Madhya Pradesh High Court
State Of M.P. And Ors. vs Abbas Ali on 5 October, 2006
Author: Shantanu Kemkar
Bench: Shantanu Kemkar
JUDGMENT Shantanu Kemkar, J.
1. This is an appeal filed by the defendants under Section 96 of the Code of Civil Procedure against the judgment and decree dated 10-1-2003 passed by the II Addl. District Judge, Khandwa in Civil Suit No. 15-A/2000 whereby the pLalntiff's suit seeking eviction of the defendants appellants has been decreed.
2. The pLalntiff filed a suit against the defendants stating therein that he is owner of the suit house situated at Block No. 11 Plot No. 25/1 Ward Padawa in City of Khandwa. The suit house was let out by him to the defendants for residence of Nurses to be used as Nurses' hostel. It was agreed between the parties that the monthly rent of the suit house would be Rs. 3594/- for initial 9 months from 1-10-1998 to 30-6-1999 and shall increase by 10% from 1-7-1999 and was liable to be increased by 10% after completion of every three years. The pLalntiff further pleaded that the suit house is required bonafidely by him for his residence and for residence of his family members and also for starting his business of supply of building materials and sanitary fittings. It is also averred that the suit house is bonafidely required by him for making substantial additions and alterations of it, which cannot be carried out without the same being vacated. The pLalntiff further averred that he has no alternative accommodation of his own in his occupation in the city of Khandwa. Thus, the pLalntiff sought decree of eviction against the defendants under Section 12 (1)(e), (f) and (h) of the M.P. Accommodation Control Act, 1961 ('Act' for short).
3. The defendants filed written statement and did not dispute about the rate of rent. They stated that the need of the pLalntiff is not bonafide and he wants to increase the rent. It is further averred that the pLalntiff has other accommodation of his own in his possession and as such he is not entitled for decree of eviction. It is further averred that the suit house was let out for residential purpose for Nurses' hostel, in the circumstances, the pLalntiff cannot seek eviction for non-residential purpose. The defendants further averred that the pLalntiff has not prepared any estimate for additions and alterations in the suit house. It is also averred that unless the pLalntiff proves availability of fund he is not entitled for decree of eviction. On the basis of the pleadings the Trial Court framed as many as 10 issues and after recording the evidence led by the parties decreed the pLalntiff's suit on all the grounds. Feeling aggrieved the defendants have filed this appeal.
4. Shri L.D.S. Baghel, learned Govt. Advocate contended on behalf of the appellants defendants that the pLalntiff respondent has failed to prove his bonafide requirement. The pLalntiff has alternative accommodation available of his own for occupation in the city of Khandwa and as such the decree passed by the Court below is liable to be set aside. He contended that the suit house was let out for only for the residential purpose, in the circumstances, the decree for eviction on the basis of composite need under Section 12(1)(e) and (f) could not have been passed.
5. Shri Alok Aradhe, learned Counsel appearing for the respondent pLalntiff contended that from the evidence of pLalntiff and his witnesses the bonafide need of the pLalntiff for residence, for starting business and for substantial additions and alterations is made out. He submits that even if it is established that a landlord requires a part of the accommodation let out and the requirement is for the purpose for which the accommodation was let out a landlord becomes entitled to seek eviction from the entire accommodation. In support he placed reliance on a Division Bench judgment of this Court in case of Jagjit Kumar v. Jagdishchandra 1982 JLJ 319. He also placed reliance on judgment of the Supreme Court in case of Pravita Devi (Smt.) v. T.V. Krishnan and of this Court in case of Radheshyam v. Ramakant 2004(3) M.P.H.T. 76 to contend that once a bonafide 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. He also placed reliance on a decision of this Court in Madanlal Sharma v. Smt. Meenabai 1999 (2) MPWN 67, to contend that in order to defeat the Claim of the pLalntiff on grounds of bonafide need for residence it has to be shown that another house owned by him is available for his residence being in his possession. The alternative accommodation should be proved by defendant to be suitable and under the ownership of the landlord. On such proof the landlord can prove the same to be not suitable. He also placed reliance on judgment of Supreme Court in case of Baburao Bagaji Karemore and Ors. v. Govind and Ors. to contend that though Appellate Court is entitled to examine and appreciate the evidence in order to ascertain whether the finding of the Trial Court is warranted, it will not interfere with it unless it is unsound, perverse or based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracy. It should not lightly interfere with it merely because it takes a different view on the evidence. By drawing attention of this Court to the examination-in-chief and cross-examination of the pLalntiff he submits that there is no challenge by the defendants to the bonafide need of the pLalntiff and to the non-availability of alternative accommodation of his own in his occupation in the city of Khandwa, in the circumstances, it can be held that the ground is not under challenge and can be taken to be accepted. In support he placed reliance on Division Bench judgment of this Court in case of Kamlarani v. Kumari Pinki 2001(2) MPLJ 677.
