Madhya Pradesh High Court
Pooja Collections vs Smt. Kamla Jain on 18 January, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 18th OF JANUARY, 2024
SECOND APPEAL NO. 523 OF 2014
BETWEEN:-
HEERA TRADERS THROUGH ITS
PROPRIETOR,MAHAVIR BADKUL, SON
OF UDAY CHAND BADKUL AGED
ABOUT 54 YEARS, R/O NO.16-B, NEW
MARKET, T.T. NAGAR, BHOPAL (M.P.)
.....APPELLANT
AND
SMT. KAMLA JAIN WIFE OF SHRI
KAMAL KUMAR JAIN AGED ABOUT 72
YEARS, R/O 16-B, NEW MARKET, T.T.
NAGAR, BHOPAL (M.P.) THROUGH
HER POWER OF ATTORNEY: DEEPAK
NAYAK, S/O KAMAL KUMAR JAIN,
AGED ABOUT 36 YEARS, R/O 16-B,
NEW MARKET, T.T. NAGAR, BHOPAL
(M.P.)
....RESPONDENT
AND
SECOND APPEAL NO. 526 OF 2014
BETWEEN:-
POOJA COLLECTIONS, THROUGH
ITS PROPRIETOR, ANIL KUMAR
BADKUL, SON OF UDAY CHAND
BADKUL, AGED ABOUT 54 YEARS,
R/O SHOP NO.16-B, NEW MARKET,
T.T. NAGAR, BHOPAL (M.P.)
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SA-523/14 & SA-526/14
.....APPELLANT
(SMT. SHOBHA MENON - SENIOR ADVOCATE ASSISTED BY SHRI
RAHUL CHOUBEY - ADVOCATES)
AND
SMT. KAMLA JAIN WIFE OF SHRI
KAMAL KUMAR JAIN AGED
ABOUT 72 YEARS, R/O 16-B, NEW
MARKET, T.T. NAGAR, BHOPAL (M.P.)
THROUGH HER POWER OF ATTORNEY:
DEEPAK NAYAK, S/O KAMAL KUMAR
JAIN, AGED ABOUT 36 YEARS, R/O
16-B, NEW MARKET, T.T. NAGAR, BHOPAL (M.P.)
....RESPONDENT
(SHRI AMIT SAHNI AND SHRI PRIYANKUSH JAIN - ADVOCATES)
These appeal(s) coming on for final hearing this day, the
Court passed the following:
JUDGMENT
Although, both the second appeals are arising out of two different civil suits but in both the civil suits landlord is common; building in which disputed shops are situated is common; need for both the shops for plaintiff's son-Deepak Nayak is common; impugned judgment and decree having identical paragraphs, have been delivered on same dates/by same judges; grounds of eviction and arguing advocates as well as arguments are common, therefore, both the second appeals are being decided by this common judgment.
2. Aforementioned second appeal(s) have been preferred by the appellant(s)/tenant(s) challenging judgment and decree dated 25.03.2014 passed by 14th Additional District Judge, Bhopal in RCA No. 119/2013
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SA-523/14 & SA-526/14 and 117/2013 affirming judgment and decree dated 06.03.2013 passed by 13th Civil Judge Class-I, Bhopal in Civil Suit No. 181-A/2009 and 180- A/2009 (respectively) whereby in the respondent/plaintiff's suit for eviction filed on the grounds under section 12(1)(a),(c),(f) & (h) of the M.P. Accommodation Control Act, 1961 (in short 'the Act'), trial Court passed decree of eviction on the grounds under Section 12(1)(f) & (h) of the Act, which in civil appeal filed by appellant(s)/defendant(s) was affirmed.
3. Civil suit No.181-A/09 was filed by plaintiff/landlord for eviction of shop admeasuring 150 sq.ft. against defendant-Heera Traders in which defendant is tenant on rent of Rs.847/- per month with the allegations that defendant paid rent lastly on 06.02.2006 and an amount of Rs.30,492/- is due up to the month of July' 2009; whereas Civil suit No.180-A/09 was filed for eviction of shop admeasuring 100 sq.ft. against defendant-Pooja Collections in which defendant is tenant on rent of Rs.622/- per month with the allegations that defendant paid rent lastly in the month of March' 2006 and an amount of Rs.24,880/- is due up to the month of July' 2009.
