Tej Karan and Another vs Meera Devi

Prakash Shrivastava, J.—This second appeal u/s 100 of the C.P.C. is at the instance of defendant tenant in the eviction suit challenging the judgment of the first appellate court dated 29th March 2005 dismissing the first appeal No. 62-A/2004 and affirming the judgment of the trial court. The trial Court by judgment dated 13/9/04 in C.S. No. 27-A/2001 had decreed the suit for eviction filed by respondent landlord. The respondent landlord had filed the suit for eviction pleading that the suit shop was let out to the appellant No. 1 on monthly rent of Rs. 960 and it was required by the respondent for expansion of the medical profession of her husband Vijay Kumar and son Manoj Sanghai. It was further pleaded that the suit accommodation was also required for her son Manoj Sanghai for his engineering business. The eviction was also sought on the ground that the suit accommodation was sublet by appellant No. 1 to appellant No. 2. Inspite of the termination of tenancy on 21/1/2000, the appellants had not vacated the suit premises, therefore, the suit for eviction was filed. The appellants had opposed the suit pleading that the respondent was not in bona fide need of the suit premises and she had alternate suitable accommodation. The other grounds raised in the suit were also denied.

Trial court by judgment dated 13/9/04 had decreed the suit finding that the respondent was in bona fide need of suit premises for the medical profession of her husband and son for which the respondent had no other alternate suitable accommodation. The trial court found that appellant No. 1 had illegally sublet the suit premises to appellant No. 2. The first appellate court by judgment dated 29th March 2005 has affirmed the decree of eviction passed by the trial court on both the grounds i.e. the ground of bona fide need as well as the ground of subletting.

This court by order dated 4/10/2006 had admitted the appeal on the following substantial questions of law:-

(a) Whether the courts below were justified in holding that a ground under Sec. 12(1)(f) of the M.P. Accommodation Control Act for the alleged need of plaintiffs (Dr. Husband and Dr. Son) is made out?

(b) Whether plaintiff could file a suit for the bona fide need of her husband (doctor) under Sec. 12(1)(f) ibid and seek eviction of the defendant-tenant when the husband is not specified in Sec. 12(1)(f) ibid as one of the member for whom eviction can be claimed?

(c) Whether on the facts pleaded and found proved it can be inferred that the need set-up by the plaintiff is not exclusively for her son Manoj but in fact it is either a joint need of her husband and son or for her husband only?

(d) In the absence of any pleading in the plaint that plaintiff does not have any alternative and suitable accommodation of her own in city for doing the alleged profession in question and having taken note of this fact by the learned trial court in paragraph 18 of the judgment dated 13/9/2004, whether the trial court as also the first appellate court were justified in still passing a decree in favour of the plaintiff?

(e) In the absence of the pleadings regarding availability of suitable and alternative accommodation in city, whether the evidence adduced by the plaintiff to that effect could be looked into and relied upon for granting a decree under Sec. 12(1)(f) of the Act in favour of the plaintiff?

(f) Whether the lower appellate court was justified in rejecting the application made by the appellant under Order 6 Rule 17 C.P.C. bringing to the notice of the court certain subsequent events having material bearing over the question of need and in particular construction of twelve additional rooms in the suit premises by plaintiff thereby satisfying the so called bona fide need assuming it existed at the time of filing of the suit?

(g) Whether the courts below were justified in holding that bona fide need as pleaded in the plaint is made out and if so whether such finding can be said to be legally sustainable so as to pass a decree under Sec. 12(1)(f) ibid?

(h) Whether the courts below were justified in holding that a ground under Sec. 12(1)(b) ibid is made out?

(i) For the absence of any issue framed on the ground covered under Sec. 12(1)(b) ibid whether the decree u/s 12(1)(b) could be passed by the trial court and could be affirmed by the first appellate court?

The above questions are answered as under:-

Questions No. (b) & (c).

Counsel for the appellants submits that u/s 12(1)(f) of the Act only non-residential need of the landlord, her major son and unmarried daughter can be considered and the need of husband of landlord cannot be considered.

