Madhya Pradesh High Court
Dev Kumar Asati vs Shiv Prasad Sahu on 27 March, 2018
Equivalent citations: AIRONLINE 2018 MP 1449
(1)
Second Appeal No. 693/2016
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Single Bench : Hon'ble Shri Justice J.K.Maheshwari)
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Second Appeal No. 693/2016
Dev Kumar Asati
-Vs-
Shiv Prasad Sahu
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Shri Dinesh Upadhyay, Advocate for the appellant/defendant.
Shri D.K. Melani, Advocate for the respondent/plaintiff.
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JUDGMENT
Jabalpur, Dated : 27.3.2018
1. This appeal under Section 100 of the Code of Civil Procedure has been filed by the defendant/tenant challenging the judgment and decree dated 1.3.2016 passed by Second Additional District Judge, Jabalpur in Civil Appeal No. 3-A/2015 confirming the judgment and decree dated 8.10.2013 passed by Fourteenth Civil Judge, Class-I, Jabalpur in Civil Suit No.83- A/2013 granting decree of eviction in favour of the plaintiff on the ground of bonafide need of the non residential premises.
2. It is not in dispute that the defendant/appellant is a tenant of a shop @ Rs.1300/- per month situated in Plot No. 194 as per the boundaries specified in the map filed along with the suit on the basis of a rent agreement dated 15.8.1991. The original (2) Second Appeal No. 693/2016 lessee of the said plot was Om Prakash Shrivastava, which has been received on transfer to the plaintiff. Thereafter the shops were constructed and the defendant/appellant is one of the tenant therein. On the date of filing of the suit i.e. 31.1.2011, the defendant was in arrears of rent. The plaintiff has pleaded that he requires the suit shop, to run a Photo Studio business wherein the defendant is the tenant and at present he is running the said business in a tenanted shop taken from his son, however, the suit shop is required bonafide. It was also pleaded that on account of non payment of the arrears of rent within due time and due to bonafide need of the shop, suit premises is required to which no reasonably suitable alternative accommodation of his own is available with the plaintiff in the township of Jabalpur.
3. The defendant filed the written statement inter alia contending that the suit shop is in between two tenanted shops given to one Sunil Sharma. Because the plaintiff wants to take more rent from the defendant comparing with Sunil Sharma, however, pleading the flimsy ground of bonafide need to start his business of Digital Colour Lab, this suit has been preferred. It was also pleaded that the plaintiff is having other reasonably suitable alternative accommodation, therefore, also the need of the plaintiff is not bonafide, hence denied.
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4. Learned trial Court on appreciating the evidence recorded the finding that the need of the plaintiff is bonafide inter alia holding that the plaintiff is running a Photo Studio business in a tenanted shop owned by his son to which he is making payment of rent. The Court has further held that the suit shop is required bonafide to the plaintiff to run Photo Studio business for which he does not possess any other reasonably suitable alternative accommodation of his own, however, decreed the suit on proving the bonafide need of plaintiffs but because the rent was paid on filing the suit, therefore, decree on the ground of Section 12(1)(a) has been denied.
5. On filing the first appeal by the defendant/appellant, it has also been dismissed confirming the above said findings though application under Order 6 Rule 17 of the Code of Civil Procedure acquiring the alternative accommodation in the same premises at first floor has been allowed and permitted to insert the said plea in the written statement. The appellate Court further held that the suitability of the accommodation acquired subsequently comparing with the suit required bonafide, cannot be judged holding it suitable by the Court particularly when the available vacant premises is at the first floor to which possession has been received by the plaintiff during pendency of the suit. However, the need of the plaintiff cannot be satisfied on acquiring of the (4) Second Appeal No. 693/2016 said accommodation even at subsequent stage. In view of the foregoing, the appellate Court has dismissed the appeal filed by the defendant confirming the finding of the trial Court. Being aggrieved by the same, the present appeal has been preferred.
6. Learned counsel for the defendant/appellant contends that it is a case wherein the need of the plaintiff cannot be said to be bonafide particularly he is running his Photo studio in a shop of his son and the plea that he is tenant therein is flimshy, in fact it is of his own land purchased by him in the name of his son. In such circumstances, the finding regarding bonafide need of the plaintiff to which he is not having any other reasonably suitable alternative accommodation of his own, is vitiated and substantial question of law is involved in this appeal, therefore, this appeal may be admitted for final hearing.
7. On the other hand, learned counsel representing the plaintiff/respondent has argued in support of the finding as recorded by the trial Court as well as the appellate Court to contend that the finding recorded by the trial Court either on the point of bonafide need or not having reasonably suitable alternative accommodation of his own is a finding of fact which do not warrant interference by this Court in this second appeal, therefore, this appeal may be dismissed.
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8. After having heard learned counsel for the parties and on perusal of the finding recorded by the trial Court as well as the appellate Court, the tenancy of the defendant is not in dispute. It is apparent that the plaintiff is running a Photo Studio business in a shop taken on tenancy from his son and paying rent to him by his son on the tenancy. The plaintiff has pleaded to start his own business in the premises owned by him wherein the defendant is running his Grocery business. The trial Court as well as the appellate Court recorded the finding that the adjacent suit shops were given to other tenants on tenancy prior to filing of the suit, therefore, on the date of filing of the suit the bonafide need of the plaintiff to the suit shop in question to run the Digital Colour Lab business has been found proved. The lower appellate Court as well as the trial Court recorded the finding that the plaintiff does not have any other reasonably suitable alternative accommodation of his own available within the township of Jabalpur, however, the need of the plaintiff to run his business in the shop in question is bonafide and the defence has been disbelieved, therefore, decree on the ground of bonafide need has been granted in his favour.
