Subhash Chand and Another vs Gyanchand

V.K. Agarwal, J.

This appeal is directed against the judgment and decree dated 20.3.1996 in Civil Appeal No. 58-A/91 by Additional District Judge, Sagar, directing that the Appellants/Defendants shall be evicted from the suit-premises, by reversing he judgment and decree dated 30.9.1992 in Civil Suit No. 58-A/1991 by Civil Judge, Class-II, Bina, District Sagar.

The Plaintiff/Respondent is admittedly owner and landlord of suit-premises bearing House No. 135, Masjid Ward, Bajriya, Bina, District Sagar. The Appellants/Defendants are tenants in the first floor of the said house. The tenanted premises is shown in the map attached to the plaint. It is also not in dispute that the Plaintiff/Respondent is presently residing in a house at Bina-ltawa situated in Kanoongo Ward.

The Plaintiff/Respondent filed a suit for eviction of the Defendants/ Appellants u/s 12 (1) (e) of the M.P. Accommodation Control Act (hereinafter referred to as the ''Act'' for short). It was averred that the Plaintiff/Respondent is in occupation of a protion of the house admeasuring 8''x 12''. The said accommodation is insufficient for the residence of the Plaintiff alongwith his family. His son has done his Post Graduation in medicine and is to be married. The other two sons of the Plaintiff have also to be married. The ground-floor of the house in which the suit-premises is located shall be untilised for business purpose, while the suit-premises of the first-floor would be utilised by the family for residence. The Defendants/Appellants resisted the suit. According to them, the house presently in occupation of the Plaintiff/Respondent is three-storeyed and there is sufficient accommodation in his possession for his residence. The Plaintiff has filed the suit mala fide in order to get higher rent for the suit-accommodation.

The learned trial Court dismissed the suit holding that the Plaintiff does not bona fide required the suit-accommodation. However, the appeal preferred by the Plaintiff/Respondent was successful and the learned lower appellate Court, by the impugned-judgment, held that the accommodation presently in occupation of the Plaintiff/Respondent for his residence is inadequate and that the suit-accommodation is required bona fide by him for the residence of himself and his family members.

This appeal has been admitted on the following substantial questions of law:

(1) Whether the Respondent is entitled to a decree u/s 12(1)(e) of M.P. Accommodation Control Act, 1961 on the ground that the alternative accommodation in his possession is not suitable for his residence ?

(2) Whether the Respondent can get a decree u/s 12(1)(e) of the M.P. Accommodation Control Act despite the fact that he has pleaded that he will use the ground floor only for business purposes ?

(3) Whether the decree for eviction u/s 12(1)(e) of M.P. Accommodation Control Act could be passed on the ground of future need which is not presently felt-need of the Respondent ?

The learned Counsel for the Appellants has mainly urged that the Plaintiff/Respondent is in occupation of his own house and is residing therein. Therefore, he was not competent to bring a suit for eviction of the Defendants from the suit-premises. It has also been urged that the suit-accommodation being let out for residential purpose, a decree for eviction in favour of the Plaintiff/Respondent could not have been granted for his alleged need of non-residential purpose. It has further been contended that the Plaintiff has pleaded and led evidence that he was to marry his children in future and, therefore, there was no existing need of the Plaintiff at the time the suit was filed by him. He could not succeed in a suit for eviction u/s 12(1) (e) of the Act on his alleged future need.

The learned Counsel for the Plaintiff/Respondent has urged that the evidence and material on record amply establish that the present accommodation in occupation of the Plaintiff is most inadequate for his residential needs. He cannot be forced to live in insufficient accommodation and that he has a right to live comfortably in his own house, if he so chooses. The Defendants have not shown that the Plaintiff/landlord wanted to enhance rent of the suit-premises so as to negative his claim that he required the suit-accommodation ''bona fide'' for his residence. It has also been submitted that the suit-premises does not consist of the ground-floor of the suit-house and the suit-premises consists of part of first floor of the house. The ground-floor was proposed to be utilised by the Plaintiff for business of the familly including the dispensary of the son of the Plaintiff/Respondent, while the first-floor would be utilised for the residence of the family. It has also been urged that the finding or fact as above cannot be disturbed in second appeal. It has, therefore, been urged that the impugned-judgment and decree granted in favour of the Plaintiff/Respondent directing eviction of the Defendants from the suit-premises is fully justified.

The Plaintiff Gyanchand Badkul (P.W.1) has stated that he is residing with his family in a house situated in the locality known as Bina-ltawa. It was their ancestral house. A partition has been effected herein and a portion of it has fallen in his share. It may be noted that the Plaintiff/Appellant in his pleadings, para-18(c), has alleged that the house in which he is presently residing was constructed on an area 8''x12'' and that it is three-storeyed. It has further been pleaded that the accommodation presently in occupation of the Plaintiff in the said houlse being insufficient, he purchased the suit-house. Therefore, the said house presently in occupation of the Plaintiff is obviously a small one. It may further be. noted that portion of the said house presently in occupation of Plaintiff has fallen in the share of other members of the family, as has been stated by Plaintiff Gyanchand Badkul (P.W.1). Therefore, it is obvious that he has a very small portion for himself and his family in the said house. The Plaintiff has stated that he wants to reside in the first-floor of the house in which the suit-premises is situated. He also states that his family would be carrying on business on the ground-floor. The ground-floor of the house is now being used by the elder son of the Plaintiff for carrying on his dispensary as has been stated by Plaintiff Gyanchand (P.W.1).

Therefore, the statement of the Plaintiff as above would indicate that he wants to reside in the upper portion and to carry on his business in the ground-floor of the house in which the suit-premises in located. The Plaintiff has stated that this would greatly convenience him. There appears to be nothing wrong in the desire as above by the Plaintiff/Respondent.

