Madhya Pradesh High Court
Radheshyam vs Ramakant (Deceased) Through L.Rs. on 25 March, 2004
Equivalent citations: 2004(3)MPHT76
Author: S.K. Seth
Bench: S.K. Seth
JUDGMENT S.K. Seth, J.
1. This second appeal, at the instance of appellant/tenant, is directed against the judgment and decree in First Appeal No. 13 of 2000, decided on 20-8-2001 by the XIII Additional District Judge to the Court of District Judge, Indore. By the impugned judgment & decree, the judgment and decree passed by the Trial Court in C.S. No. 43-A of 1994 was reversed.
2. Respondent/plaintiff instituted the eviction suit against the appellant/defendant on allegation, that former is owner of the house bearing No. 128 (old) situated in Subhash Nagar, Indore and plaintiff let out two rooms on the ground floor for residential purposes to the appellant on payment of Rs. 85/- as monthly rent. Tenancy was monthly, starting from 1st of every English calendar month. Initially plaintiff claimed eviction under Section 12 (1) (e) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'Act'). Plaintiff set up the bona fide need of the suit accommodation not only for himself but also members of his family. It was alleged that looking to growing family, the tenanted accommodation in possession of the plaintiff/respondent was not, sufficient to meet the requirement. It was also pleaded that the plaintiff/respondent needed the suit accommodation on his personal health ground and there was no other suitable accommodation of his own in the city of Indore. Thus he prayed for decree for eviction under Section 12 (1) (e) of the Act. During the pendency of suit, by way of amendment plaintiff also sought eviction under Section 12 (1) (c) & 12 (1) (d) of the Act on allegations that appellant and family members created nuisance and that suit accommodation was sub-let and remained unused without any reasonable cause for which it was let out for continuous period of six months since June, 1993.
3. Appellant/defendant denied the case set up by the plaintiff/respondent and submitted that the bona fide need of the plaintiff and his family members was sham need. It was set up to extract higher monthly rent. It was also alleged that during the pendency of suit, respondent/plaintiff obtained vacant possession of other portions on the house that were let out to other tenant, therefore, need if any, stands satisfied. As regards the other grounds for eviction, their existence was denied. Thus, according to defendant, plaintiff was not entitled to eviction decree on any of the count and he prayed for the dismissal of the suit with costs throughout.
4. Trial Court on the basis of material pleadings and the evidence led by the parties, came to conclusion that no eviction decree could be passed against the appellant either under Section 12 (1) (c), (d) and (e) of the Act as in the opinion of the learned Trial Court, none the grounds for eviction were made out by the plaintiff/respondent. Although Trial Court found that plaintiff/respondent had no reasonably suitable accommodation of his own other than the suit house, but dismissed the suit holding that need set up was neither genuine nor objective. It also held that plaintiff could not establish that the suit accommodation was required on the health ground. Other factor, which prevailed upon the Trial Court was that during the pendency of suit, plaintiff/respondent had obtained vacant possession of other rooms in suit house therefore, his need had come to end. Thus, Trial Court even after the remand dismissed the suit. Being aggrieved by the dismissal of the suit, plaintiff/respondent preferred appeal before the Lower Appellate Court.
5. Plaintiff/respondent challenged the judgment and decree before the Lower Appellate Court. While allowing the appeal only on the ground of bona fide need, Lower Appellate Court also found that no other ground for eviction was made by the plaintiff/respondent. Thus, appeal preferred by the plaintiff/respondent was allowed and a decree for eviction was passed under Section 12 (1) (e) of the Act holding that plaintiff had proved and established not only his need but also the need of growing family and directed the tenant to vacate the premises within two months.
6. This appeal was admitted for final hearing on 24-2002 on the following substantial question of law :--
"Whether the finding of the Ist Appellate Court on the point of genuine requirement of the suit accommodation for the residence of respondent/plaintiff, is contrary to the evidence available on record and perverse ?"
7. I have heard Shri A. Salim, learned Counsel for the appellant and Shri Yashpal Rathor for respondent at length and also perused and considered the evidence on record and other relevant material available on record.
