Madhya Pradesh High Court
Draupadi Bai W/O Ganpatrao Choudhary ... vs Prem Singh Jagannath Rathore on 31 August, 1990
Equivalent citations: 1991(0)MPLJ426
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
1. A suit filed by the plaintiff/appellant seeking ejectment of the defendant/respondent from the suit accommodation, residential one, on the grounds available under clauses (a) and (e) of Sub-section (1) of Section 12 of the M. P. Accommodation Control Act, 1961, (the 'Act', for short), having been dismissed by the Courts below; the present appeal has been filed.
2. The question on which the appeal was admitted for hearing on 7-4-1984 has been recast during course of hearing by enlarging its scope and hence the appeal has been heard on the following question : -
"Whether on the facts and in the circumstances of the case, the decrees of the respondent on the ground of genuine requirement of the plaintiff for residence of her members of the family are perverse and liable to be set aside."
3. The suit was filed by one Avantika Bai, who having expired during the pendency of this appeal, her legal representatives have been brought on record. Ground under clause (a) has been negatived by the Courts below and the learned counsel for the appellants does not dispute that finding. The facts to be stated hereinafter shall be confined to the ground under clause (e).
4. It is not disputed that the house owned by the plaintiff is double storeyed. On the ground floor, a major portion is occupied by the defendant/respondent while two rooms are occupied by two different other tenants. On the first floor there are only two rooms which are in possession of the appellant. The family of the appellant consists of one widowed daughter-in-law serving as a Nurse at Chanderi, two grand-sons of whom one resides with Draupadibai, a grand-daughter-in-law and her children. The plaintiff has three daughters, all married.
5. The case as emerging from the plaint filed by the plaintiff at the age of 85 is that on account of old age residence on the upper floor was not suitable for the plaintiff, young children in the family feel suffocated being confined on upper floor where they could not so play and be active as they could do on the ground floor; the widowed daughter-in-law posted at Chanderi, aged 53 years, would retire and shift to Gwalior and even before that she was trying to be posted at Gwalior which posting and transfer was postponed for paucity of accommodation. The, grand-son (son of the widowed daughter-in-law) aged 22, also wanted to shift to Gwalior, leaving education, so as to gainfully work at Gwalior and assist the family; the grand-son being of marriageable age was likely to be married in near future. On all the facts the plaintiff pleaded that the accommodation occupied by the tenant was required by the plaintiff to satisfy her additional requirement which was bona fide and for which purpose she was not possessed of any other accommodation. In the written statement, the facts were denied, but without raising any other special plea. It may be stated here itself that it was never the case of the defendant/respondent that the plaintiff was possessed of any other accommodation or that she had at any time relet out any other accommodation which might have come into her possession.
6. The Courts below have negatived the case of the plaintiff by holding that the plaintiff was not proved to be so sick or infirm as might not be able to live comfortably on the upper floor of the house. As to other facts, the Courts below formed an opinion that the case could be termed to be one of future need only and hence could not be considered.
7. The learned counsel for the plaintiff/appellant has vehemently submitted that gross injustice has been done to her because of the Courts below having misconstrued the concept about the felt-need in the context of bona fide requirement. He submits that the gross error of law committed by the Courts below is liable to be corrected by this Court in exercise of its second appellate jurisdiction.
8. The phraseology used in Section 12(l)(e) of the Act indicates that the Legislature intended to provide 'requirement' in praesenti as a ground for eviction. This has been interpreted to mean that 'need' has to be a 'felt need' in contradistinction with a 'need in contemplation'. If the need is dependent on an event which is sure to happen though it has not yet happened, but if on account of its proximity of time with date of filing of the suit and if on account of certainty its existence can be perceptibly felt, then it is a 'felt need' or a 'need in praesenti' and not a 'need in future'.
9. In Hemraj v. Rajnath, 1980 MPRCJ 65, this Court observed that if 'felt need' was to be misinterpreted as a 'need in futuro', the provision for eviction on the ground of bona fide need would stand repealed. Several cases of different High Courts were noticed therein.
10. In Shyamsunder v. Krishna Chandra, 1981 MPWN 166, need of accommodation felt on account of marriage of a boy, not yet married but whose SAGAI ceremony was performed, was held to be a need in praesenti.
