted out on rent @ Rs. 30/- per month, Ex. P/2 is the rent receipt whereby Appellants agreed to pay rent @ Rs. 175/- per month w.e.f. 01/01/95, Ex. P/3 is the notice dated 14/01/97 for eviction of Appellant, Ex. P/4 and Ex. P/5 are the registry receipt and acknowledgement, Ex. P/6 is reply notice issued by the Appellants on 18/02/97, Ex. P/7 is again notice dated 15/03/97 issued by the Respondent, Ex. P/8 is the UPC receipt whereby notice was sent, Ex. P/9 is the rent note of Imamuddin dated 01/02/67, Ex. P/11 is the copy of register of establishment, Ex. P/12 is the copy of Rashan card. Apart from the aforesaid documentary evidence, Respondent has examined herself as P.W./1, Gulam Hussain P.W./2 and Kutubudin P.W./3.

Appellants have produced the documents Ex.D/1 to Ex.D/14. Ex.D/1 is the photocopy of the rent note dated 25/02/73, Ex D/2 is the agreement dated 25/02/73, Ex.D/3 to Ex.D/11 are the copies of the abstracts of the cash book maintained by the Appellants, Ex.D/12 and Ex.D/13 are the money order coupons, Ex.D/14 is the death certificate of Abdul Ansari. Apart from this Appellants have examined Mohammed Siddiqui D.W./1, Abdul Ajij D.W./2, Abdul Shahid D.W./3, Abdul Hamid D.W./4, Sagir Khan D.W./5 and Abdul Wahid D.W./6.

So far as decree of eviction u/s 12(1)(a) of the Act is concerned, the case of the Respondent is that the Appellants are in arrears of rent w.e.f. 01/01/97, which has not been paid inspite of notice of demand. It is no more in dispute that the rent was sent to the Respondent for the month of December, 1996 and January, 1997, which was duly accepted by the Respondent. For making out a case u/s 12(1)(a) of the Act fundamental requirement is that the tenant should be in arrears of rent. Notice of demand is issued by the landlord to the tenant which should be duly served, whereby arrears was demanded and inspite of notice of demand, tenant fails to pay or tender the arrears of rent to the landlord. As per the plaint allegations itself Appellants are in arrears of rent w.e.f. 01/01/97. Ex.P/1 is the notice dated 14/01/97 at that time no rent was due as the arrears was being claimed from 01/01/97. Another notice is Ex.P/7 which is dated 15/03/97 of which receipt of registry and acknowledgement has not been filed and also in the said notice no demand of payment of arrears of rent was made. Thus, it is clear that for making out a ground u/s 12(1)(a) of the Act the basic requirement has not been fulfilled. Since the ground u/s 12(1)(a) of the Act itself was not available as the Appellants were not in arrears and no notice of demand was sent and also there is no proof of receipt of the notice Ex. P/7, therefore, this Court is of the view that both the Courts below have committed error in passing the decree u/s 12(1)(a) of the Act. Even if at the subsequent stage any default is committed by the Appellants in payment of rent from month to month, then too, no decree of eviction can be passed as the ground itself was not available.

So far as decree u/s 12(1)(f) of the Act is concerned, in first round of litigation learned trial Court and also learned Appellate Court held that the Respondent has proved the ground u/s 12(1)(f) of the Act. In Second Appeal before this Court the case was remanded to the learned trial Court to adduce further evidence, therefore, after the remand learned Court below were required to see whether any subsequent evidence adduced by the Appellant disentitles the Respondent from the decree of eviction u/s 12(1)(f) of the Act. In the present case after the remand by this Court vide judgment dated 18/12/08 Appellants have examined D.W./4 Abdul Hamid, Sagir Khan D.W./5 and Abdul Wahid D.W./6 on 27/04/09. D.W./4 states that Kutubudin is not residing at Shajapur and carrying on his business at Bombay. D.W./5 Sagir Khan who is driver submits that whenever he goes to Bombay he finds the Kutubudin their. D.W./6 Abdul Wahid proves the registration of the shop. Thus, there is absolutely no evidence after the remand of the case, which goes to show that Kutubudin was residing and carrying on business at Mumbai. Even if it is assumed that Kutubudin was doing some business at Mumbai and wants to do the business at Shajapur in his own shop, then too, there is noting on the basis of which it can be said that need of the Respondent is not bonafide. From the record it is evident that parents of Kutubudin and his sisters are residing at Shajapur. Kutubudin is also having ancestral property at Shajapur, therefore, there are possibilities that Kutubudin must have decided to carry on the business at Shajapur.

There is nothing on record to show that Respondent is having flourishing business at Mumbai. In the facts and circumstances of the case, there was no justification on the part of learned Appellate Court in setting aside the findings recorded by the learned trial Court u/s 12(1)(f) of the Act, which was also found proved in earlier round of litigation. So far as decree u/s 12(1)(a) of the Act is concerned, this Court is of the view that no decree could have been passed as Appellants were not in arrears of rent. In view of this, appeal filed by the Appellants is allowed and the cross-objections filed by the Respondent are also allowed by setting aside the decree passed by the learned Courts below u/s 12(1)(a) of the Act and by setting aside the findings of the learned Appellate Court whereby decree u/s 12(1)(f)of the Act was refused and the judgment passed by the learned trial Court so far as it relates to Section 12(1)(f) of the Act is concerned, is restored.

However, the order of eviction shall not be executed on or before 31/07/2011 on the condition that the Appellants herein file an undertaking before the learned trial Court within six weeks to the following effect namely:

that the Appellants herein shall not induct any other person in the suit premises and shall hand-over vacant and peaceful possession of the said premises to the Respondent/landlord on or before 31/07/2011.

that the Appellants herein shall pay to the Respondent/landlord arrears of rent, if any, within one month from today and shall pay to the Respondent/landlord future compensation for use and occupation of the suit premises month by month before the 10th day of every month.

With the aforesaid observations, appeal stands disposed of. No order as to costs.