6. In order to prove his case the pLalntiff Abbas Ali (P.W. 1) deposed that he is owner of the suit house which was let out by him to the defendants for residence of nurses as Nursing Hostel initially for monthly rent of Rs. 3594/-. He stated that he is residing in the upper portion of the house of his sister Khatiza Bai situated at Shivaji Marg, Moghat Road, Khandwa and doing the business in the name of Amir Medical Stores at the ground floor of the said house of his sister Khatiza Bai. He also stated that his sister Khatiza Bai has asked him to vacate her house as she wants to live in her house. He also stated that in the said house of Khatiza Bai his brother Amiruddin is also residing and Khatiza Bai has also informed Amiruddin to vacate the portion which is in the occupation of Amiruddin. He also deposed that presently Khatiza Bai is residing in the house of their brother Asgar Ali. He also deposed that after getting the suit house vacated he will reside with his wife, daughter, two grand-daughters and son-in-law in the upper portion of the suit house and shall start his own business of supply of building materials and sanitary fittings on the ground floor. He further deposed that presently he is partner in Amir Medical Stores but after starting his own business he will quit from the partnership of Amir Medical Stores. He has also deposed that except the suit house he has no other accommodation of his own in his occupation in the city of Khandwa. He will make suitable additions and alterations and thereafter start using the suit house and such additions and alterations cannot be carried out without the suit house being vacated by the defendants. He also deposed that in spite of service of notice Exh. P-2 the defendants did not vacate the suit house. He stated that he is having Rs. 1,44,000/- in Punjab National Bank and Rs. 48,000/- in United Commercial Bank as per fixed deposit receipts produced by him. He has also stated that he got prepared the map Exh. P-36 and estimate Exh. P-37 from a Civil Engineer for the additions and alterations in the suit house. In his cross-examination he has expLalned that the old house situated at Bombay Bazar is in the name of his brothers Amiruddin and Hatim and the other house which was re-constructed is in the name of Asgar Ali. Khatiza Bai (P.W. 2) supported the pLalntiff version. She has stated that she is residing in the house of Asgar Ali and she wants to reside in her own house situated at Shivaji Chowk where the Amir Medical Stores is at the ground floor. She stated that her brothers Abbas Ali (pLalntiff) and Amiruddin are residing at the upper portion of her house. She further deposed that she has asked her brothers to vacate her house as she wants to shift to her own house because in the house where she is residing is in dilapidated condition. She also stated that Abbas Ali has informed her that he will vacate her house as soon as the suit house is vacated. Tarun Kumar (P.W. 3), a Civil Engineer deposed that he has prepared the map Exh. P-36 for additions and alterations of the suit house and has also prepared the estimate Exh. P-37 for it.
7. In rebuttal the defendants examined Dr. P.S. Dave (D.W. 1). He has submitted that pLalntiff Abbas Ali is residing at the upper portion of his medical stores. He deposed that pLalntiff has got other houses at Bombay Bazar. In his cross-examination he has stated that he is not aware about any partition between the pLalntiff and his brothers. He also showed ignorance as to in whose names the buildings situated at Bombay Bazar stand. However, he admitted that he has seen pLalntiff and his brother Asgar Ali residing in the building situated at Bombay Bazar. He further stated that he is not aware whether the pLalntiff wants to reside and start his business in the suit house. In his further cross-examination he stated that the pLalntiff wants to start business of buildings materials at the ground floor of the suit house. He showed his ignorance about pLalntiff's need for alternations and additions in the suit house. He also stated that he is not aware as to whether the pLalntiff has got other accommodation of his own for his residence or business except the suit house.