11. In A. P. Madhavan v. M. P. Ram Chandra, 1970 RCJ 479, V. R. Krishna Iyer, J. (as he then was) spoke as under :-
"The concept of bona fide need cannot be narrowly understood or pedantically interpreted but applied in a pragmatic way. It is not necessary that there should be a current urgent need. It is enough if it is reasonably likely to arise in the near future. Knowing that between the institution of the petition and the ultimate order from the Apex Court years pass, it will be as good as repealing the provisions for eviction on the ground of bona fide need if Courts insist on landlord's proving a present need as against prospective but certain need. Else when the need confronts him the building will be years away from him. There is a discretion vested in the Court to depart from the general rule that the rights of parties must be determined as on the date of the institution of the action in justifiable circumstances, provided such depature will not cause injustice."
12. In J. G. Kohli v. Financial Commissioner, Haryana and Anr., 1975 RCJ 689, the need of a Government servant applying for ejectment of his tenant anticipating his requirement on account of his impending retirement was held to be sustainable. It was observed : -
"It is not the requirement of the law that the landlord's need must be immediate and an existing one on the very date of the application for ejectment. Indeed he is entitled to anticipate his requirement in a reasonable foreseeable future."
13. In Ramsingh v. Sagarchand, 1978 (2) RCJ 70, where R. S. Pathak, C. J. (as his Lordship then was) spoke for the Court: - "the landlord is entitled to anticipate his requirement arising in reasonably foreseeable future."
14. I find myself in respectful agreement with the view expressed in all the cases referred to hereinabove. When the widowed daughter-in-law serving as a Nurse and posted for the time being at Chanderi was sure to retire within a reasonable time and had already made up her mind in coming to Gwalior so as to reside with her mother-in-law along with her son who could better gain at Gwalior, it must be held that the need had in fact arisen and an inquiry into the same could not have been postponed until the event had in fact occurred. It is also noteworthy that in the present case, the contemplated event did occur during the pendency of these proceedings, with the daughter-in-law having retired as only a few months were left for her retirement on 12-11-1981 when plaintiff was examined in Court.
15. Having gone through the record and having considered the respective submissions of the learned counsel for the parties, this Court is convinced that the findings recorded by the Courts below are perverse based on erroneous application of principles of law and hence are liable to be set aside by this Court. What was considered by the Courts below to be a need in future was not so; it was a need in pracsenti, a felt need. Even if it would have been held for a moment that the daughter-in-law was not going to shift from Chanderi to Gwalior, even then looking to the little accommodation in possession of the appellant wherein she was required to squeeze herself with her family members to make a living, a case of genuine need for the accommodation in possession of the tenant was certainly made out.
16. While judicially examining the cases of genuine requirement, the Court cannot lose sight of the observations of their Lordships in Kewal Singh v. Mst. Lajwanti, 1980 MPRCJ 193, viz. : -
"While the rent control legislation has given a number of facilities to the tenants it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For instance one of the grounds for eviction which is contained in almost all the Rent Control Acts in the country is the question on landlord's bona fide personal necessity. The concept of bona fide, necessity should be meaningfully construed so as to make the relief granted to the landlord real practical."
17. The term 'bona fide' or 'genuine' speaks of the state of mind of the landlord. As held by the Full Bench of this Court in Damodar Sharma v. Nandram Deviram, 1960 MPLJ 925 = AIR 1960 M.P. 345, "genuine" means that which proceeds from its reputed source, sincere and not false, fictitious, simulated or spurious. It is also well settled that so long as the landlord acts in a reasonable manner projecting the case of his need before the Court and if the need cannot be termed as mala fide, tainted, device for setting at naught the purpose of the law, it has to be respected.
18. For the foregoing reasons, this Court is unhesitatingly of the opinion that the landlord/plaintiff had fully succeeded in making out her case Under Section 12(l)(e) of the Act. The Courts below acted illegally with perversity in denying decree of ejectment of the tenant/respondent.
19. The appeal is allowed. In supersession of the judgment and decree of the Courts below, it is directed that the defendant/respondent shall be evicted from the suit accommodation placing the plaintiff/appellant in possession thereof. The plaintiff/appellant shall also be entitled to rent at the rate of Rs. 70/- per month from the date of the suit (i.e. 27-6-1980) till ejectment, subject to adjustment for the rent deposited during the course of these proceedings. The defendant/respondent shall bear his own costs and also pay that of the plaintiff/appellant throughout. Counsel fee Rs. 100/-, if precertified
20. To relieve the defendant/respondent from the peril of sudden eviction, it is directed that in the event of the defendant/respondent paying the entire money-part of the decree on or before 1-2-1990 and giving an undertaking that he would hand over peaceful possession to the plaintiff/appellant on expiry of the period limited hereby and also pay rent falling due hereinafter, the decree for ejectment shall not be available for execution until 31-12-1990.