It is true that the portion of the first-floor of the house in which the suit-premises is located is vacant and is in possession of the Plaintiff and that the same has yet not been occupied by him. However, merely because some portion of the house is vacant and has hot been occupied by the Plaintiff/Respondent, it cannot be said that he has no real desire to occupy the suit-premises for this residence.

If the Plaintiff/landlord whats to occupy the whole of the first-floor for his convenient and comfortable residence, there is nothing unreasonable about it. The only consideration u/s 12 (1) (e) of the Act is as to whether the requirement of the suit-accommodation as alleged by the Plaintiff is bona fide. If that be so, then the Court shall not act as a rationing authority and determine as to what would be the sufficient space for occupation by the landlord. Reference in the above context may be made to Mohanlal Devilal v. Laxminarayan Dhulji (1962 MPLJ 1000) in which it has been held that the landlord cannot be campelled to stay in the accommodation to which the tenant points out. The alternative accommodation should be such as can reasonably accommodate the landlord and his family and should be totally suitable, The words "genuine" and "bona fide" imply the element of reasonableness; i.e., in setting out his needs of living space, accessibility and the like, the landlord should not do anything which a reasonable man in his position is not expected to do.

Similarly, in Narbadabai v. Kamlabal [1972 MPLJ SN (15)], it was held that the londlord is entitled to use his property with comfort. Although, the Accommodation Control Law puts restriction on the owner in the matter of eviction of tenants, the law does not purport to prevent the landlort from enjoying the use of his porperty. In the case of a house with a number of rooms, if the landlord wants all the rooms for his use, it cannot be said that he is acting with some ulterior purpose, unless it is shown that the landlord was intending to let out the rooms again on higher-rent. The Court is not a rationing authority under the Accommodation Control Act. The Law provides a check on the landlords, who intend to evict old tenants and to induct new tenants with higher rent or to dispose of the accommodation in some way. Similar proposition of law has been retiterated in Ramarao v. Dr. Prem Kumar Sinha (1990 JLJ 692).

In the instant case, it is obvious that the Plaintiff/landlord is at present residing in a small house. That house also is stated by him to have been partitioned and a part of the house only has fallen in his share. He has a growing family and at the time of the institution of the case and while his statement was recorded, he had three grown-up sons, one of them was Post-Graduate in Medicine. In the circumstances, he could not be expected or forced to continue to reside in portion of a small tenament admeasuring 8''x12'', even if it was three-storeyed.

The Plaintiff/Respondent has averred that on account of inadequacy of accommodation in his possession, he had purchased the suit-house. He got vacated the ground-floor of that house, in which his son had already started a Nursing Home. He states that he wants to reside in the upper-floor alongwith his family. It is true that a portion of the upper-floor is vacant, but there is nothing wrong in the Plaintiff/Respondent desiring to live confortably in the whole of the Arts-floor, after getting it vacated from the Defendants/Appellants. The Courts are not supposed to objectively determine the need of the Plaintiff and to direct or force him to live in a smaller portion, though he may desire to have a large space for his residence. The only consideration could possibly be, whether his requirement is bona fide and for that, it has to be seen, whether the allegation of requirement is made with some ulterior motive to get enhance rent or for getting higher value of the suit-permises. That does not appear to be so in the instant case.

The learned appellate Court was, therefore, justified in holding that no mala fide could be established by the Defendants/Appellants regarding requirement of the suit-premises. Moreover, simply because the Plaintiff/ Appellant is in occupation of some accommodation, which is not suitable for his residence, he cannot be denied relief u/s 12(1)(e) of the Act.

So far as substantial question of law No. (2) is concerned, in the instant case, it is obvious that the suit-premises is located in the first-floor of the house, which is required for the residential need of the Plaintiff and his family. The case of the Plaintiff/Respondent was that he required the ground-floor of the house for the business of the family. However, since the suit-premises is not on the ground-floor, the averment as above would not disentitle the Plaintiff to evict the Defendant/Appellant from the suit-premises, which forms part of first-floor of the house.

Regarding substantial question No. (3), it may be noticed that the case of the Plaintiff does not rest on future need. In fact, the Plaintiff/landlord pleaded that the accommodation presently in his occupation is small one and that he purchased the suit-house, which is a bigger one to live more comfortably. His family cansists of himself his wife and three grown-up sons and the present house in his occupation admeasures 8''x12'', Therefore the case of the Plaintiff was that he needs the accommodation for his residence with his family. His need was not a future need, but the paucity of the accommodation available with him was apparent and writ large from the extent of accommodation he was presently occupying and the number of his family members as also their age, status, etc'' Further his need was naturally likely to be increased by the marriage of his sons, which is a natural event, in view of the fact that all his sons were of marriageable age, one of them having already done his Post-Graduation in Medicine. Therefore, simply beacause there was an averment that his sons would be married in future, it cannot be said that the requirement as plaeaded by the Plaintiff was for his future need only.

In view of above, the finding of the learned lower appellate Court that the suit accommodation was required bona fide by the Plaintiff/Respondent for the residence of himself and his family members does not suffer from any infirmity and such a finding of fact does not call for interference in second appeal under section-100 of the Code of Civil Procedure. Reference, in this connection, may be made to Narendra Kumar Basantilal v. Radhakishan Chunnilal Rathore (1982 MPLJ 279).

The appeal has no merit and is accordingly dismissed. The judgment and decree of the learned lower appellate Court are confirmed. The Appellants/ Defendants shall bear their own costs of this appeal and shall pay that of the Respondent/Plaintiff also. Counsel''s fee, Rs. 500/- if certifed.