Chattisgarh High Court
Chintamani vs Sapan Kumar Das on 16 February, 2009
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 205 of 1990
Chintamani
...Petitioners
versus
Sapan Kumar Das
...Respondents
! Shri H S Patel, counsel for the appellant
^ Shri Abhijeet Sarkar, counsel for the respondent
Honble Shri Dilip Raosaheb Deshmukh, J
Dated:16/02/2009
: Judgment
Appeal under Section 100 of the Code of Civil Procedure, 1908
JUDGMENT
(Delivered on this 16th day of February, 2009) This is the unsuccessful tenant's second appeal. Civil Judge Class-II, Jashpurnagar had, by judgment and decree dated 30-11-1987 in Civil Suit No.55-A/1987, decreed the respondent/plaintiff's suit for eviction under Section 12(1)(e) of the Chhattisgarh Accommodation Control Act, 1961 (henceforth `the Act'). The appeal preferred by the appellant/tenant (Civil Appeal No.10-A/1989) was also dismissed by the Ist Additional Judge to the District Judge, Raigarh by judgment and decree dated 02-04-1990.
(2) In this appeal, it is not in dispute that in relation to the suit accommodation let out purely for residence, the appellant/defendant is the tenant of the respondent/plaintiff.
(3) The respondent/plaintiff had, by instituting Civil Suit No.55-A/1987 on 17-07-1984, sought eviction of the appellant/defendant from the suit accommodation, i.e., House No.203, situated in Kevda Badi, Ward No.15, Raigarh on the ground that he required the suit accommodation bona fide for residence as also for his business since notice dated 23-04-1984 was served on him by his brothers Tapan and Pawan to vacate their garage and to shift his gas-welding plant and also to make arrangement for living elsewhere. It was averred that the plaintiff had no other reasonably suitable accommodation of his own in Raigarh for the said purpose.
(4) The appellant/defendant resisted the suit on the ground that the alleged notice dated 23-04-1984 was fake and a mere pretext for making out a ground for eviction. It was not pleaded that the respondent/plaintiff had, in his vacant possession any other reasonably suitable accommodation for residence in Raigarh.
(5) In Civil Appeal No.10-A/1989 an application under Order 6 Rule 17 of the Code of Civil Procedure was filed by the appellant/defendant for incorporating the following amendment in the written statement:
"okni= dh dafMdk 12 ds mijkUr fuEufyf[kr rF; laca/kh vfHkopu tksM+us dh Lohd`fr nh tk;%& dafMdk 12 ds mijkUr 12 ,v+ 12 ,v+ ;g fd oknh dk ,d fjgk;'kh edku oknxzLr edku ds fiNokMs+ esa gS A mDr edku eas eugj.k flag Bkdqj fdjk;snkj Fkk A mlus lu 1983 ds vizSy & ebZ ekg esa [kkyh dj fn;k A mDr edku 3 & 4 ekg rd [kkyh jgk rnmijkUr lu 1984 esa oknh us mDr edku dks ,d gjhjke dks tuojh lu 1984 esa 80+ :i;s ekgokjh fdjk;s ij fn;k A bl rjg oknh dks edku dh vko';drk ugha gS A"
By the impugned judgment and decree, the above application as also the appeal were dismissed. (6) The following questions of law arise for determination in this appeal:
"1. Whether the decree of eviction granted by lower court against the appellant tenant on grounds under Section 12(1)(e)(f) of the M.P. Accommodation Control Act, 1961 is vitiated due to non consideration of the fact that there is no evidence led by the landlord that the existing accommodation with him was not suitable for his needs?
2. Whether the decree of eviction is bad in the absence of proof of partition and allotment of the suit accommodation to the share of the respondent and the finding in that respect of the first appellate Court is sustainable in law?
3. Whether the first appellate Court was wrong in dismissing the application of the tenant under Order 6 Rule 17 of the C.P.C. for amending his written statement?"