As against this, counsel for the respondent has supported the decree of eviction passed u/s 12(1)(f) of the Act on the ground of bona fide need of respondent''s husband and son.

u/s 12(1)(f) of M.P. Accommodation Control Act (for short the Act) eviction can be sought for the bona fide non residential need of landlord, his major son, unmarried daughter or for any person for whose benefit accommodation is held. The two courts below on the basis of appreciation of evidence on record have found that the respondent has proved the bona fide need of the suit accommodation for expansion of medical profession of her husband Vijay Kumar and his son Manoj Sanghai. The Full Bench of this Court in the matter of Shri Badrilal Vs. Smt. Sita Bai and Others, while interpreting Section 12(1)(f) has held that business need of landlord will also include the need of his member of the family who is so closely dependent on landlord that his need is practically the need of the landlord but in the present case in the case of husband''s need, no such close dependency has been proved. However, the facts found proved clearly show that the son has independent need for expansion of his medical profession which is covered u/s 12(1)(f) of the Act being the need of major son of the landlord. Since undisputedly bona fide need of respondent''s son is covered u/s 12(1)(f) of the Act, therefore, even if the need of respondent''s husband is excluded, than also keeping in view the language of Section 12(1)(f) of the Act and the fact that need of the major son has been proved, the decree for eviction u/s 12(1)(f) of the Act will remain intact.

Question Nos. (a) & (g).

These questions relate to bona fide need pleaded by the respondent.

Learned counsel for the appellants submits that the suit for eviction was filed since the rent of the premises was not increased. He further submits that the landlord cannot seek eviction merely on the basis of the wish or desire unless the bona fide need is established. He has submitted that the respondent has failed to establish the bona fide need.

As against this, the respondent has submitted that the finding relating to the bona fide need recorded by the courts below is duly supported by the evidence which does not require any interference.

Having heard learned counsel for the parties and on perusal of the record, it is found that the issue relating to the bona fide need is essentially an issue of fact. The courts below on the basis of evidence led by the parties have found that the respondent has been able to prove the bona fide need of the suit premises for expansion of the medical profession of her son Dr. Manoj Sanghai and also for her husband. The courts below have noted that the respondent has sufficient fund for expansion of business. The place which the respondent''s husband and son are having is not adequate looking to the requirement of profession. It is found that the indoor patients are treated by them since they are established doctors and that meanwhile the population of the town has increased, therefore, they are in need of expansion of their profession and a larger and bigger places for their profession. It has been averred that they are in need of the patient ward, pathology, blood bank and x-ray machine etc. Some of the averments have even been admitted by the appellant''s own witnesses. It has further been found that there are large number of patients and there is not even proper place for their sitting. Considering these material, the courts below have rightly found that the respondent has been able to establish the bona fide need of the suit premises for non-residential purpose. The concurrent finding recorded by the courts below in this regard is essentially the finding of fact which does not suffer from any error. Even if the need of the husband is excluded than also the above finding remains un-effected in respect of the need of the son. Thus, the questions (a) & (g) are answered in favour of the respondent.

Questions No. (d) & (e).

Learned counsel appearing for the appellants has submitted that in the plaint, there is no pleading about the non-availability of alternate suitable accommodation with the plaintiff, therefore, the evidence in this regard cannot be looked into and since the respondent plaintiff has failed to establish one of the necessary ingredient of Section 12(1)(f) of the Act i.e. non availability of alternate suitable accommodation hence the eviction suit cannot be decreed.

As against this, the learned counsel for the respondent has submitted that not only there is pleading about the non-availability of alternate accommodation but since the parties had understood the issue and had proceeded on that basis and had led evidence about alternate accommodation, therefore, at this stage, the plea relating to absence of pleading cannot be considered.

Having heard the learned counsel for the parties on questions No. (d) & (e), it is found that for getting the decree of eviction on the ground of bona fide need u/s 12(1)(f) of the Act, the landlord in addition to establishing his/her bona fide need, is also required to prove that he/she has no other reasonable suitable non-residential accommodation of his own in the city or town concerned.

