Madhya Pradesh High Court
Rama Bai vs Kanchan Bai & Ors. on 8 March, 2018
1 S.A.No.10/2004
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
JUSTICE ANAND PATHAK
SECOND APPEAL NO. 10 of 2004
Rama Bai
Versus
Kanchan Bai & Ors.
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Shri P.C.Chandil, learned counsel for the appellant/defendant.
Shri Santosh Agrawal, learned counsel for respondents No. 1 to
13/plaintiffs.
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JUDGMENT
( Delivered on this 8th Day of March, 2018) The present petition under Section 100 of CPC has been preferred by the appellant/defendant No. 1 (A). LR/wife of original defendant- Ghasi Ram against the judgment and decree dated 25/11/2003 passed by Additional District Judge, Sironj, District Vidisha in Civil Appeal No. 25-A/2001; whereby, the judgment and decree dated 18/9/2001 passed by Civil Judge, Class-I, Sironj, District Vidisha in Civil Suit No. 7-A/2001 (Old No. 22-A/1995), has been affirmed and present appellant/defendant/tenant has been decreed to be evicted from the suit premises on the grounds available under Section 12 (1) (b) and (f) of the M.P. Accommodation Control Act, 1961.
2. The appellant alongwith other defendants (LRs of original defendant Ghasi Ram) suffered from both the Courts below and present appellant/defendant is challenging the concurring findings of facts and law of both the Courts below,by filing this appeal.
3. Precisely stated facts of the case are that a suit for eviction and arrears of rent was filed by original plaintiff Late Shri Lakhmichandra against the original defendant Late Shri Ghasi Ram on the grounds enumerated in Section 12 (1) (a), (b), (f), (m) and (o) of the M.P. Accommodation Control Act, 1961 (for short "Act of 1961"). During the pendency of the suit, original plaintiff Lakhmichandra and Defendant Ghasi Ram, both had died. Therefore, their respective LRs were brought on record.
2 S.A.No.10/20044. As per the pleadings contained in the plaint, suit shop was required by the plaintiff for his son Ashok Kumar to start the business of Jewellery (Sarrafa). It was further alleged that defendant has illegally sublet the suit shop to one Suresh Kumar S/o Sitaram and therefore,sub tenancy has been created. Beside that, other grounds regarding arrears of rent, sub letting, bona fide requirement, illegal construction and illegal possession were also alleged.
5. Appellant/defendant/tenant submitted the written statement denying the averments of the plaint. It was pleaded that the suit shop alongwith two rooms were let out by the plaintiff to the registered partnership firm Balchand Ghasiram in Samwat 2012 (Year 1955) and defendant never parted with any part of the suit shop to anybody. Firm was dissolved in year 1980 and after its dissolution as per the family settlement, suit shop went into share of Suresh Kumar S/o Sitaram. It is pleaded that Ashok Kumar, who is already running the grocery business (Kirana) has no bona fide requirement for the suit shop. Earlier, he filed a suit for eviction of suit shop situate at Kathali Bazaar, Sironj against his tenant Hiralal. In that suit, Ashok Kumar pleaded that the suit shop is required by him to start the business of General Store. Now after getting the suit shop evicted from his tenant -Hiralal, instead of starting the business of General Store in the suit shop, he filed instant suit, whereas, that shop is still lying vacant. Two other shops adjacent to the suit shop are also lying vacant. Therefore, Ashok Kumar does not have any bona fide requirement for the suit shop. He is also running business of Grocery (Kirana) since the lifetime of his father, therefore, he does not have any bona fide requirement for the suit shop.
6. After framing of issues, trial Court recorded the statements of witnesses of both the sides and through judgment and decree dated 18/9/2001, though has refused to grant the decree for eviction to plaintiffs/respondents/landlord on the ground of Section 12 (1) (a), (m) and (o) of the Act of 1961 but granted the decree for eviction on the ground of Section 12 (1) (b) and (f) of the Act of 1961.