(7) Shri H.S.Patel, learned counsel for the appellant/defendant placed reliance on North Eastern Railway Admin, Gorakhpur vs. Bhagwan Das (D) By Lrs., 2008 SAR (Civil) 490 while arguing that the lower appellate Court ought to have allowed the application for amendment under Order 6 Rule 17 of the Code of Civil Procedure filed by the appellant/defendant to introduce a subsequent event by way of pleadings. It was urged that the amendment if allowed would have shown that a reasonably suitable accommodation in Raigarh had been let out by the respondent/plaintiff after it fell vacant. It was also argued that the decree for eviction of the tenant on the basis of a composite need could not be passed since the accommodation was let out purely for residential purpose. Reliance was placed on Smt. Sarla Devi Gupta vs. Smt. Tara Devi Dubey, 2007 (3) C.G.L.J. 88. (8) On the other hand, Shri Abhijeet Sarkar, learned counsel for the respondent/plaintiff argued in support of the impugned judgment and decree and urged that the respondent/plaintiff had proved the notice dated 23-04-1984 Ex.P-6 given by his brothers which would go to show that the respondent/plaintiff was asked to vacate the joint family residence and also the garage where he was carrying on his gas-welding business. It was further urged that the suit was instituted on 17-07-1984 and the amendment sought by the appellant/defendant revealed that the accommodation on vacation by Manharan Singh Thakur, a tenant in April- May, 1983, the respondent/plaintiff had let out that accommodation in January, 1984. It was urged that the notice to vacate the joint family residence was given by the brothers of the respondent/plaintiff on 23-04- 1984, i.e., much after the respondent/plaintiff had let out the abovementioned accommodation to Hariram in January, 1984. In a suit for eviction, the respondent/plaintiff was required to establish bona fide requirement on the date of the suit, therefore, the lower appellate Court was wholly justified in rejecting the application under Order 6 Rule 17 of the Code of Civil Procedure filed by the appellant/defendant.
(9) Having heard the rival contentions, I have perused the impugned judgment and decree as also the record. It is well settled that an accommodation let out for residential purpose cannot be got evicted under law on the ground of bona fide requirement for non-residential purpose. In a case where the accommodation is let out purely for residential purpose and a composite need for residence as well as non-residence is put forth by the landlord, the Court has to examine whether the requirement of the accommodation by the landlord is predominantly residential or not. If the Court comes to the conclusion that the landlord predominantly requires the accommodation for residential purpose, then a decree for eviction under Section 12(1)(e) of the Act could be passed. On the other hand, if the Court comes to the conclusion that the landlord predominantly requires the accommodation for non-residential purpose, a decree for eviction could not be passed against the tenant. Statement on oath of the respondent/plaintiff Sapan Kumar Das was recorded under Order 10 Rule 2 of the Code of Civil Procedure by the trial Court on 21-01-1986, wherein he stated as under:
"-------------------esjk Lor% dk xSl osfYMax dk nqdku gS- tks fd esjs NksVs HkkbZ dh fgLls dh gS- blfy;s eq>s oknxzLr edku esa nqdku LFkkfir djuk gS- blfy;s eq>s oknxzLr edku dh t:jr gS-"
This clearly goes to show that the respondent/plaintiff required the suit accommodation for setting up his gas- welding plant, i.e., non-residential purpose. In his testimony recorded on 09-01-1987, Sapan Kumar Das had stated in paragraph 3 as under:
"oknxzLr edku ds vykok jk;x<+ 'kgj esa esjs ikl jgus ds fy, dksbZ edku ugha gS] eSa xSl osfYMax dk dke djrk gWwA eSa vius HkkbZ ds xSjst esa dke dj jgk gWwA oknxzLr edku esa eSa fuokl djuk pkgrk gWw vkSj lkFk gh lkFk xSjst [kksydj xSl osfYMax dk dke djuk pkgrk gWwA"
