Smt. Ramdulari and Others vs Mohinder Singh and Others

R.C. Lahoti, J.

Plaintiff-landlord has come up in second appeal feeling aggrieved by the judgment and decree of the lower appellate Court directing his suit for ejectment of the tenant-respondent to be dismissed in reversal of the decree of the trial Court which had decreed the suit.

This Court on 1.8.1991 admitted the appeal for hearing parties on the following substantial question of law :-

(1) Whether mere denial of landlord''s title in written statement affords a ground for eviction u/s 12(1) (e) of the Act?

However, on a prayer made by the learned counsel for the appellant, the appeal has been heard on the following additional questions of law as well :-

(2) Whether the need of the plaintiff''s son was established so as to make out a case covered by Sec. 12 (1) (f) of the M.P. Accommodation Control Act, 1961 ?

(3) Whether the facts set out in the plaint proved by plaintiff could have constituted a ground for ejectment only u/s 12 (1) (n) of the Act and ejectment having not been sought on that ground the suit could not be decreed ?

It is not disputed that the suit property is an open plot of land admeasuring 42(X). sq. ft. situated on the main road known as Krishan Kumar Road. Moudhapara, in the city of Raipur and occupied by the defendant for non-residential purpose at a monthly rent of Rs. 39/- only. The case of the plaintiff was that he required the suit plot bona fide for the purpose of starting the business activity of manufacturing wooden and steel furniture by his major son Ashok Kumar Dixit who was an educated unemployed having come of age and intending to settle in life. The plaintiff was possessed of sufficient funds and even experience to start such business activity. The plaintiff was not possessed of any other reasonably suitable accommodation to satisfy the need. The need of the plaintiff was denied by the defendant in his written statement.

On recording evidence, the trial Court found that the plaintiff''s major son was an unemployed graduate. He was having no business activity of his own. the plaintiff was having an engineering works of his own. The requirement of the plaintiff of the suit accommodation for starting the business activity of manufacturing furniture and having a show room for sale thereof was bonafide. These findings have not been reversed by the lower appellate Court. It is not much in dispute that such facts, if found proved, would certainly amount to a valid ground for ejectment under Sec. 12 (1) (f) of the Act.

However, the core of controversy lies in the tact that the suit accommodation was let out to the defendant-tenant as a plot of land whereupon the tenant had raised a quasi-permanent structure wherein he was running a workshop. At a later point of time, the defendant had removed his structure and shifted it to somewhere else. The evidence adduced by the plaintiff suggested that the proposed business activity of the plaintiff''s son could not be started on an open plot of land and it would be necessary to raise a construction wherein the manufacturing activity would be carried on and show room would come up.

The lower appellate Court formed an opinion that the case of the plaintiff was one of open land required by the landlord for constructing a house (residential or non-residential), which case the plaintiff had not pleaded in the plaint and unless and until that was done, the accommodation as it existed was incapable of being used for the purpose pleaded by the plaintiff, and hence no decree under Sec. 12 (1) (f) of the Act could he passed.

It would be useful to extract and reproduce the relevant provisions from the Act:

Restrictions on eviction of tenants. -

(1) Not withstanding anything to the contrary contained in (sic) law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :

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(f) that the accommodation let for non - residential purpose is required bona fide by a landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is owner thereof or of any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.

(n) In the case of accommodation which is open land, that the landlord requires it for constructing a house on it.

Fortunately, there is no dispute at the Bar on the proposition that Clauses (f) and (n) are not mutually exclusive and if on the facts pleaded and found proved the case is partly covered by clause (f) and the partly by clause (n), the former would give way to the later. The case at hand is however of the opposite type.

It would have been better if the landlord - plaintiff would have sued for ejectment of the tenant by pleading and proving a simple case under Clause (n) because it would have been easier for him to secure a decree thereunder. He would have succeeded in securing ejectment of the tenant merely by proving ''requirement'' though not even bona fide but something more than a mere desire. The volume of onus in a case under Clause (n) is far lesser than the one under Clause (1). Nevertheless, the plaintiff has come out with a case this is a genuine need'' and what remains to be seen is whether he can be denied relief merely because he has failed to allege that he would be raising a construction before he may put in the premises to satisfy his bonafide requirement.

No decided case has been brought to the notice of this Court enabling solution of the problem posed. Leelawanti v. Shrichand (1991 J. I. J. 115) cited by the learned counsel for the appellant is of no assistance inasmuch as there the eviction was sought on grounds of construction and bonafide requirement of starting business, the requirement of starling business was found not proved and still the suit was held liable to be decreed on ground of need for construction. That situation was a reverse one.

