Madhya Pradesh High Court
Smt. Shanti Devi (Dead) Through L.Rs. vs Dwarka Das on 25 January, 2005
Equivalent citations: 2005(2)MPHT405
JUDGMENT S.K. Pande, J.
1. Being aggrieved by the judgment-decree dated 5-8-94, passed by IX ADJ, Bhopal in C.A. No. 47-A/92, affirming the judgment-decree dated 16-4-92, passed by II Civil Judge Class II, Bhopal in C.S. No. 138-A/85, plaintiff/appellant has preferred this appeal under Section 100, CPC.
2. The appeal has been heard on the following substantial questions of law :--
"(i) Whether in view of the evidence available on record, both the Courts below have erred on the question of law in not decreeing the suit of the appellant for bonafide requirement of the son of the plaintiff/appellant for opening his clinic in the relevant premises ?
(ii) Whether both the Courts below have erred in law in not decreeing the suit of the plaintiff on the ground of alleged subletting of the suit premises by the defendant/tenant ?"
3. Plaintiff Late Shanti Devi was owner of suit shop No. 7, House No. 11, New Market, T.T. Nagar, Bhopal. Admittedly defendant/respondent remained a tenant of Late Shanti Devi on monthly rent of Rs. 350/- per month. Plaintiff Late Shanti Devi instituted C.S. No. 138-A/85 seeking eviction of tenant- defendant/respondent under Section 12(1)(b), (f) of the M.P. Accommodation Act (hereinafter referred as 'the Act') on the ground that the tenant unlawfully sub-let, assigned or otherwise parted with the possession of suit shop in favour of one Darshanlal and the suit shop is bonafide required by her son Dr. K. Kukreja for opening a clinic of his own and there is no other alternative suitable accommodation available in the city. The suit was resisted by the tenant-defendant/respondent stating inter alia that the suit shop never been sub-let or parted with possession in favour of Darshanlal, in fact Darshanlal was looking after the business of defendant/respondent as an employee. The suit shop is not bonafide required for opening a clinic by Dr. K. Kukreja.
The Civil Judge in C.S. No. 138-A/85 vide judgment dated 16-4-92 held that grounds seeking eviction under Section 12(1)(b), (f) of the Act have not been proved. Therefore, dismissed the suit of plaintiff Late Shanti Devi. Being aggrieved, she preferred C.A. No. 47-A/92 before IX ADJ, Bhopal. The Court below held that tenant-defendant/respondent in fact sublet the suit shop to one Darshanlal. However, the sub- tenancy remained only for a period during 1976 to 1981. Therefore, there being no sub-tenancy on the date of institution of suit (23-11-83), affirming the judgment-decree passed by Civil Judge, dismissed the appeal vide impugned judgment dated 5-8-94. Being aggrieved, plaintiff Late Shanti Devi preferred the present appeal under Section 100, CPC. Since plaintiff late Shanti Devi died, on the basis of registered will dated 19-8-99, son Dr. K. Kukreja has been brought on record.
3. It is contended that in view of the evidence available on record, both the Courts below have erred on the question of law in not decreeing the suit of the appellant for bonafide requirement for opening a clinic in the suit shop. Both the Courts below have erred in law not decreeing the suit on the ground of alleged sub-letting of the suit shop by the tenant- defendant/respondent.
4. Dr. Kanhaiyalal Kukreja (P.W. 1) is son of plaintiff Late Shanti Devi. This witness has stated that he obtained the decree of MBBS in the year 1978. Thereafter, in 1982, he obtained the degree of M.S. This suit shop is bonafide required by him for opening a clinic of his own and there is no other alternative suitable accommodation available in the city. Plaintiff Late Smt. Shanti Devi (P.W. 3) also has stated that her son Dr. Kanhaiyalal Kukreja (P.W. 1) bonafide requires the suit shop for opening a clinic of his own and there is no other alternative suitable accommodation available in the city. The suit shop is in New Market, T.T. Nagar, Bhopal ideally suitable for opening a clinic by Dr. Kanhaiyalal Kukreja (P.W. 1). Ramchandra Savariya (P.W. 2) is the other witness to state that Dr. Kanhaiyalal Kukreja (P.W. 1) expressed his desire and need of opening a clinic of his own in the suit shop. Dwarka Das (D.W. 1) has stated that during the year 1976-77, two shops were let out by plaintiff Late Shanti Devi and her husband. The suit shop is not bonafide required by her son Dr. Kanhaiyalal Kukreja (P.W. 1) for opening a clinic of his own. Dr. Kanhaiyalal Kukreja (P.W. 1) in his cross-examination has admitted that during the year 1975-1977, few shops were given by his father to some other tenants. Letting out different shops during the year 1975-1977 as stated by Dwarka Das (D.W. 1) in fact can not negative the statement of Dr. Kanhaiyalal Kukreja (P.W. 1) and Late Smt. Shanti Devi (P.W. 3). Dr. Kanhaiyalal Kukreja (P.W. 1) obtained the Degree of MBBS in the year 1978. Thereafter, completing further studies, obtained the degree of MS in the year 1982. He is in Government service. Dr. Kanhaiyalal Kukreja (P.W. 1) has stated that private practice by him is not prohibited under the rules. Dr. Kanhaiyalal Kukreja (P.W. 1) has stated that the suit shop is bonafide required by him for opening a clinic of his own in the New Market, T.T. Nagar, Bhopal. There is no other alternative suitable accommodation available in the city. On the death of plaintiff Late Smt. Shanti Devi, Dr. Kanhaiyalal Kukreja (P.W. 1) with reference to registered will dated 19-8-99 has become owner of the suit shop.