A perusal of the notice Ex.P-6, which furnished a cause of action in favour of the respondent/plaintiff also shows that on account of the use of the garage by the respondent/plaintiff for a gas-welding plant, lot of disturbance was being caused. It is, therefore, safe to presume that the requirement of the suit accommodation by the respondent/plaintiff was predominantly for non-residential purpose. In paragraph 10 of his testimony, the respondent/plaintiff further stated that about 1+ years before deposing on 09-01-1987 before the trial Court, the accommodation occupied by Dharnidhar Shadangi in the first floor of his house had also fallen vacant. This clearly goes to show that the requirement for residence projected by the respondent/plaintiff was not bona fide and he predominantly required the suit accommodation for using it for establishing his gas-welding plant. In paragraph 11 of its judgment, the trial Court had also mentioned as under:
"11. mijksDr rF;ksa ds vykok oknh liu dqekj (ok0lk0 1A ds vuqlkj og xSl osfYMax dk dke djrk gS vkSj mls xSl osfYMax dh e'khu cVokjs esa feyh gS vkSj og vius HkkbZ ds xSjst esa xsSl osfYMax dk dke dj jgk gS mlds HkkbZ mls nqdku ls tkus ds fy, dg jgs gSa blfy;s og oknxzLr edku esa xSjst [kksydj xSl osfYMax dk dke djuk pkgrk gSA izfroknh fpUrke.kh (iz0lk0 1A us ;g crk;k gS fd oknh M&k;Ogj gS vkSj igys vkj0ds0 fey jk;x<+ esa thi pykus dk dke djrk FkkA ysfdu oknh }kjk ukSdjh fd, tkus ds laca/k esa izfroknh us u rks dksbZ izek.k is'k fd;k gS vksSj u gh oknh ls ftjg ds nkSjku mDr rF; dks yk;k gSA cfYd mlds foijhr Lo;aa izfroknh fpUrke.kh rFkk mlds xokg 'kaHkw (iz0lk0 2A us oknh dks iqfyl ykbu ds lkeus xSjst esa xSl osfYMax dk dke djuk Lohdkj fd;k gSA tSlk fd mij dh dafMdk dzekad 10 esa ;g mYys[k fd;k x;k gS fd oknxzLr edku fuokl ds vykos xSjst ds fy, Hkh mi;qDr gSA"
The above observation of the trial Court also substantiates the inference drawn by me that the requirement of the suit accommodation projected by the respondent/plaintiff was predominantly for non- residential purpose. In this view of the matter, an accommodation let out for residential purpose could not be got evicted on the ground of requirement for non- residential purpose. Both the Courts below have, thus, erred in law in granting a decree for eviction of the appellant/tenant under Section 12(1)(e) of the Act. The first substantial question of law is accordingly answered that the decree for eviction under Section 12(1)(e) of the Act granted by the trial Court and affirmed by the lower appellate Court is liable to be set aside.
(10) Since the learned counsel for the appellant/defendant had, at the very outset, admitted that the relationship of landlord and tenant existed between the appellant/defendant and the respondent/plaintiff, the second substantial question of law loses its significance and would not arise for determination of this appeal.
(11) So far as the rejection of the application under Order 6 Rule 17 of the Code of Civil Procedure by the lower appellate Court is concerned, the trial Court had decided Civil Suit No.55-A/1987 on 30-11-1987. There is nothing to show that the application for amendment could not have been filed in the trial Court despite due diligence. Since the cause of action had accrued to the plaintiff pursuant to a notice dated 23-04-1984, the letting out of an accommodation that had fallen vacant, by the respondent/plaintiff in January, 1984, would be of no consequence because the bona fide requirement projected by the landlord is to be assessed on the date of suit. The lower appellate Court was, thus, wholly justified in rejecting the application under Order 6 Rule 17 of the Code of Civil Procedure. The last substantial question of law is, therefore, answered in the negative.
(12) In the result, the appeal is allowed. The impugned judgment and decree passed by the lower appellate Court as also the judgment and decree passed by the trial Court are set aside. The suit is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.
(13) A decree be drawn accordingly.
JUDGE