8. On the assessment of the aforesaid evidence it is clear that the pLalntiff is residing at the upper portion of the house of his sister Khatiza Bai situated at Shivaji Marg Moghat Road. From the pLalntiff's version supported by the evidence of his sister Khatiza Bai (P.W. 2) it is proved that the said house is owned by Khatiza Bai. The pLalntiff has established that Khatiza Bai wants to reside in her own house and for that she has asked him to vacate her house. It is also established that the pLalntiff is doing business in the ground floor of the said house of his sister Khatiza Bai in name of Amir Medical Stores in partnership. As per the pLalntiff's evidence he requires the suit house for his residence, for residence of his wife, daughter, two grand daughters and son-in-law. On the basis of averments and the evidence it appears that his daughter is married, in the circumstances, the need of the pLalntiff for residence would be of himself and his wife. Thus, ignoring the need of the other members, in my view the pLalntiff has established the requirement of the suit house for residence of himself and his wife. He has also proved that he wants to start business of supply of building materials and sanitary fittings in the ground floor of the suit house. There is no rebuttal to the pLalntiffs version that there is no other accommodation of his own for his occupation in the city of Khandwa. On the other hand Dr. P.S. Dave (D.W. 1) in his cross-examination has stated that he is not aware whether the pLalntiff has any other house in his occupation or not. The defendants could not establish that the pLalntiff is having any other accommodation of his own for occupation in the city of Khandwa. There is also no rebuttal to the evidence of the pLalntiff and his witness Tarun Kumar (P.W. 3). In my view from the evidence adduced by the parties the pLalntiff has established that on getting the suit house vacated he will reside in the upper portion of it and shall start business of supplying building materials and sanitary fittings in the ground floor. The pLalntiff has also successfully proved that he has got sufficient funds for starting his business and for making additions and alternations and for that he has prepared the map and the estimate. In my view the pLalntiff has proved the bonafide need of the suit house for residential purpose and also for non-residential purpose. It is now well established that it is for the pLalntiff to decide as to in what manner he wants to use the suit accommodation for the beneficial use of his property. See Kailash Chand Trivedi v. Punjab National Bank 2000 (2) JLJ 379. It is also now well established that if a landlord requires a part of accommodation let out and that requirement is for the purpose for which the accommodation was let out the landlord becomes entitled to seek eviction from the entire accommodation of fulfillment of conditions specified in Clause (e) or (f) of Section 12(1) of the Act See Jagjit Kumar v. Jagdishchandra (supra). Having regard to this in my view there is no bar for eviction from a building let out for residential purpose which is required not only for residential but also for non-residential use. Thus, the contention of the defendants that the suit house being let out for residential purpose cannot be got evicted for the residential and nonresidential need even if the residential need is proved cannot be accepted. However, in view of the Division Bench judgment of this Court in case of T.R. Sah v. Kundan Kaur and Ors. , the Claim of the pLalntiff under Section 12(1)(h) has rendered redundant in view of the decree of eviction granted to the pLalntiff under Section 12(1)(e) and (f) of the Act.
9. After the appeal was heard and the case was reserved for judgment the defendants have filed LA. No. 9433/2006 under Order 41 Rule 27 of the Code of Civil Procedure for taking additional evidence on record. In the said application the only reason assigned for taking the documents on record is that "subsequently some documents have come to the knowledge of revisionist indicating that the landlord has a number of alternative accommodations as such the bonafide requirement of revisionist is demolished". With the aforesaid application photocopies of entries of ledger of Municipal Corporation, Khandwa and photocopies of extract of maintenance Khasra of Nazul and photocopies of the list describing the houses with names of owners issued by the Municipal Corporation, Khandwa have been filed. In my considered view the defendants appellants have not shown any justification for producing the additional evidence after arguments are concluded and the judgment is reserved, in the circumstances, I find no ground to allow this application, especially when the aforesaid documents were already in existence and the defendants had ample opportunity to produce the same in the Trial Court. There is absolutely no explanation and no cogent ground is shown to permit the defendants to produce the additional evidence, particularly when no attempt to produce them was made in the Court below. It is also not the case of the defendants that the Trial Court has refused to take these documents at the time when the matter was pending before it. In the circumstances, in my considered view, application for taking additional evidence cannot be allowed as it would amount to grant of permission to fill up the lacunae. The application is accordingly rejected.
10. As the findings recorded by the Trial Court are based on correct appreciation of evidence available on record and the same are not based on misreading of evidence, as such no interference except as indicated above is warranted in this appeal. Accordingly, this appeal deserves to be and is hereby dismissed. The appellants/defendants shall vacate the suit house within two months and handover the vacant and peaceful possession to the pLalntiff respondent together with entire arrears of rent and costs.