Madhya Pradesh High Court
M/S Gala Trading Company vs Laxmi Bai Gupta W/O Late Mannulal Gupta ... on 6 February, 2018
(1)
Second Appeal No. 490/2016
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Single Bench : Hon'ble Shri Justice J.K.Maheshwari)
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Second Appeal No. 490/2016
M/s Gala Trading Company through LRs
-Vs-
Laxmi Bai Gupta (deceased) through LRs
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Shri K.S.Wadhwa, Advocate for the appellants/defendants.
Shri R.P. Khare, Advocate for the respondents/plaintiffs.
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JUDGMENT
Jabalpur, Dated : 6.2.2018
1. This appeal under Section 100 of the Code of Civil Procedure has been filed assailing the judgment and decree dated 7.4.2016 passed by Eighteenth Additional District Judge, Jabalpur in Civil Appeal No. 4-A/2013 confirming the judgment and decree dated 4.1.2013 passed by Fourteenth Civil Judge Class II, Jabalpur in Civil Suit No. 7-A/2009.
2. The undisputed facts of this case are, plaintiff Laxmi Bai Gupta died during the pendency of the suit. The suit was filed by her on the ground of bonafide need of her son Sunil Kumar Gupta. It is also not in dispute that the plaintiffs and defendants are having landlord-tenant relationship and the suit shop was let- out for the commercial use i.e. for non residential purpose. (2) Second Appeal No. 490/2016
3. Plaintiffs have pleaded that House Nos. 179 and 181 are situated at Tularam Chowk, Ganjipura, Jabalpur which belong to Laxmi Bai Gupta. The plaintiffs who are the sons and daughters of the deceased became the owners thereof. The suit shop was let-out to the defendants executing a rent agreement dated 23.9.1976 shown in red colour in the attached map at the rent of Rs.500/- per month. The defendants are running Hardware shop in the said premises. On 23.9.1986, the said agreement was terminated but the vacant possession of the suit premises was not handed over to the landlord. However, pleading the bonafide need of her son Sunil Kumar Gupta, who is said to be unemployed, to start the business of General Store, the suit was filed inter alia contending that no other reasonably suitable alternative accommodation is available to him in the township of Jabalpur.
4. During pendency of the suit, subsequent development has taken place regarding purchase of House No. 325 situated at Ram Manohar Lohia Ward, Karamchand Chowk, Jabalpur in the names of six persons namely Mahesh Kumar Gupta, Ramesh Kumar Gupta, Chunnilal Gupta, Kailash Gupta, Sunil Gupta and Dileep Gupta. Meaning thereby the house was purchased due to bonafide need of Sunil Kumar Gupta. It is explained in the suit that after purchase of the said house, four shops were (3) Second Appeal No. 490/2016 constructed, which are being occupied by Mahesh Gupta, Kailash Gupta, Dileep Gupta, Rohit Gupta and Mohit Gupta, (Rohit Gupta and Mohit Gupta are sons of Chunni Lal Gupta), therefore, the need as pleaded in the suit has not yet satisfied, however, the suit seeking eviction on the ground of bonafide need was filed.
5. The defendants by filing the written statement inter alia contended that the property was belong to Laxmi Bai Gupta mother. After her death, all her legal heirs have not been joined as party to the proceedings. The tenency has not been denied. It is denied that rent agreement has been terminated on 23.9.1986. It is further stated that the defendants are continued as tenants in the suit premises and depositing the rent regularly. The plaintiffs were not willing to continue with the suit, therefore, notice was not given.
6. Learned trial Court has framed as many as 12 issues and while recording the finding, it was observed that the plea regarding non-joinder of the parties, is not tenable. Issue Nos. 6 and 7 were framed on the point of bonafide need and not having reasonably suitable alternative accommodation in the city of Jabalpur, which have been decided in favour of the plaintiffs. (4) Second Appeal No. 490/2016 Accordingly, the decree directing eviction, as prayed, has been granted.
