Virendra Jain vs Prem Kumar Chourasiya

Prakash Shrivastava, J.

Heard on the question of admission.

This second appeal u/s 100 of the CPC is at the instance of the tenant challenging the judgment of the first appellate court dated 20.12.2012 dismissing the F.A. No. 26A/2012 filed by the tenant and affirming the judgment of the trial Court dated 3.7.2012 in C.S. No. 70A/2009, by which the suit for eviction filed by the respondent was decreed on the ground of bona fide need for residential purpose. The respondent had filed the suit for eviction pleading that he is the owner and landlord of the suit property which was let out to the appellant for about 25 years back. He had pleaded that the part of the property which is received by him in family settlement is not proper residential accommodation. The respondent has large family and he needs the suit accommodation for the residential need for himself and his family. He also pleaded that the accommodation which is presently in his possession, is not sufficient to satisfy the need and there is no alternate suitable accommodation for the said purpose in the town concerned. He also pleaded that the appellant had created the nuisance and committed default in payment of rent.

The suit was opposed by the appellant denying the bona fide need of the respondent and also pleading that the respondent has other alternate suitable accommodation. They also denied the ground of nuisance and the default in the payment of rent.

The trial Court by the judgment dated 3.7.2012 reached to the conclusion that the appellant is in bona fide need of the suit premises for the purpose of residence of his family, for which he has no alternate suitable accommodation in the city of Indore. So far as the ground relating to the nuisance is concerned, it was not found proved. The trial Court, therefore, decreed the suit u/s 12(1)(e) of the M.P. Accommodation Control Act and the said decree has been affirmed by the first appellate court.

Learned counsel appearing for the appellant submits that the courts below have committed an error in recording the finding that the respondent has no alternate suitable accommodation in the town concerned. He has referred to Ex. D/1 and has submitted that in another suit the needs of the respondent has been doubted. He has also submitted that the respondent has not pleaded the full details of the alternate suitable accommodation, therefore, decree could not have been passed.

Having heard the learned counsel for the parties and on the perusal of the record, it is found that the two courts below have examined in detail the issue relating to the bona fide need as well as non-availability of the alternate suitable accommodation to satisfy the need. On the proper appreciation of the evidence on record, both the courts below have found that the respondent is in need of the suit premises for the purpose of residence of his family members. It has been found that the respondent has a large family and the present accommodation in his possession is not adequate. The two courts below have also examined the issue relating to the non-availability of alternate accommodation. On the basis of the evidence placed on record, both the courts below have found that the respondent has no other alternate suitable accommodation in the town concerned to satisfy the need. So far as Ex. D/1 is concerned, it relates to the suit which was filed for the non-residential accommodation. Since the present suit is for residential accommodation, therefore, on the basis of Ex. D/1 it can not be held that the need for residential purpose does not exist. The alternate accommodation belonging to the respondent, which was disclosed before the trial Court, have duly been considered by the two courts below and have not been found to be the suitable alternate accommodation to satisfy the need.

The findings which are recorded by the two courts below are pure findings of facts, which are neither erroneous nor perverse. The issue which the appellant is raising, is concluded by the finding of fact. The appeal does not involve any substantial question of law, which is accordingly dismissed.

At this stage, counsel for the appellant has prayed for time to vacate the suit premises. Considering the entire circumstances of the case and taking note of the use to which the suit premises has been put to, the appellant is granted time to vacate the suit premises up to 30.6.2014 on the following conditions:-

(1) The appellant will furnish an undertaking before the trial Court within 4 weeks from today stating that he will handover the peaceful vacant possession of the suit premises to the respondent on or before 30.6.2014.

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

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

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

The appeal is accordingly dismissed.