7. Against the judgment and decree passed by learned trial Court, appellant/defendant preferred first appeal before the First Appellate Court but suffered. Therefore, appellant/tenant/ defendant is before this Court under Section 100 of CPC.
8. The appeal was heard on admission by this Court on 3 S.A.No.10/2004 2/5/2007 and was admitted on following substantial questions of law:-
"(i) Whether, the bona fide need of plaintiff Ashok Kumar to start his business at Sarrafa is vitiated as he has already got vacant possession of the shop from another tenant Hiralal to fulfill his bona fide need ?
(ii) Whether, the finding of sub tenancy of the Courts below is perverse ?"
9. According to learned counsel for the appellant difference between the desire and bona fide need exists in the present case. Landlord may have desire but his shifting of stand is not bona fide because while seeking eviction of shop of another tenant Hiralal, grounds which raised were for starting the business of General Store / Grocery store. Now in the present case, he raised the bona fide need for staring business of Jewellery Shop. On the basis of judgments rendered by Apex Court in the case of Mattulal Vs. Radhelal,1975 JLJ 1, Ram Dass Vs. Ishwar Chander & Ors., AIR 1988 SC 1422 and Deena Nath Vs. Pooran Lal, 2001 (5) Supreme 100 and, he contends that the requirement of the suit shop does not appear to be bona fide and in good faith. Therefore, trial Court as well as first appellate Court erred in coming to the conclusion about the bona fide requirement of landlord and while passing the impugned judgments and decree ignoring the fact and legal position that plaintiff did not prove bona fide requirement. While advancing arguments on Substantial Question of Law No. 2, mainly in respect of grounds available under Section 12 (1)
(b) of the Act of 1961, learned counsel for the appellant submits that the present appellant Rama Bai's husband-Late Shri Ghasilal was one of the partners of partnership firm which took the shop on rent and through Copy of register of firm in respect of M/s Balchand Ghasi Ram Saraf (D/2), document of family settlement (D/3) and the statement of Lakhmichandra (Ex. D/8), learned counsel for the appellant asserts that originally suit shop was taken on rent by firm Balchand Ghasi Ram and this aspect has been admitted by original plaintiff Lakhmichandra in statement in some other case. Suresh Kumar is son of Sitaram, who is real brother of Ghasi Ram, who was the partner of firm Balchand Ghasiram and after death of Sitaram, Suresh Kumar exclusively remained in possession of the shop, therefore, Suresh Kumar was not sub tenant and he was well within his rights to occupy the suit shop 4 S.A.No.10/2004 because under the settlement deed, the shop went into the share of Suresh Kumar and since the shop was given on rent to a partnership firm, therefore, if partnership firm dissolves and tenancy rights goes in favour of one person then sub tenancy is not created. He relied upon the decision of Hon'ble Apex Court in the matter of Amar Nath Agarwalla Vs. Dhillon Transport Agency, 2007 (4) SCC 306. He also submits that as per Section 105 of CPC, appellant is entitled to re- agitate the issue of non-joinder of necessary parties again despite the fact that the said issue was earlier decided by the trial Court and attained finality when matter went into civil revision. Therefore, by the effect of Section 105 of CPC, appellant can still take the ground of non- joinder of necessary parties in her arguments. Principle of res judicata does not binds the High Court from any order of lower Court. He relied upon the decision of this Court in the matter of Shyamacharan Raghubar Prasad Vs. Sheojee Bhai Jairam Chattri and Anr., AIR 1964 MP 288, to buttress his submission. Through the different pleadings of written statement and evidence of Ashok Kumar (PW/1), Suresh Chand, PW/2, Bhaiyalal, PW/3 and Suresh Kumar, DW/1, Hiralal, DW/2 and Govind Prasad, DW/3, appellant tried to assert that neither the bona fide requirement has been proved nor it is proved that Suresh Kumar was a sub tenant. He was the tenant and necessary party.
