Yashoda Das (Smt.) and Others vs Ram Chandra Rath

T.P. Sharma, J.—By this second appeal filed u/s 100 of the Code of Civil Procedure, 1908 (for short ''CPC''), the appellants have challenged the legality and propriety of the judgement and decree dated 2.4.93 passed by the 3rd Additional District Judge, Bastar at Jagdalpur, in Civil Appeal No. 1A/91, reversing the judgement and decree by the Additional Civil Judge Class -1, Jagdalpur, in Civil Suit No. 25A/89.

The present second appeal has been admitted for consideration on the following substantial questions of law: -

Whether a residential accommodation and an accommodation situated in the back side of the house can be said to be a suitable alternative accommodation when the requirement is one of non -residen(sic) accommodation situated on the front side of the house?

Whether: her the finding of the lower appellate Court, reversing a the finding of the trial Court on the question of genuine necessity is liable to be set aside, as the reversal process on irrelevant considerations?

As per pleadings of the parties, suit accommodation situated at Jagdalpur was given on rent by Vinayak Das Patjoshi, father of the appellants to the respondent for non - residential purpose. On the ground of bona fide need for starting the office of advocate of appellant Dineshchandra Joshi, suit for eviction was filed before 2nd Civil Judge Class - II, Jagdalpur. The present respondent has denied the allegation and has pleaded that the appellants are in possession of suitable alternative accommodation for running the office of advocate, therefore, they are not bona fide need of suit accommodation for non - residential purpose. After providing opportunity of hearing to the parties, learned Additional Civil Judge, Class -I, Jagdalpur has decreed the suit which was challenged before the lower appellate Court and vide judgement and decree impugned, learned lower appellate Court has reversed the judgement and decree of the trial Court on the ground that the appellants have not specifically pleaded and proved that the accommodation situated in the back side of suit accommodation was not sufficient to fulfill the requirement.

I have heard learned counsel for the parties, perused the judgement and decree impugned, judgement and decree of the trail court and records of the Courts below.

Learned counsel for the appellants vehemently argued that with a view to prove the specific allegation made in written statement and to support the defence, reason best known to the party the respondent has not examined himself or any witness, therefore, only documentary and oral evidence of the appellants are remained for consideration. Learned Counsel further argued that the appellants have examined Dinesh Joshi (PW-2) for whose bona fide need the appellants have prayed eviction of the respondent from suit accommodation who has categorically deposed that he is running business of advocate. He or the other appellants are not having any suitable alternative accommodation for business at Jadgalpur. In para 7 of his cross examination he has deposed that at present he is residing in the back side of the suit accommodation since last two and half years which shows that the plaintiffs are not in possession of suitable alternative accommodation to fulfill the need for non - residential purpose.

Learned Counsel placed reliance in the matter of Prem Narayan Barchhiha Vs. Hakimuddin Saifi, in which the Supreme Court has held that in case of suit for eviction, it is not incumbent upon the landlord to disclose that he is in possession of residential accmmodation and further prove that it is not suitable for non - residential purposes. Landlord cannot be non - suited on such extraneous grounds.

On the other hands, learned counsel for the respondent opposed the appeal and argued that although the respondent has not examined himself or any witness, but evidence of Dinesh Joshi (PW-2) is sufficient to prove the fact that the appellants are in possession of alternative accommodation situated just behind the suit accommodation which is sufficient to run the office of advocate.

As per the pleadings and evidence, the appellants have filed the suit for eviction of suit accommodation of bona fide need for non-residential purpose and such purpose falls under the category of non-residential purpose. As per evidence of Dinesh Joshi (PW-2), residential accommodation was available to him situated behind the suit accommodation which was occupied by him and Banshidar for residential purpose.

Definitely, the appellants are not in possession of suitable alternative accommodation to meet our their need for running the office of advocate, but at the time of filing of suit they were in possession of some accommodation for residential purpose.

As held by the Supreme Court in the matter of Prem Narayan Barchhiha (supra), the appellants were not under obligation to plead and prove that they were in possession of alternative accommodation used for residential purpose which is not suitable for non-residential purpose. The Supreme Court has observed in para 13 in the aforesaid judgment as under:-

13...it follows that the landlord seeking eviction of a tenant from non-residential accommodation on the ground that he required the same for the purpose of continuing or starting his business or that any of his major sons or unmarried daughters, has to prove that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town. It is no part of the obligation of the landlord seeking eviction of a tenant under Clause (f) of Section 12(1) of the Act to aver in his plaint/petition the facts that he is in occupation of residential accommodation and that it is not suitable for non-residential purposes. These facts are not the requirement of clause (f) and are irrelevant to make out a case under that clause. To read such a requirement in the said clause (f) would amount to doing violence to the language of the clause may rewriting the clause which is far beyond the principle of ironout the creases and is clearly impermissible.

Evidence of Dinesh Joshi (PW-2) is sufficient to prove the fact that the appellants were not in possession of suitable alternative accommodation in the back side of the suit accommodation.

Consequently, substantial question of law No. 1 is decided as negative.

While reversing the judgement and decree, learned lower appellate Court has not considered the aforesaid fact that any accommodation used for residential purpose can not be treated as suitable alternative accommodation for non-residential purpose and has decreed the suit on irrelevant considerations.

Consequently, substantial question of law No. 2 is decided as positive.

On the basis of decision of the substantial questions of law formulated for the decision of the appeal, the appeal is allowed. Judgment and decree passed by the lower appellate Court is hereby set aside and judgment and decree passed by the trial Court is hereby restored. The parties shall bear their own cost.

Advocate fee as per schedule.

A decree be drawn accordingly.