4. Along with said allegations, the suit was filed on the grounds under Section 12(1)(a),(c),(f) & (h) of the Act. It is alleged that the plaintiff is in bonafide need of shop(s) situated in New market, Bhopal for her major son Deepak Nayak and there is no other reasonably suitably alternative accommodation in the township of Bhopal. At present, son of plaintiff is doing business in shop no. G-1, Westend Plaza, Bhopal which is 10 km. away from tenanted shop, hence is not suitable for the business. It is alleged that the plaintiff also wants to get the shop reconstructed because there is no gate available in the west direction and for going on the upper floors, the plaintiff has to go from the adjacent shop, in which her
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SA-523/14 & SA-526/14 husband is carrying out business in the name and style "Navrang Saree House". The defendant has also caused nuisance with the plaintiff and her family members. It is alleged that plaintiff is in need of both the shops, which are in possession of tenants - Heera Traders and Pooja Traders. On inter alia allegations, the suit was filed.
5. The defendant(s) appeared and filed written statement(s) and accepting relationship of landlord and tenant contended that no rent is due against them and false plea has been taken by plaintiff regarding arrears of rent. It is contended that no nuisance has been caused by making quarrel with the plaintiff or her family members. It is also contended that plaintiff is not in bonafide need of suit shops for her son Deepak Nayak, who is already doing business in the shop situated in Westend Plaza, Bhopal. It is also contended that plaintiff is having free access to go in the residential part of the building and proposed need for construction of staircase along with the need of business for her son is contrary to the provisions of Section 12(1)(f) and (h) of the Act, hence the plaintiff is not entitled for eviction on the grounds pleaded in plaint.
6. On basis of pleadings, trial Court framed issues and recorded evidence of the parties and upon due consideration of the same, decreed the suit on the grounds under Sections 12(1)(f) and (h) of the Act vide judgment and decree dated 06.03.2013, which upon filing civil appeal by defendant(s)/tenant(s), the same has been affirmed vide impugned judgment and decree dated 25.03.2014.
7. Challenging judgment and decree passed by Courts below, second appeal(s) have been filed by both the defendant(s)/tenant(s) which were admitted on 16.09.2016 on the following common substantial questions of law:-
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SA-523/14 & SA-526/14
"(i) Whether the Courts below erred in passing the decree for eviction under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 in the facts and circumstances of the case ?
(ii) Whether the Courts below erred in passing the decree for eviction under Section 12(1)(h) of the M.P. Accommodation Control Act, 1961 in the facts and circumstances of the case ?"
8. Learned Senior counsel for the appellant(s)/defendant(s) submits that suit has been filed by plaintiff for business need of her son Deepak Nayak, who as per pleadings made in para 3-A of the plaint, is already engaged in the business. Learned Courts below beyond the case pleaded in para 3 and 3-A of the plaint, have made out new case of expansion of business for the plaintiff, whereas no such case has been pleaded in para 3 of the plaint and suit has been filed simply for need of plaintiff's son Deepak Nayak for clothe business. She further submits that taking into consideration pleadings of the plaint, trial Court framed issue no.3-4 in respect of bonafide need [i.e.12(1)(f)] and issue no.5 in respect of reconstruction of shop [i.e.12(1)(h)] but while deciding the said issues, Courts below have wrongly clubbed them, which is clear from discussion made by trial Court in paragraphs 29 to 48 and 49 to 57 of its judgment and by first appellate Court in paragraphs 20 onwards. In addition, she further submits that Court cannot mould grounds/pleadings which have not been taken in the plaint. Learned Counsel submits that for holding the need of plaintiff to be bonafide, trial Court has held that disputed shop is required for expansion of family business-Navrang Saree House (para
29); plaintiff wanted to open second counter of Navrang Saree House (para 32); disputed shops are required to construct stairs and for using water tank (para 34-35), there is no entry from the West for approaching Navrang Saree House. She also submits that before passing decree under
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SA-523/14 & SA-526/14 Section 12(1)(h) of the Act, provisions contained in Section 12(7) and 18 of the Act are to be complied with necessarily, without which no decree could have been passed. Placing reliance on decisions of this Court in the case of Damodar Sharma and another vs. Nandram Deviram AIR 1960 MP 345 (FB); and T.R. Sah s/o Doulatram Sah vs. Kundan Kaur wd/o Sardar Sadhusingh 2006 (1) MPLJ 41 (DB) she submits that both the grounds cannot exist/go together. With the aforesaid submissions, learned Senior counsel prays for deciding both the substantial questions of law in favour of appellant(s) as well as for dismissal of suit in toto.