Useful assistance can be derived from the law laid down by their Lordships of the Supreme Court in two decisions. Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, was a case where the landlord needed the suit accommodation for his own residence after effecting several additions, alterations and necessary changes in the premises as they had become unsafe for human residence. It was contended that the requirement of the ground for ejectment for making additions, alterations and changes was not made out and hence the plaintiff was liable to be non-suited. What their Lordships held is as under :

..We do not therefore agree with the contention that cl. (g) will apply only when the landlord bonafide needs to occupy the premises without making any alteration in them i.e., to occupy the identical building which the tenant occupies. There is no justification to give such a narrow construction either to the word "premises" or to the word "occupies" which have been construed by this Court in Krishanal Ishwarlal Desai v. Bai Vijkor, Civil Appeal No. 804 or 962 D/- 18-1-1963 referred to later.

The provisions of cl. (hh) cannot possibly apply to the case where a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish premises and to erect a new building on them. The provisions of cl. (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants.

Dismissing the tenant''s appeal, the decree for ejectment was upheld.

Ramniklal''s case (supra) was relied on by their Lordships of the Supreme Court in a later case. Radhey Shyam and Others Vs. Kalyan Mal, which was a case under the M.P. Act. In Ramniklal''s case the premises were to be utilised by the landlord for satisfying the bonafide requirement of residence of himself after making additions, alterations and necessary changes, the latter set of facts being an independent ground of ejectment under the law. In Radhey Shyam''s case, the landlord had required the premises bona fide for the purpose of having his gold and silver ornaments factory after demolishing the present building and putting up a new building at the place. The argument of The tenant was that the case being one of reconstruction, constituting an independent ground of ejectment, unless the ingredients and requirement thereof were pleaded and proved, the landlord could not have had secured a decree of ejectment. Repelling the contention, their Lordships of the Supreme Court extended the principle of Ramniklal''s case to the case of demolition and reconstruction and utilising the building for own requirement by the landlord and held :

Mr. Sen submitted that the eviction ordered is under S. 12(1) (h) of the Act and that S. 18 of the Act is attracted and it is obligatory on the part of the landlord to provide accommodation of equal extent to the tenants in the new building to be constructed by him. The first Appellate Court has observed in its judgment that the order of eviction is sought on the main ground of the bonafide requirement of the landlord. Therefore, there is no case for the application of S. 18 to the facts of the present case. Though the Courts below have passed the order of eviction under sec. 12(1) (f) and (h) we are of the opinion that the order of eviction is based really and substantially only under S. 12 (1) (f) of the Act. The fact that S. 12 (1)(h) is also mentioned (sic) of the Courts below does not make the order of eviction purely (sic) under that section, for the main ground of requirement of file landlord is bona fide personal requirement for locating his proposed factory for the manufacture of gold and silver ornaments. A case more or less similar on facts had come up before this Court in Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, which arose from proceedings taken under the Bombay Rents. Hotel and Lodging House, Rates Control Act (57 of 1947). There the eviction was sought under Sec. 13(1)(g) and Sec. 13(1)(hh) of the Act. Sec. 13(1) (g) of that Act corresponds to Section 12 (1) (f) of the Madhya Pradesh Accommodation Control Act and Sec., 13 (1) (hh) of that Act corresponds to Section 12 (1) (g) namely that the building is required for effecting either repairs or alterations. This Court has observed in that that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from the tenant under the provisions of sub-cl. (g) of Sec. 13(1) irrespective of the fact whether he would occupy the permises without making any alterations or after making the necessary alterations.

Taking assistance from the law laid down by their Lordships of the Supreme Court in the abovesaid two cases, this Court is of the opinion that in a case where the landlord needs the premises for continuing or starting such business activity as can be carried out only in constructed premises and the suit accommodation is an open plot of land, still ejectment can be had under Sec. 12 (1) (f) of the Act, it being immaterial that the tenancy premises as a plot cannot satisfy the requirement of the landlord who shall have to raise a construction before putting the accommodation to his desired use In the opinion of this Court, the trial Court had not erred in decreeing the suit. The lower appellate Court was not right in reversing the decree of the trial Court.

The plaintiff-landlord had by way of abundant caution tiled an application under Order 6 Rule 17 C.P.C. along with the memo of second appeal seeking amendment of the plaint so as- to specify that the suit accommodation would be utilised for satisfying the desired requirement after raising a construction thereon. This amendment appears to have been sought by the appellant on account of his having gained wisdom after suffering dismissal of his suit at the hands of the lower appellate Court. In the background of the view of the law which this Court has taken, the amendment proposed becomes unnecessary. it is not necessary to dilate further on the plaintiff''s application seeking amendment.

For the foregoing reasons, the appeal is allowed. The judgment and decree of the lower appellant Court are set aside and those of the trial Court restored. In the facts and (sic) of the case, the parties are left to bear the costs as Incurred throughout Counsel''s fee as per schedule, if certified.

Though the appeal has been allowed and the suit filed by the plaintiff-appellant is held liable to be decreed, yet. to relieve the defendants from the hardship of sudden ejectment, it is directed that the decree for ejectment shall not be available for execution for a period of two months front today.