7. The findings as recorded by the trial Court has been confirmed by the appellate Court re-appreciating the evidence in the similar terms, however, challenging those concurrent findings of fact on the point of bonafide need and not having reasonably suitable alternative accommodation of his own, this second appeal has been preferred.
8. Learned counsel appearing for the appellants/defendants has strenuously urged that looking to the pleadings as made in Para-3 of the plaint, the fact regarding purchase of House No. 325 in the name of Sunil Kumar Gupta with other brothers is not in dispute. The said shop is also located in the same vicinity, therefore, on acquiring the reasonably suitable alternative accommodation by the plaintiffs, the need may have been satisfied, however, both the Courts below have committed error to decree the suit directing eviction without having any explanation of suitability of the shop purchased by the plaintiff. It is further urged that the plea taken by the plaintiffs that four shops have been constructed, which are being run by the brothers as well as nephews on the accommodation of the plaintiffs is of no substance after purchase of the shop in the (5) Second Appeal No. 490/2016 individual name by Sunil Kumar Gupta. In view of the said submission, it is urged, findings as recorded by the two Courts below on the point of bonafide need and on having reasonably suitable alternative accommodation, are perverse, therefore, this appeal may be admitted for final hearing.
9. On the other hand, learned counsel appearing for the respondents/plaintiffs submits that the finding of bonafide need recorded by the two Courts below is a finding of fact, which cannot be interfered with in the second appeal. Similar is the contention so far as it relates to availability of reasonably suitable alternative accommodation. It is urged, both the Courts below have duly considered the aforesaid aspect while granting the decree of bonafide need, therefore, interference in this appeal is not warranted.
10. After having heard learned counsel appearing for both the parties and on perusal of the facts of this case, it is not in dispute that the suit was filed by Laxmi Bai on 2.3.1990 on the ground of bonafide need of her son Sunil Kumar Gupta to start the business of General Store pleading that no reasonably suitable alternative accommodation is available to him. On 29.9.1998, another house No. 325 situated at Ram Manohar Lohia Ward, Karamchand Chowk, Jabalpur was purchased. It is true that (6) Second Appeal No. 490/2016 House No. 325 was purchased by six sale-deeds (Ex.P-2 to Ex.P-7). Ex. P-7 is the sale-deed executed in the name of Sunil Kumar Gupta, whose need has been pleaded in the suit. Total area which was purchased by him is 23'-6" x 6'-6". The suit shop in which the appellants/defendants are tenants is 19' x 38" to which the need of the plaintiffs has been shown. It is a trite law that the landlord is the best judge to select the accommodation as per his requirement. The tenants or the Court cannot dictate the landlord that which of the premises may be functionally proper to satisfy his need. In this regard guidance can be taken from the judgment of this Court in the case of Radheshyam Versus Ramakant (deceased) through LRs reported in 2004(2) MPLJ 332 and also from the judgment of Supreme Court in the case of Ragavendra Kumar Versus Firm Prem Machinary and Co. reported in AIR 2000 SC 534; Prativa Devi (Smt.) Versus T.V. Krishnan reported in (1996) 5 SCC 353; Maganlal Son of Kishanlal Godha Versus Nanasaheb son of Udhaorao Gadewar reported in (2008) 13 SCC 758, therefore, looking to the premises purchased during pendency of the suit by Sunil Kumar Gupta, is very small and tenanted premises is big. The need was pleaded in the suit looking to the area and choice of the landlord, which is with respect to the suit premises, therefore, it cannot be presumed that the reasonably suitable alternative accommodation is available to the Sunil Kumar Gupta (7) Second Appeal No. 490/2016 to run his business of General Store by subsequent purchase of a small shop in the nearby vicinity. Learned counsel for the appellants/defendants has relied upon Paragraph 18 of the statement of Sunil Kumar Gupta. It is apparent that the house which was purchased by him as well as other brothers was of tenancy of their family. It was purchased in different names during pendency of the suit and occupied by their brothers and they continue to remain in occupation till today. Looking to the area which is purchased by Sunil Kumar Gupta and the area in which the defendants are the tenants for which the bonafide need of the plaintiffs has been shown, it is more than three times. If the suitability of the tenanted shop has been concluded by the Court, such finding do not suffer from any perversity or illegality warranting interference.