The Courts below, therefore, misread the evidence with reference to the fact of Dr. Kanhaiyalal Kukreja (P.W. 1) being in Government service and few other shops during the year 1975-1977 were let out by his father to other tenants. Even otherwise the suitability of the accommodation for opening a clinic of his own is a discretion of Dr. Kanhaiyalal Kukreja (P.W. 1). The suit shop being situated in New Market, T.T. Nagar is ideally suitable for opening a clinic by Dr. Kanhaiyalal Kukreja (P.W. 1). Ground of eviction under Section 12(1)(f) of the Act accordingly is available to him.
5. Ex. P-26 is the deed of partnership said to have been constituted between tenant-defendant/respondent Dwarka Das and Darshanlal. With reference to this partnership deed dated 23-11-76, Darshanlal remained in occupation of suit shop. Dr. Kanhaiyalal Kukreja (P.W. 1) has stated that having parted with possession in favour of Darshanlal, tenant-defendant/respondent was carrying out his business of Gyan Restaurant, 1464 Quarters, Bhopal. Ramchandra Savariya (P.W. 2) also has stated that Darshanlal remained in possession of the suit shop. Darshanlal was carrying the business in the name of Darshan General Stores. Dwarka Das (D.W. 1) has stated that his nephew Darshanlal was working as an employee in his shop. This witness in cross-examination has admitted that for purpose of establishment, Darshanlal was not shown to be an employee of the firm constituted vide Ex. P-26. Dwarka Das (D.W. 2) in his statement Para 2 has admitted that vide Ex. P-26, a partnership was constituted and the partnership business was carried out in the suit shop. This makes it clear that tenant-defendant/respondent by constituting partnership vide Ex. P-26 sublet or parted with possession of suit shop in favour of Darshanlal (D.W. 1).
In Gajanan Dattatraya v. Sherbanu Hosang Patel and Ors., AIR 1975 SC 2156, it has been held that provisions of the Act indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of 13(1)(e), namely, that he has sublet. The language is that if the tenant has sublet, the protection ceases. It can not be contended that the sub-letting must continue at the date of the suit for passing the decree for eviction. The tenants liability to eviction arises once the fact of unlawfully sub-letting is proved.
In Navalmal v. Laxansingh, 1991 MPLJ 812, consider the Gajanan Dattatraya's case (supra), it has been held :--
"If the tenant has sub-let or parted with possession of the premises or has done any act injurious to the interest of the landlord, cause of action having once accrued to the landlord under the M.P. Accommodation Control Act the Court would not deny the relief of ejectment even after the tenant was prepared to reverse or had in fact reversed and factual possession. The provision rendering tenant liable to ejectment on the ground of sub-letting parting with possession or assignment of interest is founded on the principle that the tenant who has shown by his such conduct that he does no mere need the premises for himself must yield it to the landlord and no one else nor he should be permitted to enrich himself at the cost of the landlord."
In Ramesh Kumar and Anr. v. Shri Sudarshanlal Dube, 1984 MPRCJ Note 41, considering the dictum laid down in Gajanan Dattatraya's case (supra) a Single Bench of this Court held that the ratio of the decision is not that the sub-lease should subsist on the date of the notice, but the ratio is that the tenant is disentitled to the protection afforded to him under M.P. Accommodation Control Act, if he at any time during the pendency of the lease sublets the suit accommodation or a part thereof. In view of this fact, the Courts below ought to have decreed the suit under Section 12(1)(b) of the Act.
In Deena (dead) through L.Rs. v. Bharat Singh (dead) through L.Rs., (2002) 6 Supreme Court Cases 336, the Apex Court held that concurrent findings of Courts below in Second Appeal under Section 100, CPC can not be reversed on basis of general observations. This Court must give reasons for taking contrary view and must also discuss the materials based on which the Lower Courts came to their conclusions. With reference to this, the evidence on record has been examined. Courts below in fact misread the evidence-law on the point of bonafide need and sub-letting, which resulted into dismissal of plaintiff/appellant's suit seeking eviction under Section 12(1)(b), (f) of the Act. The concurrent findings of fact arrived at by Courts below are, therefore, perverse. As such, the judgment-decree passed by Courts below are liable to be set aside.
6. Consequently, appeal succeeds. Setting aside the judgment-decree passed by Courts below, C.S. No. 138-A/95 seeking eviction of defendant/ respondent under Section 12(1)(b), (f) of the Act stands decreed. However, defendant/respondent is directed to vacate and deliver possession of suit shop to the plaintiff/appellant by 30th of June, 2005. Defendant/respondent shall bear his cost and pay the cost of plaintiff/appellant. Counsel fee as per rule or certificate (whichever is less).