9. Learned counsel for the respondent/plaintiff/landlord supports the impugned judgment and decree passed by Courts below and submits that there is no illegality in the judgment and decree of eviction passed on the grounds under Section 12(1)(f) and (h) of the Act. He further submits that in fact, sufficient pleadings to pass decree on the ground under Section 12(1)(h) of the Act have not been taken in the plaint and while seeking decree of eviction on the ground under Section 12(1)(f) of the Act, additional plea of making necessary reconstruction has been taken and taking into consideration the same, Courts below have concurrently decreed the suit under Section 12(1)(f) and (h) of the Act and in view of decree of eviction passed under Section 12(1)(f) of the Act, question of passing of decree on the ground under Section 12(1)(h) of the Act has lost its significance. In support of his submissions, he placed reliance on decisions in the case of Ramniklal Pitambardas Mehta vs. Indradaman Amratlal Sheth AIR 1964 SC 1676; Radhey Shyam vs. Kalyan Mal AIR 1985 SC 139; Gurvachan Kaur and others vs. Salikram (dead) through LRS. (2010) 15 SCC 530; Babu Khan vs. Dr. R.D.S. Ahluwalia 2003(3) MPLJ 69; and T.R. Sah s/o Doulatram Sah vs. Kundan Kaur wd/o Sardar
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SA-523/14 & SA-526/14 Sadhusingh 2006(1) MPLJ 41. With the aforesaid submissions, he prays for dismissal of both the second appeals.
10. Heard learned counsel for the parties and perused the record.
11. For appreciating the arguments of learned Counsel(s) for the parties, provisions contained in Section 12(1)(f) and (h) as well as in Section 12(7) and 18 of the Act are quoted as under:-
"12. Restriction on eviction of tenants.- (1) Notwithstanding anything to the contrary contained in any other 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:-
(a) to (e) *****
(f) that the accommodation let for non-residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably non-residential accommodation of his own in his occupation in the city or town concerned;
(g) *****
(h) that the accommodation is required bonafide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or re-building or alterations cannot be carried out without the accommodation being vacated;
(i) to (p) ***** (2) to (6) ***** (7) No order for the eviction of a tenant shall be made on the ground specified in clause (h) of sub-Section (1), unless the Court is satisfied that the proposed reconstruction will not radically alter the purpose for which the accommodation was let or that radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord.
(8) to (11) *****
13. to 17. *****
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SA-523/14 & SA-526/14
18. Recovery of possession for repairs and re-building and re-entry. - (1) In making any order on the grounds specified in clause (g) or clause (h) of sub-Section (1) of Section 12, the Court shall ascertain from the tenant whether he elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted, and, if the tenant so elects, shall record the fact of the election in the order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re-building, as the case may be. (2) If the tenant delivers possession on or before the date specified in the order, the landlord shall, on the completion of the work of repairs or building or re-building place the tenant in occupation of the accommodation or part thereof, as the case may be, within one month of the completion of such work. (3) If, after the tenant has delivered possession on or before the date specified in the order, the landlord fails to commence the work of repairs or building or re-building within one month of the specified date or fails to complete the work in a reasonable time or having completed the work, fails to place the tenant in occupation of the accommodation in accordance with sub-section (2), the Court may, on an application made to it in this behalf by the tenant within such time as may be prescribed, order the landlord to place the tenant in occupation of the accommodation or part thereof or to pay to the tenant such compensation as the Court thinks fit."
12. The question in the present case, which has been raised and argued by learned counsel for the parties, has already been answered, after having considered all the previous decisions, by Division Bench of this Court, in the case of T.R. Sah s/o Doulatram Sah (supra), by holding as under :-
"10. It is evident from the decisions of the Supreme Court that the ground of eviction under Section 12(1)(e) or (f) on the one hand and ground of eviction under Section 12(1)(g) or (h) on the other, are mutually exclusive with separate rights and obligations.
10.1. Many a times, the landlords in their anxiety to get decree for eviction, or on wrong advice, tend to raise as many grounds as possible. In several cases, where they want to occupy the premises for their own use and for that purpose if they want to demolish the existing building and construct a new building before occupying the same, instead of filing the suit only under ground (e) or
(f), they may file the suit under ground (g) or (h) also in addition to ground (e) or (f). They over-look the fact that where the ground of eviction is need for self occupation, the averments relating demolition and reconstruction are only
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SA-523/14 & SA-526/14 a step in fulfillment of their need to occupy the premises, and such averments form an integral part of the averments relating to bona fide requirement for own use and there is no need to invoke ground (g) or (h). In such cases, if the bona fide requirement pleaded under Clause (e) or (f) is made out by the landlord, the ground under (g) and (h) even if mentioned would be redundant and shall have to be ignored. To reject the case relating to a genuine and relevant ground, merely because a redundant ground is also mentioned, is neither just or logical.