11. In addition to the aforesaid, after perusal of the statement of the plaintiffs and other statements as well as the statements of the defendants, it primarily reveals that the need of Sunil Kumar Gupta is there to which defendant has taken the defence that he is also working with his brother Kailash Gupta, which was denied by the plaintiffs. Considering all these evidence, the trial Court as well as the appellate Court recorded the finding on the point of bonafide need. It is to be noted here that the finding recorded by the two Courts below on the point of bonafide need is also a (8) Second Appeal No. 490/2016 finding of fact, which cannot be interfered with until it is based on misreading of the documents or the evidence brought on record and perverse. In this regard, guidance can be taken from the following judgments; Damodar Lal Versus Sohan Devi and others reported in (2016) 3 SCC 78; Syeda Rahimunnisa Versus Malan Bi (Dead) by Legal Representatives and another reported in (2016) 10 SCC 315; Daya Nand Versus Virmo Devi reported in (2017) 13 SCC 292; Dagadabai (Dead) by Legal Representatives Versus Abbas Alias Gulab Rustum Pinjari reported in (2017) 13 SCC 705.
12. In view of the aforesaid discussion, I am satisfied that the finding of fact recorded by the two Courts below regarding bonafide need of Sunil Kumar Gupta requiring the shop in question is justified, therefore, the decree of eviction as granted by the Courts below do not suffer from any perversity or illegality warranting interference.
13. At this stage, learned counsel representing the appellants/defendants prays for time to vacate the suit premises for an year, which is opposed by the other side. In the interest of justice, on considering the rival contentions and relying upon the judgment of the Supreme Court in the matter of Ghisalal M. Agrawal (Dead) through L.Rs. Vs. Rameshwar @ Ramu (9) Second Appeal No. 490/2016 Jawaharlal reported in 2012 (II) MPWN 129, it would be appropriate to grant sometime to the appellants/defendants to vacate the premises. However, it is directed that appellants/defendants shall vacate the suit premises on or before 31/12/2018 subject to compliance of the following conditions :-
(i) The appellants shall file an affidavit before the Executing Court indicating that they shall deposit the regular rent on or before 15 th day of every month and pay the arrears of rent, if any, within a month.
(ii) The appellants shall also furnish an undertaking before the Executing court that they shall deliver the vacant possession of the suit premises to the plaintiffs/respondents on or before 31/12/2018 and shall not part with the possession of the suit premises creating third party right.
(iii) An undertaking shall also be furnished by the appellants/ defendants to the effect that if the suit premises is not vacated on or before the said date, in that event, they shall pay the compensation at the rate of Rs.1000/- per day to the respondents/plaintiffs in addition to rent.
(iv) The said affidavit and undertaking shall be submitted within two weeks from the date of receipt of certified copy of this order.
(v) On violation of any of the conditions enumerated herein above, the respondents/plaintiffs would be entitled to get executed the decree in accordance with law.
(vi) The appellants/defendants may be entitled to ask the compensation in view of the provision of Section (10) Second Appeal No. 490/2016 12(6)(b) of the Madhya Pradesh Accommodation Control Act, 1961 during the execution proceedings.
14. In view of the foregoing discussion, in my considered opinion, the appeal filed by the appellants/defendants is devoid of any merit and no substantial question of law is involved for adjudication in this appeal, hence dismissed at admission stage.
(J.K.Maheshwari) Judge PB Digitally signed by PRADYUMNA BARVE Date: 2018.02.08 19:25:14 +05'30'