In the present matter, the respondent has pleaded the bona fide need for expansion of medical profession of her son and her husband. By way of amendment, paragraph 3 of the plaint was amended and it was pleaded that respondent had prepared a map for construction on the suit accommodation and except the construction as per map for the purpose of expansion, no other alternate accommodation is available. Thus the pleading in this regard is present in the plaint, though the said pleading has been challenged as vague and inadequate and in this background trial court has made observation in para. 18 of the judgment. The objection of lack of pleading about the alternate accommodation was also raised before both the courts below and it has not been accepted. The parties were aware of the requirement of Section 12(1)(f) about non-availability of the alternate accommodation and both the parties in this regard have led evidence. The two courts below have appreciated the evidence led by the parties and have found that the respondent has no other alternate accommodation. The so called alternate accommodation available with the respondent has duly been considered by the courts below before recording the finding in this regard in respondent''s favour. It is the settled position in law that if the pleadings are lacking or vague and if the parties have understood the case pleaded and have placed the requisite material, neither party is prejudiced. The Supreme court in the matter of Ram Narain Arora Vs. Asha Rani and Others, while considering the similar issue relating to the absence of pleading of other reasonable suitable accommodation in a suit for eviction on the ground of bona fide need, has held and observed as under:-

In making a claim that the suit premises is required bona fide for his own occupation as a residence for himself and other members of his family dependent on him and that he has no other reasonably suitable accommodation is a requirement of law before the Court can state whether the landlord requires the premises bona fide for his use and occupation. In doing so, the court must also find out whether the landlord or such other person for whose benefit the premises is required has no other reasonably suitable residential accommodation. It cannot be said that the requirement of the landlord is not intermixed with the question of finding out whether he has any other reasonably alternate accommodation. If he has other reasonably alternate accommodation, then necessarily it would mean that he does not require the suit premises and his requirement may not be bona fide. In such circumstances, further inquiry would be whether that premises is more suitable than the suit premises. Therefore, the questions raised before the Court would not necessarily depend upon only the pleadings. It could be a good defence that the landlord has other reasonably suitable residential accommodation and thereby defend (sic defeat) the claim of the landlord.

There cannot be a pedantic or dogmatic approach in the matter of analysis or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the court to decide the matter. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the Court neither party is prejudiced. If we analyze from this angle, we do not think that the High court was not justified in interfering with the order made by the Rent Controller.

This Court in the matter of Smt. Sujata Sarkar Vs. Anil Kumar Duttani, placing reliance upon the judgment of the Supreme court in the matter of Ram Narain Arora (supra) has held as under:-

A reading of the aforesaid two judgments clearly indicates that the requirement of the provision of law is that the appellant/plaintiff must show or bring material on record to the effect that he has no other alternative suitable accommodation in the city. Neither of the aforesaid two judgments lay down the law that pleading in this respect in writing in the plaint is mandatory or that absence of such pleading would non-suit the landlord from claiming a decree of eviction u/s 12(1)(f) of the Act for bona fide nonresidential requirement.

Even from a perusal of Section 12(1)(f) and other provisions of the Act, it is clear that there is no statutory mandate requiring that the plaintiff to maintain a suit on that ground, must compulsorily plead in the plaint that she has no alternative suitable accommodation in her possession. Even in the judgment of the Supreme court in the cases of Hasmat Rai (supra) and Ram Narain Arora (supra), the Supreme court has held that what is required is that the plaintiff must show, establish or prove that he has other alternative suitable accommodation in the city and in view of the aforesaid I am unable to agree with the learned counsel for the respondent/defendant that mere absence of pleading in the plaint in respect of non-availability of alternative suitable accommodation is fetal to the appellant''s case specifically in the facts and circumstances of the present case, wherein the appellant/plaintiff, through the evidence of Rajnikant Sarkar (P.W.-1) and Dr. Sanjeev Sarkar (P.W.-3) who have specifically stated in their deposition that they do not possess any other alternative suitable accommodation in the city of Jabalpur, has been able to show, establish and prove the requirements of Section 12(1)(f) of the Act, nor set up a case that the plaintiff owned or possessed any other alternative suitable accommodation in the city of Jabalpur.

