Madhya Pradesh High Court
Ram Sewak And Ors. vs Chakresh Kumar Jain on 18 September, 2001
Equivalent citations: 2001(4)MPHT375, 2002 A I H C 1107, (2002) 3 MPLJ 604, (2003) 1 RENCR 214, (2003) 1 RENTLR 605
JUDGMENT S.P. Khare, J.
1. This is defendants' second appeal under Section 100, CPC. The following substantial question of law was formulated by this Court by order dated 13-8-1999 at the time of admission of this appeal:--
"Whether the Courts below have erred in passing the decree for eviction on the grounds under Sections 12 (1) (c), 12 (1) (f) and 12 (1) (g), of the Madhya Pradesh Accommodation Control Act, 1961 ?"
2. The facts relevant for the decision of the question referred to above are that defendant No. 1 Ramsevak was tenant of Konsabai in the suit accommodation. She has bequeathed this house to plaintiff Dr. Chakresh Kumar Jain by registered Will dated 14-5-1991. Thus the plaintiff has become the owner of this house after the death of the testator on 3-6-1991 and defendant No. 1 Ramsevak became his tenant.
3. The plaintiffs suit for eviction has been decreed under Section 12 (1) (c), (f) and (g) of the M.P. Accommodation Control Act, 1961 (hereinafter to be referred to as 'the Act'). The plaintiffs case was that the defendant No. 1 has denied his title to the suit accommodation and, therefore, he has become liable to eviction. It has been further pleaded by the plaintiff that he requires the suit accommodation, which had been let out to the defendant No. 1 for non-residential purpose, for starting his dispensary and for this purpose he has no other reasonably suitable non-residential accommodation of his own in the city. He has stated that at present he is running his dispensary in a rented accommodation. It has also been pleaded that the suit house has become unfit for human habitation and it requires reconstruction.
4. The case of the defendant No. 1 is that he had denied the derivative title of the plaintiff and this does not constitute a ground for eviction. It is pleaded by the defendant No. 1 that the alleged need of the plaintiff is mere a pretence to get the suit accommodation vacated as it is only a small shop and it cannot be used for running a dispensary. The defendant No. 1 has also denied that the suit accommodation requires extensive repairs or the construction.
5. The Trial Court decreed the eviction suit on three grounds mentioned above and that decree has been affirmed by the First Appellate Court.
6. There is a concurrent finding of fact of the Trial Court and the First Appellate Court that the plaintiff requires the suit accommodation for running his dispensary therein. It is not disputed that at present he is running dispensary in a rented accommodation. Therefore, if the plaintiff wants to shift his dispensary to a house owned by him, there is nothing wrong in the predilection shown by him. His need is genuine. Legally he cannot be forced to run his dispensary in the rented accommodation. He has a choice to shift his dispensary to the suit accommodation. The finding of the two Courts regarding the bona fide requirement of the plaintiff is based on proper appreciation of the evidence on record and it cannot be said even remotely that it is perverse or unreasonable. The plaintiff is a qualified doctor and his requirement is bona fide. He has objectively demonstrated that his need is genuine.
7. It has been argued on behalf of the appellants that earlier Konsabai had instituted eviction proceeding against the defendant No. 1 in the year 1983 on the ground mentioned in Section 12 (1) (f) of the Act and that was dismissed and, therefore, that constitutes res judicata in the present suit. A certified copy of the judgment dated 5-10-1985 (Ex. D-2) of the Appellate Court has been filed. It shows that the ground for eviction under Section 12 (1) (f) of the Act was held to be not established because Dr. Chakresh Kumar Jain was not the son of plaintiff Konsabai. He is her daughter's son. Therefore, Section 12 (1) (f) of the Act was held as not available to plaintiff Konsabai to seek eviction for the requirement of her grand-son. Now Konsabai has died. She has executed a Will in favour of present plaintiff Dr. Chakresh Kumar Jain. Now he has become the owner of this house. He can claim eviction for his own bona fide requirement. It is obvious that the earlier suit cannot operate as res judicata. That suit was dismissed as the need of the present plaintiff could not be pressed therein because he was not the son of Konsabai. Now the situation has changed. Even otherwise the Supreme Court has recently held in N.R. Narayan Swamy v. B. Francis Jagan, 2001 AIR SCW 2765, that in eviction proceedings under the Rent Act the ground of bona fide requirement or non-payment of rent is a recurring cause and, therefore, landlord is not precluded from instituting fresh proceeding. In an eviction suit on the ground of bona fide requirement the genuineness of the said ground is to be decided on the basis of requirement on the date of the suit. Further, even if a suit for eviction on the ground of bona fide requirement is filed and is dismissed it cannot be held that once a question of necessity is decided against the landlord he will not have a bona fide and genuine necessity ever in future. In the subsequent proceedings, if such claim is established by cogent evidence adduced by the landlord, decree for possession could be passed.
8. The decree for eviction under Section 12 (1) (f) of the Act is unassailable.
9. The plaintiff had pleaded the ground for eviction under Section 12 (1) (h) of the Act. He wants to reconstruct the house and then start his dispensary in that house. There is nothing illegal or irregular in doing so. The plaintiff is at liberty to reconstruct the house and then occupy it for his profession. The ground for eviction under Section 12 (1) (h) of the Act is established. Therefore, the decree should have been under Section 12 (1) (h) and not under Section 12 (1) (g) of the Act.
10. So far as the ground for eviction under Section 12 (1) (c) of the Act is concerned, it is debatable whether that ground is established. The plaintiff claims to have derived title on the basis of the Will of the original owner. The defendants denied it. The plaintiff has proved the Will. Therefore, mere denial of acquisition of title by the plaintiff on the basis of the Will cannot be termed as disclaimer of title so as to furnish a ground for eviction under Section 12(1) (c) of the Act.
11. In view of the above discussion the ground for eviction under Section 12 (1) (c) of the Act is held to be not proved. But the ground for eviction under Section 12 (1) (f) of the Act is very firm and unassailable. The need of the plaintiff for the suit accommodation is patent. He has no other accommodation of his own for this purpose. The plaintiff can re-build the house and carry on his medical profession in the suit accommodation. The plaintiff has sufficient funds and he got map (Ex. P-17) and estimate (Ex. P-16) prepared as required by Section 12 (7) of the Act. The ground for eviction under Section 12 (1) (h) of the Act is also fully established. As a matter of fact, the plaintiff is not required to prove the ground under Section 12 (1) (h) of the Act to the hilt. The plaintiff can re-build the house after the eviction of the defendant No. 1 to satisfy his genuine need.
12. This appeal is dismissed.
13. Second Appeal dismissed.