10. On the other hand, learned counsel for the respondents/landlord opposed the prayer made by the appellant/tenant. It is submitted that trial Court as well as appellant Court discussed the issue of bona fide requirement and thereafter held that plaintiff has bona fide need for Sarraffa business. According to him, landlord cannot be forced to do his business at any particular and at non suitable place. It is the bona fide requirement of the plaintiff which has to be adjudged on the fact situation of the case. He relied upon the decisions of Jaladi Suguna (Deceased) through LRs Vs. Satya Sai Central Trust and Ors., 2008 (8) SCC 521, Radheshyam Vs. Ramakant (Deceased) through LRs., (2004) 2 MPLJ 332, Kailash Chandra Trivedi Vs. Punjab National Bank Ltd. And Ors., 2000 (2) JLJ 379, Ragavendra Kumar Vs. Firm Prem Machinery and co., 2001 (1) JLJ 186 and Rajendra Kumar and Ors., Vs. Kasturi Bai and Ors., 2009 (1) MPLJ 5 S.A.No.10/2004 413 and submits that landlord is the best judge of his requirement.
11. It is further submitted by learned counsel for the respondents that issue Nos. 8 and 9 were decided by the trial Court as preliminary issues and vide order dated 11/1/1990, it was found that suit shop was not given to Balchand Ghasiram on rent, (issue No. 8) and Suresh Kumar was not a necessary party (issue No. 7). Same was challenged in Civil Revision No. 13/1990 but the same was dismissed on 22/10/1991, whereby, it has been held that suit shop was given to Ghasi Ram and not to firm Balchand Ghasiram and Suresh Kumar is not necessary party. It is an admitted fact that Suresh Kumar is in possession of the suit shop and issue No. 4 framed in this regard, has been discussed by the trial Court in detail, wherein, trial Court has given finding that defendant has given the suit shop to Suresh Kumar with the permission of plaintiff, therefore, the present appellant had no cause of action to prefer the appeal.
12. Heard learned counsel for the parties at length and perused the record.
13. This appeal was admitted by this Court vide order dated 2/5/2007 on following substantial questions of law:-
"(i) Whether, the bona fide need of plaintiff Ashok Kumar to start his business at Sarrafa is vitiated as he has already got vacant possession of the shop from another tenant Hiralal to fulfill his bona fide need ?
(ii) Whether, the finding of sub tenancy of the Courts below is perverse ?"
14. As regards substantial question of law No. 1.
The aforesaid question is in respect of bona fide requirement of plaintiff to start the business for his son Ashok Kumar for jewellery purpose.
15. Trial Court discussed the issue of bona fide requirement in detail and thereafter held that the suit shop is located at Sarraffa Bazaar (Jewellery market of the area), and in the vicinity several jewellery shops are there. In the said area for this purpose, no other shop is available to Ashok Kumar to start the business of jewellery. The shop of Hiralal, which got vacated was only 4 x 2 sq. ft. in measurement and that too at some different area -Kathali Mohalla. One more shop was also available at Kathali Bazaar but same was also very small in 6 S.A.No.10/2004 measurement. The said small shops cannot be treated as adequate space available to Ashok Kumar for starting the business of Jewellery and that too those shops are located in some other area then jewellery market. Therefore, said suit shops could not have been termed as alternative accommodation for business purpose. The product should commensurate with the market in which it is sold. Although, brothers of Ashok Kuamr are doing business of General Store but they are in separate shops. He wants a bigger shop so that some shops may be clubbed together for getting sufficient area for jewellery business, because nowadays, big space (showroom) is required to start jewellery business. Other witnesses deposed in favour of plaintiff and also supported the plaintiff's line. It is settled in law that landlord is the best judge in his requirement in deciding the question of bona fide requirement. {See: Akhileshwar Kumar and Others Vs. Mustaqim and Others, (2003) 1 SCC 462 and R.C. Tamrakar and another Vs. Nidi Lekha 2001 (8) SCC 431, (2001) 8 SCC 431}.