In view of the above judgment and keeping in view the pleading incorporated by the plaintiff by way of amendment and also considering the fact that parties had adduced the evidence in this regard and after appreciating the evidence the courts below have also recorded finding about non availability of alternate accommodation, I am of the view that the objection of the respondent challenging the decree u/s 12(1)(f) of the Act on this ground cannot be sustained.

Counsel for the appellants has placed reliance upon the judgment of the Supreme court in the matter of The National Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad and Others, in support of his plea that in absence of the pleading the evidence produced by the parties cannot be considered. The appellants cannot be given the benefit of said judgment since the present is not a case where there is absolutely no pleading about non-availability of alternate accommodation. Even if the plea raised by the respondent in this regard is vague, the parties have proceeded on the said plea and have adduced evidence in regard to the availability/non-availability of alternate accommodation and after appreciating the evidence, the finding has also been recorded by the courts below. Counsel for the appellants has also placed reliance upon the judgment of this Court in the matter of Raj Kumar Jain Vs. Smt. Usha Mukhariya, , but that was a case where neither there was any averment in the plaint nor any evidence was led to prove that the plaintiff has no other reasonable suitable non-residential accommodation of her own in the town concerned. That was a case of total absence of pleading and proof relating to other alternate suitable accommodation but present case stands on different footing.

Thus keeping in view the aforesaid position in law and considering the findings recorded by the two courts below, I am of the view that the courts below have committed no error in passing the decree u/s 12(1)(f) of the Act by recording the finding in favour of respondent in respect of non availability of alternate accommodation.

Question No. (f).

This question relates to the rejection of the application under Order 6 Rule 17 C.P.C. filed by the appellants before the first appellate court in respect of the certain construction made by the respondent pending the suit.

Learned counsel for the appellants submits that the lower appellate court has committed an error in rejecting the application under Order 6 Rule 17 C.P.C. whereas on account of the subsequent event and construction of additional 12 rooms the bona fide need had come to an end.

Learned counsel for the respondent opposing the said arguments has submitted that the lower appellate court has rightly rejected the said application and the alleged construction has no effect on the need proved by the respondent.

Having heard learned counsel for the parties and on perusal of the record, it is found that before the lower appellate court, the appellants had filed an application under Order 6 Rule 17 C.P.C. proposing to raise the plea that during pendency of the suit and appeal, the respondent had constructed 12 rooms which had satisfied the needs setup by the respondent in the plaint. The said application was opposed by the respondent and was rejected by the lower appellate court. The lower appellate court while rejecting the application has assigned cogent reason. The lower appellate court has noted that the respondent opposing the application under Order 6 Rule 17 C.P.C. has filed the application for appointment of Commissioner so that the real position of construction on the spot could be brought on record but the said application for appointment of Commissioner was opposed by the appellants themselves. This indicates that the appellants were not interested to bring on record the correct position in respect of the alleged construction. The lower appellate court has also noted that the Commissioner was appointed by the trial court and he was also examined who had denied any construction behind the suit shop or in the passage. The court has also noted that 12 rooms as alleged cannot be constructed overnight. The appellants had filed the application at the final hearing stage with an intention to delay the proceedings. The reasons assigned by the court below for rejection of the application under Order 6 Rule 17 C.P.C. are just and proper therefore, no error has been committed by the lower appellate court in rejecting the application under Order 6 Rule 17 C.P.C. The counsel for the appellants in this regard has placed reliance upon the judgment of the Supreme court in the matter of Hasmat Rai and Another Vs. Raghunath Prasad, and in the matter of Ram Kumar Barnwal Vs. Ram Lakhan (dead), in support of the plea that in an eviction suit, the subsequent event relating to the satisfaction of the landlord''s need on account of the obtaining alternate accommodation is relevant but in the present case the first appellate court has not rejected the appellant''s application on the ground that subsequent event cannot be brought on record but it has been rejected finding that the application was not filed bonafidely.

Keeping in view the aforesaid, the question (f) is answered in favour of the respondent by holding that the lower appellate court has not committed any error in rejecting the application under Order 6 Rule 17 C.P.C.