10.2. It is also possible that landlords in their anxiety, or on advice, after pleading the ground under (e) or (f), may alternatively and independently plead a ground under Clause (g) or (h). In that event, if the prayer under Clause (e) or (f) is allowed, then the ground under Clause (g) or (h) will not survive for consideration. On the other hand, if the ground under Clause
(e) or (f) should fail, the grounds under Clause (g) or (h) will survive and will have to be considered separately. Therefore, whenever a landlord pleads a case for eviction under Clause (e) or (f) and also pleads a specific alternative case for eviction under Clause (g) or (h), the ground under Clause (g) of (h) will have to be considered only in the event of ground of eviction under Clause (e) or (f) being rejected. Under no circumstance, the landlord can be non-suited merely on the ground he has invoked a ground under Clause (g)/(h) in addition to the ground under Clause (e)/(f). We therefore overrule the decision of the learned Single Judge in Parmeshwari Devi.
11. We may also notice, at this juncture, that the question came-up recently be- fore a learned Single Judge in Babukhan v. Dr. R.D.S. Ahluwalia, 2003 (3) MPLJ 69. The learned Single Judge after referring to the decision of the Su- preme Court in Modem Tailoring Hall, held that the decision in Parmeshwari Devi is no longer good law.
Conclusion
12. The answer of the question of law formed in the order of reference is as under:--
When a suit is filed by a landlord under section 12(1)(e) and 12(1)(h), plead- ing that he requires the accommodation for his own use and also states that he wants to demolish and reconstruct the building, and he establishes a case for eviction under section 12(1)(e), he will be entitled to an order under section 12(1)(e) and the averments relating to demolition and reconstruction will be construed as a part of ground under section 12(1)(e). In such an event, it will be immaterial whether he demolishes the building or not. When a Court grants an eviction under Clause (e), it shall dispose of the claim under
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SA-523/14 & SA-526/14 Clause (h) as having become infructuous or rendered redundant. When granting a decree under section 12(1)(e), the question of applying section 12(7) or section 18 does not arise. On the other hand if the ground under sec- tion 12(1)(e) is rejected, then the Court may consider the ground under section 12(1)(h) independently subject to section 12(7) and section 18.
13. The question of law on which the petition was admitted, is answered thus:
Mere invoking the ground under section 12(1)(h) or filing the case under sec- tion 12(1)(h) in addition to the ground under section 12(1)(e) will not invalid- ate the claim for eviction under Clause 12(1)(e). Where the bona fide re- quirement of the landlord under section 12(1)(e) of the Act is proved, the claim can be allowed under section 12(1)(e), ignoring the ground under section 12(1)(h).
14. In this case, as already noticed, the plaint did not even refer to Clause (g) or (h) in the suit. After pleading that he required the premises bona fide for occupation of himself and his family, he also stated that the premises was in a damaged condition and required repairs. Therefore, the averments relating to dismantling the roof and reconstructed it is not an independent ground but a part of the ground under Clause (e). As a consequence, the concurrent finding that the landlord has made out a case for eviction under Section 12(1)(e) of the Act does not call for interference. The second appeal is therefore, dismissed with costs."
13. From perusal of paragraphs 3, 3A, 4 and 5 of the plaint, it is clear that in fact the suit has been filed for business need of plaintiff's son Deepak Nayak, adjacent to which husband of plaintiff is already carrying out business in the name and style 'Navrang Saree House'. So far as requirement of reconstruction is concerned, the plaintiff has pleaded that she wants to reconstruct the shop for making better use of already situated house and to make it more comfortable to go on upper floor(s).
14. From discussion made in paragraphs 29 to 57 of judgment of trial Court and paragraphs 20 to 27 of judgment of first appellate Court, it is clear that Courts below have taken into consideration all the aspects of the matter in detail and have come to conclusion that the plaintiff is in bonafide need of the shop(s) in question for business of her son Deepak
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SA-523/14 & SA-526/14 Nayak as well as for construction of staircase by making alteration/ reconstruction of shop(s) in question for using upper floor(s) of the building, in which she is residing with her family members.
15. While deciding issue no.3 & 4, Courts below have taken into consideration evidence of the parties in detail and have come to conclusion that plaintiff is in bonafide need of the shop(s) in question for her son and there is no other reasonably suitable alternative accommodation available in the township of Bhopal. Although while passing judgment and decree by Courts below, some observations have been made regarding expansion of existing business, need of plaintiff's husband and shops are required for construction of staircase, but in fact decree of eviction has been passed holding the need of son of plaintiff to be bonafide for both the shops, therefore, such observations have no significance.