8. The only point for consideration is whether the plaintiff/respondent was able to establish the bona fide need so as to obtain a decree for eviction against the appellant/defendant. Learned Counsel appearing for tenant/appellant placing reliance on the decisions of the Supreme Court in Hasmat Rai and Anr. v. Raghunath Prasad, reported in 1981 MPLJ 610; Anant Gadre v. Gomlibai and Ors., reported in 1983 JLJ 265; Chhaganlal v. Jagannath, reported in 1981(1) MPWN SN 243; Chhotelal v. Narmada Prasad Soni, reported in 1983 MPWN SN 277 and Ramswarup and Anr. v. Prem Narain Verma, reported in 1973 MPLJ 505, submitted that the respondent has failed to establish that the need was bona fide and objective. Shri Salim, therefore, prayed that appeal deserves to be allowed and the suit must fail. On the other hand Shri Yashpal Rathore, placed reliance on the decision in Ishwari Bai and Anr. v. Bhuromal and Ors., reported in 1996 MPACJ 43; Sabir Bhai v. Shabbir Mohammad, reported in 1998 MPACJ 88 and Ramakant Mishra v. Devendra Jain, reported in 1998 MPACJ 191, supported the impugned judgment and decree and submitted that no interference is warranted with the impugned judgment and decree.
9. Shri Salim, learned Counsel for appellant invited attention of this Court to the statement of P.W. 1 plaintiff himself. He also highlighted the fact that during the pendency of the litigation three other tenants had vacated the rooms in the suit premises and one of the room was re-let. He further criticized the judgment of the Lower Appellate Court on the ground that the Lower Appellate Court did not assess the bona fide need properly in the light of the evidence that has come on record.
10. Plaintiff had filed the suit for eviction alleging that he along with his family members was residing as a tenant in another accommodation. His landlord was pressing the plaintiff to vacate the premises. He, therefore, filed the eviction suit not only setting up his personal need but also the need of the family members. During the pendency of the suit as and when possession of other rooms that were let out to other tenants was delivered to the plaintiff/respondent, the plaintiff and his family members occupied those rooms. From the plaintiff's evidence it is clear that during the pendency of the suit plaintiff's sons got married. They have their own growing children. From the evidence of the plaintiff and his son Pradeep Joshi, it is clear that the plaintiff's family had grown with the marriage of sons. From the record it is clear that the plaintiff had not let out any of the rooms that were vacated by his other tenants from time to time. From the evidence of plaintiff, it is also clear that he wanted the rooms on the ground floor and in occupation of the appellant looking to his frail health and especially his need to go to the toilet on account of physical requirements due to growing age factor. Thus, in the considered opinion of this Court, plaintiff had established that the rooms in occupation of the defendant/appellant were bona fidely required by the plaintiff not only for himself but also for the growing members of the family. It is well established now that if the plaintiff had pleaded that the premises are needed for his residence and the residence of the sons then after the death of the plaintiff plea does not come to an end. The Trial Court non-suited the plaintiff on the flimsy grounds that can not be sustained in law. Finding of the Trial Court that the major sons of plaintiff can live with their family on the first floor in two rooms and they can use out of the two rooms as drawing room and one room would be available to the plaintiff is undue restrictions on the rights of plaintiff/respondent to enjoy his property. It is well established that once a bona fide need is established then it is for the landlord to decide how and in what manner he should live. Landlord is the best judge of his requirement and no Court or tenant can dictate to the landlord as to how to enjoy functionally his property. Thus, I find that the contentions of learned Counsel for appellant. are devoid of any substance and the reliance placed on the decision as mentioned hereinabove are of no avail to the appellant. On the other hand there is force and merit in the submissions of learned Counsel for plaintiff/respondent. The judgment of the Lower Appellate Court is without flaw and fault. The Lower Appellate Court recorded the finding based on the proper appreciation of evidence and it does not give rise to any substantial question of law that can appropriately be gone into a second appeal. The substantial question of law that was framed was not in fact, a substantial question of law. In this connection it is apposite to refer to the decision of Supreme Court in Santosh Hazari v. Purushottam Tiwari, reported in AIR 2001 SC 965, wherein it was held as under :--
"14. A point of law which admits of no two opinions may be a proposition of law but can not be a substantial question of law. To be 'substantial', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of parties before it are concerned."
11. The findings recorded by the Courts below arc based upon proper appreciation of evidence on record. No material evidence has been overlooked nor any inadmissible evidence has been considered to come to such findings and as such there is no scope for interference in such findings of fact. See Ishwar Das Jain v. Sohanlal (AIR 2000 SC 426). It is not a case of misreading of evidence leading to miscarriage of justice. Neither it is a case of no evidence nor are the findings perverse to invite the interference by this Court. Hence, such findings being unassailable are confirmed in this second appeal.
12. In view of foregoing discussion, this appeal must fail. As the appellant is in possession of two rooms on the ground floor of suit accommodation for residence, therefore, he is given two months time from today to vacate the tenanted premises and handover the vacant and peaceful possession to plaintiff/respondent together with entire arrears of rent and costs as incurred throughout. With the aforesaid directions this is dismissed with costs throughout. Counsel's fee Rs. 1000/-, if certified.