Questions No. (h) & (i)

These questions relate to the grant of decree for eviction u/s 12(1)(b) of the Act on the ground of subletting the tenanted premises.

Learned counsel for the appellants submits that no issue was framed by the trial court in respect of subletting therefore, no decree u/s 12(1)(e) can be passed. He has further submitted that the suit premises was taken by appellant No. 1 for the use of appellant No. 2 and since there is no proof of parting of possession by appellant No. 1 in favour of appellant No. 2 therefore, the decree of eviction on the ground of subletting cannot be passed.

As against this, learned counsel for the respondent has submitted that there is pleading about subletting and parties have led evidence and the finding has been recorded, therefore, absence of framing of issues would not be fatal. He has referred to the pleading contained in the plaint as well as the written statement in this regard.

So far as non framing of issue about subletting is concerned, since both the parties were aware of the said ground taken by the plaintiff in the suit and had also adduced the evidence in this regard, therefore, non framing of issue would not be fatal. The Supreme court in the matter of Nagubai Ammal and Others Vs. B. Shama Rao and Others, has held that general rule that the evidence led by the parties on one issue should not be made the foundation for the decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity to adduce evidence, has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto. In the matter of Sree Swayam Prakash Ashramam and Another Vs. G. Anandavally Amma and Others, , the Supreme Court has held that if despite absence of specific issue, parties had understood their case and for purpose of proving and contesting it they had adduced evidence, the absence of issue is not material. This Court in the matter of Indira Kumari Jain Vs. Vishnu Kumar Pawar, has taken the view that when the parties are aware of the case then non framing of a particular issue pales into insignificance and non framing of issue would have no impact. In the present case though no issue in respect of subletting has been framed by the trial court but the said ground was taken in the plaint and was also responded, in the written statement. The parties had also adduced evidence on that issue and thereafter the finding has been recorded by the courts below holding that the appellants had sublet the suit premises. In this case admittedly the appellant No. 1 to whom the suit premises was given on rent is not in possession of the same and the respondent has established that the appellant No. 2 is in exclusive possession of the suit premises. In view of the judgment of the Supreme court in the matter of Ms. Celina Coelho Pereira and Others Vs. Ulhas Mahabaleshwar Kholkar and Others, once it is established that a party other than the tenant is in exclusive possession of the premises, presumption of subletting may be raised and that would amount to proof unless rebutted. The appellants have failed to rebut the same.

Counsel for the appellants has placed reliance upon the judgment of the Supreme Court in the matter of Fiza Developers and Inter-Trade P. Ltd. Vs. AMCI (I) Pvt. Ltd. and Another, but the benefit of the said judgment cannot be given to the appellants in view of the fact that in the present case, the parties were aware of the ground of subletting and they had also adduced evidence in this regard and the finding has been recorded by the court below in this regard. Counsel for the appellants has also placed reliance upon the judgment of the Supreme Court in the matter of Mahendra Saree Emporium Vs. G.V. Srinivasa Murthy, , but in the present case the appellants have not proved that they are in legal possession of the suit premises. In the said judgment also it has been held that the landlord can discharge the burden by adducing prima facie proof that the alleged sub-tenant is in exclusive possession of the premises and presumption of subletting may then be raised and would amount to proof unless rebutted. Counsel for the appellants has placed reliance upon the judgment of the Supreme court in the matter of Vaishakhi Ram and others Vs. Sanjeev Kumar Bhatiani, reported in (2008) 14 SCC 356 but in terms of the said judgment also, the respondent in the present case has proved exclusive possession of the sub-tenant.

In view of the aforesaid analysis, it is held that though no issue was framed relating to sublet u/s 12(1)(b) of the Act but since the said ground was pleaded and the parties had understood the said ground and had adduced evidence in this regard, therefore, considering the same, the courts below have committed no error in passing the decree u/s 12(1)(b) of the Act.