16. It is pertinent to mention here that alternative accommodation allegedly available with the plaintiff in the Westend Plaza of Bhopal was offered to the defendant(s) but it was denied by them, therefore, it can very well be said that except the accommodation available in the building of Westend Plaza, Bhopal, there is no other reasonably suitable accommodation with the plaintiff and the accommodation which has already been refused by the defendant(s), cannot be said to be reasonably suitable alternative accommodation for business need of plaintiff's son.
17. In the case of Kishore Singh vs. Satish Kumar Singhvi 2017(3) JLJ 375 a coordinate Bench of this Court has relied upon decision of Hon'ble Supreme Court in the case of Ragavendra Kumar vs. Firm Prem Machinary and Company AIR 2000 SC 534, and held that the findings
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SA-523/14 & SA-526/14 recorded on the question of bonafide need do not give rise to any substantial question of law.
18. As has been held in the case of T.R. Sah s/o Doulatram Sah (supra), in my considered opinion upon passing decree of eviction on the ground under Section 12(1)(f) of the Act, prayer of eviction on the ground under Section 12(1)(h) of the Act has lost its importance/significance having rendered infructuous. Although learned Courts below have decreed the suit of eviction on the ground under Section 12(1)(h) of the Act also, but it has no adverse effect on the decree of eviction passed on the ground of bonafide need under Section 12(1)(f) of the Act.
19. So far as the question of making compliance of the provisions contained in section 12(7) and 18 of the Act is concerned, Division Bench of this Court in the case of T.R. Sah (supra) has held that when a decree of eviction has been passed under Section 12(1)(f) of the Act, then upon passing decree on the ground under Section 12(1)(h) of the Act, provisions of Section 12(7) and 18 of the Act are not required to be complied with and a coordinate Bench of this Court had also taken same view in the case of Mohammad Sharif vs. Kesharsingh Hirasingh Thakur 1999 (2) MPLJ 184. Relevant paragraphs of which are quoted as under :-
"10. In Ramniklal Pitambardas Mehta's case (supra) which was under Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), eviction was sought under section 13(1)(g) and 13(1)(hh) of Bombay Act. Section 13(1)(g) and 13(1)(hh) of the Bombay Act substantially correspondent to sections 12(1)(f) and 12(1)(g) of the `Act' respectively. The Supreme Court, in that case, has observed as follows :-
"We are therefore of opinion that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover posses- sion of it from tenant in view of the provisions of sub-clause (g) of section 13(1) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making the necessary alterations.
The provisions of clause (hh) cannot possibly apply to the case where a land- lord 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
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SA-523/14 & SA-526/14 provisions of Clause (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."
11. Similarly, in Radhey Shyam's case (supra), the Supreme Court relying on the above decision of Ramniklal Pitambardas Mehta, has clarified and held 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 tenants under section 12(1)(f) of the `Act'. The mere fact that section 12(1)(h) of the `Act' is also mentioned in the orders of Courts below, does not make the order of eviction purely one under that section, for the main ground of eviction is bona fide personal requirement of the landlord.
12. In Kishorekant's case (supra), this Court has ruled that when the tenanted accom- modation is required by the landlord for residence and for starting the business, there was no question of making any direction under section 18 of the `Act'.
13. The decree of eviction granted in favour of the landlord upholding his bona fide requirement for personal need would stand nullified and rendered meaningless if dir- ections of re-entry in the suit-premises of the defendant/tenant are given under section 18 of the `Act'. Therefore, directions under section 18 of the `Act' for re-entry can reasonably be given only when the decree was under section 12(1)(g) or under section 12(1)(h) of the `Act'. Therefore, in the instant case, since decree for eviction of the appellants/tenants was granted accepting the grant (ground ?) of bona fide require- ment of the respondent/plaintiff; there was no question of giving directions of re-entry of the appellants/tenants under section 18 of the `Act'."
20. As such, in view of the aforesaid discussion, it can be said that the substantial question of law no.1 & 2 framed by this Court, in fact are questions of fact and are not substantial questions of law.
21. Even upon perusal of entire record, this Court does not find any illegality or perversity in the concurrent judgment and decree of eviction passed by Courts below on the grounds under section 12(1)(f) and (h) of the Act.
22. Resultantly, both the second appeal(s) fail and are hereby dismissed. However, no order as to the costs.
23. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL) JUDGE pb Digitally signed by PRASHANT BAGJILEWALE Date: 2024.01.23 11:24:29 +05'30' - 14 - SA-523/14 & SA-526/14
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