16. Therefore, bona fide requirement of the plaintiff cannot be put to microscopic test, it is to be inferred from the fact situation. Even if, plaintiff is doing one business of General Store, even then, he is entitled to start another business and that cannot be a ground to deny the plaintiff possession of accommodation rented out earlier.
17. The said findings were affirmed by the appellate Court in detail in para 39 to 52. The Appellate Court discussed in detail taking into consideration various pronouncement of Apex Court as well as this Court and thereafter came to the conclusion that plaintiff has bona fide requirement to start the business of jewellery and no other suitable accommodation is available to start the business. The said findings of facts recorded by both the Courts below cannot be dislodged on the basis of submissions of the appellant in limited scope of interference,that too, merely on substantial legal questions, therefore, in the considered opinion of this Court, respondents/plaintiffs/landlord has bona fide requirement of suit shop to start the business of jewellery. Same is proved by plaintiff through his evidence. Substantial Question of law No. 1 is answered accordingly.
18. As regards substantial question of law No. 2:-
It is the question regarding sub tenancy in which trial Court taken into consideration the facts as well as earlier litigation 7 S.A.No.10/2004 undertook between the parties,wherein, trial Court decided the question of sub-tenancy by deciding issues No. 8 and 9 against the present appellant; wherein, it has been decided the the suit shop was given to Ghasi Ram and not to the firm Balchand Ghasiram and Suresh Kumar was not necessary party. The said order was put to challenge by appellant in Civil Revision No. 13/1990. Even after passing of order in Civil Revision, if appellant raised the ground by taking aid of Section 105 of CPC even then the said ground has to be seen whether it deserves appreciation or not. Trial Court independently also dealt with the issue in hand. It was found that the suit shop was given to Ghasi Ram in 1955; whereas, the firm was created in year 1969. The said fact is clear from Ex. D/1, which is a rent agreement of year 1955 and Ex.
D/2 filed by DW/1-Suresh Kumar, in which the date of creation of partnership firm is 24/12/1969. No other document is available on record to suggest that the suit shop was given to the partnership firm. Trial Court as well as appellate Court have given very specific findings of facts regarding this aspect in detail, therefore, it is clear that suit shop was given to Ghasi Ram on rent and therefore, as per decisions Tansukhdas Chhaganlal Vs. Smt. Shambai and Anr., AIR 1954 Nagpur 160, Trilok Singh Vs. Ramprasad, 1971 MPLJ 232 and Satyabhamadevi Chowbe Vs. Ramkishore Pandey, 1974 MPLJ 906, it is clear that in the family settlement property of somebody else cannot be included. Therefore, from findings given by trial Court as well as first appellate Court, it is clear that Suresh Kumar could not have been given the possession of suit shop by Ghasi Ram or his family members as per the family settlement. He is to be treated as sub-tenant inducted without permission of landlord.Therefore, on basis of 12 (1) (b) of the Act of 1961 also, appellant is liable to be evicted because Suresh Kumar is a sub tenant and therefore, deserves to be evicted. The substantial question of law No. 2 is answered accordingly.
19. The judgments referred by the appellant are not applicable in the present fact situation as they move in different factual realm. When the trial Court and appellate Court on the basis of appreciation of evidence came to the conclusion that suit shop was given to individual and not firm, then appellant cannot get any advantage from said judgments.
20. In the considered opinion of this Court, substantial question 8 S.A.No.10/2004 of Law Nos. 1 and 2, both go in favour of respondent/plaintiff/tenant and suit for eviction as decreed by Courts below is affirmed.
21. Resultantly, appeal preferred by the appellant fails and is hereby dismissed.
(Anand Pathak) Judge jps/-
JAI PRAKASH SOLANKI 2018.03.15 10:35:23 +05'30'