In respect of the ground of eviction u/s 12(1)(b) of the Act, both the courts below have reached to the conclusion that the suit premises has been sublet by the appellant No. 1 to appellant No. 2. The said finding is a concurrent finding of fact. The lower appellate court in this regard has taken into account the oral statement of D.W.-1 appellant himself as also Ex. P-2 which is the rent note. The admission made by appellant No. 1 in his statement before the trial Court has been considered and it has also been found that Ex. P-2 rent note does not contain the signature of appellant No. 2 Shashi Kumar, therefore, the stand of appellant No. 1 that Ex. P-2 contains signature of appellant No. 2 has been found to be false. Appellant No. 2 has been found to be in exclusive possession of the property but appellant No. 2 has not entered into the witness box to rebut the plea of subletting. Thus, it is held that the courts below were justified in holding that the ground u/s 12(1)(b) is made out.

In view of the aforesaid analysis, the substantial questions 2(h) & (i) are answered against the appellants and in favour of respondent by upholding the decree of eviction u/s 12(1)(b) of the Act.

Parties are also heard on I.A. No. 4166/11 filed by the appellants before this Court under Order 6 Rule 17 of C.P.C. for amending para. 4 of written statement and proposing to raise the plea about the vacating of another tenanted premises of the tenant Balram-Ramchandra Porwal and satisfaction of the need.

This Court vide order dated 13/2/13 had directed that the said IA will be considered at the time of final hearing. Accordingly, counsel for the parties are heard on this IA.

Counsel for the appellants submits that pending the appeal another tenanted premises has been vacated by the tenant Balram-Ramchandra Porwal, therefore, alternate suitable accommodation has become available to the respondent and the suit is required to be dismissed.

As against this, counsel for the respondent has pointed out that since the need is for expansion of the medical profession and hospital by the respondent''s son, therefore, in respect of three tenanted premises, three suits were filed which were decreed and against which three appeals were preferred before this Court. He has further submitted that out of these three appeals, two appeals are analogously heard, whereas the third appeal was decided earlier affirming the decree of eviction and in pursuance to the said decree, Balram-Ramchandra Porwal has vacated the tenanted premises. Thus vacation of said premises by Balram-Ramchandra Porwal cannot be said to have satisfied the need of tenant.

Keeping in view the facts which have been pointed out by counsel for the respondent, I find that the application has not been filed bonafidely and it has been filed only with a view to prolong the proceedings and need of the respondent is not satisfied on vacating the other premises by Balram Ramchandra Porwal. Accordingly I.A. No. 4166/11 is rejected.

Counsel for the appellants has further prayed for framing of additional substantial questions of law submitting that the respondent plaintiff her self has not been examined therefore, the suit should have been dismissed. In this regard, it is worth noting that the suit was for the bona fide need of respondent''s husband and her son and both these persons have been examined before the trial Court. The persons who have been examined before the trial Court had personal knowledge of the need. It has also been pointed out that husband of respondent was the power of attorney holder of the respondent and he has been examined before the trial court. This Court in the matter of Smt. Sujata Sarkar Vs. Anil Kumar Duttani, , has held that non examination of plaintiff to support her claim in respect of bona fide requirement of the accommodation for business of her son is not fatal in every case. In the present case, the evidence has been brought on record extensively through the oral and documentary evidence and no evidence has been withheld and the plaintiff could not depose before the court in person on account of her old age and ill health. In these circumstances I am of the view that the additional question which is proposed to be formulated by the counsel for the appellants before this court does not arise in the present matter.

In view of the aforesaid analysis, this appeal is dismissed and the decree of eviction u/s 12(1)(b) and 12(1)(f) of the Act is affirmed.

Counsel for the appellants in alternative, has prayed for time to vacate the suit premises.

Learned counsel for the respondent has not objected to the said prayer but has submitted that a longer period may not be granted to the appellants to vacate the suit premises. Considering the submissions, the appellants are granted time to vacate the suit premises upto 31.3.2014 on the following conditions:-

(1) The appellants will furnish an undertaking before the trial Court within 4 weeks from today stating that they will handover the peaceful vacant possession of the suit premises to the respondent on or before 31.3.2014.

(2) The appellants will comply with the money part of the decree within 6 weeks from today.

(3) The appellants will continue to deposit the rent of the suit premises on or before 7th of each month.

(4) The appellants will not create any third party right on the suit premises in the meanwhile.