9. During pendency of the appeal, an application seeking amendment has been filed inter alia contending that in the same (6) Second Appeal No. 693/2016 premises, at first floor the Bank of Maharashtra was in the tenancy and the Bank has vacated the said premises, however, it may be reasonably suitable to run the Digital Colour Lab business by the plaintiff, however due to said subsequent development, the finding as recorded by the trial Court may be set aside. Learned lower appellate Court has allowed the said amendment and appreciated the pleading of proposed amendment, which is admitted by the plaintiff. The plaintiff has admitted that he has acquired the possession of the premises at the first floor wherein the office of Bank of Maharashtra was running but it would not satisfy the need of the plaintiff regarding the shop which is situated at the ground floor, in such circumstances, the appellate Court confirmed the finding as recorded by the trial Court.
10. After hearing learned counsel for both the parties, in my considered opinion the said finding recorded by both the Courts below is neither illegal nor perverse warranting interference in this appeal. It is to be noted here that the plaintiff want to run Digital Colour Lab business in the suit premises which belong to him to which he does not have any reasonably suitable alternative accommodation of his own within the township. At present he is running a Photo Studio in the premises belong to his son on tenancy. The documents to that effect are available on (7) Second Appeal No. 693/2016 record. In addition the subsequent development regarding vacation of the premises at first floor by the Bank of Maharashtra also do not satisfy the need of the plaintiff requiring the shop at the ground floor in the same premises. In such circumstances the finding of fact on the point of bonafide need and not having reasonably suitable alternative accommodation despite subsequent development recorded by the lower appellate Court do not suffer from any illegality warranting interference in this appeal. It is to observe here that finding on the point of bonafide need is a finding of fact which cannot be interfered with. In this regard guidance can be taken from judgments of the Apex Court in Damodar Lal Versus Sohan Devi and others reported in (2016) 3 SCC 78; Syeda Rahimunnisa Versus Malan Bi (Dead) by Legal Representatives and another reported in (2016) 10 SCC 315; Daya Nand Versus Virmo Devi reported in (2017) 13 SCC 292; Dagadabai (Dead) by Legal Representatives Versus Abbas Alias Gulab Rustum Pinjari reported in (2017) 13 SCC 705.
11. In addition to the aforesaid, it is to be noted here that the plaintiff is the best judge regarding suitability of the accommodation for running his business out of the other accommodations available to him. In this regard neither the Court nor the defendant can dictate to the plaintiff to start his (8) Second Appeal No. 693/2016 business at the premises which has fallen vacant during pendency though as discussed above it cannot be said to be suitable which is available at first floor. The said view fortifies from the judgment of this Court in the case of Radheshyam Versus Ramakant (deceased) through LRs reported in 2004(2) MPLJ 332 and also from the judgment of Supreme Court in the case of Ragavendra Kumar Versus Firm Prem Machinary and Co. reported in AIR 2000 SC 534; Prativa Devi (Smt.) Versus T.V. Krishnan reported in (1996) 5 SCC 353; Maganlal Son of Kishanlal Godha Versus Nanasaheb son of Udhaorao Gadewar reported in (2008) 13 SCC 758. In view of the foregoing discussion, the appeal filed by the defendant is bereft of any merit and is hereby dismissed at admission stage because no substantial question of law arises for determination in this appeal.
12. At this stage, learned counsel representing the defendant/appellant prays for time to vacate the suit premises for an year, which is opposed by the other side. In the interest of justice, on considering the rival contentions and relying upon the judgment of the Supreme Court in the matter of Ghisalal M. Agrawal (Dead) through L.Rs. Vs. Rameshwar @ Ramu Jawaharlal reported in 2012 (II) MPWN 129, it would be appropriate to grant sometime to the defendant/appellant to (9) Second Appeal No. 693/2016 vacate the premises in which he is running the Grocery shop. However, it is directed that the defendant shall vacate the suit premises on or before 31/12/2018 subject to compliance of the following conditions :-
(I) The appellant shall file an affidavit before the Executing Court indicating that he shall deposit the regular rent on or before 15th day of every month and pay the arrears of rent, if any, within a month.
(II) The appellant shall also furnish an undertaking before the Executing court that he shall deliver the vacant possession of the suit premises to the plaintiff/respondent on or before 31/12/2018 and shall not part with the possession of the suit premises creating third party right.
(III) An undertaking shall also be furnished by the appellant/ defendant to the effect that if the suit premises is not vacated on or before the said date, in that event, he shall pay the compensation at the rate of Rs.1000/- per day to the respondent/plaintiff in addition to rent. (IV) The said affidavit and undertaking shall be submitted within two weeks from the date of receipt of certified copy of this order.
(V) On violation of any of the conditions enumerated herein above, the respondent/plaintiff would be entitled to get executed the decree in accordance with law. (VI) The appellant/defendant may be entitled to ask the compensation in view of the provision (10) Second Appeal No. 693/2016 of Section 12(6)(b) of the Madhya Pradesh Accommodation Control Act, 1961 during the execution proceedings.
(VII) In view of the foregoing discussion, in my considered opinion, the appeal filed by the appellant/defendant is devoid of any merit and no substantial question of law is involved for adjudication in this appeal, hence dismissed at admission stage.
(J.K.Maheshwari) Judge PB Digitally signed by PRADYUMNA BARVE Date: 2018.04.02 12:21:14 +05'30'