Madhya Pradesh High Court
Smt. Aleamma vs Seth Meghraj on 29 September, 1992
Equivalent citations: AIR1993MP165, 1993(0)MPLJ706, (1993) MPLJ 706, AIR 1993 MADHYA PRADESH 165, 1993 (2) RENCR 658, (1993) 2 RENCR 499, (1993) JAB LJ 569
JUDGMENT Gulab C. Gupta, J.
1. This is tenant's appeal Under Section 100, C P.C. challenging legality of a decree of eviction dated 26-11-84 passed by Shri D. S. Tain, 5th Addl. District Judge, Jabalpur in Civil Appeal No. 5-A of 1983 affirming the judgment and decree dated 24-1-1983 passed by Tenth Civil Judge Class II Jabalpur in Civil Suit No. 74-A/83 directing eviction of the appelhmt from the suit-house.
2. It is not in dispute that the appellant is a tenant of our house No. 1 owned by the respondent on a monthly rent of Rs. 21/-having taken the same for residential purpose. It is also not in dispute that she used to live in the said Premises with her husband. Her husband has., since last about 5-6 years of the date of the filing of the suit, started running a Homoeopathic dispensary at the premises. The respondent brought the suit on the ground that the appellant being a servant of P&T Department had been allotted a Govt. Quarter where she has shifted and thereafter the tenanted premises is being used exclusively for Homoeopathic Clinic. There were other ground, also but they are not material for the present appeal. The appellant denied that there was any change in the user or there was non-user of the piemises, she further denied that she had been allotted any Government quarter and asserted that she was still living in the tenanted premises. The appellant however admitted that her husband was running the Homoeopathic Clinic during the day but submitted that this did not amount to change in user of the premises. The learned trial Judge, on appreciation of evidence, adduced by the parties, held that the husband of the appellant was using the premises for running the Homoeopathic Clinic which amounted to change in user without sufficient cause. This, according to the learned trial Judge was a ground Under Section 12(1)(d) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the Act) justifying eviction of the appellant. The appellant challenged legality of the aforesaid judgment and decree by filing an appeal before the learned Addl. District Judge. The respondent however remained satisfied and did not challenge the decree passed by the trial Court either by filing his own appeal or a cross-objection. The learned lower appellant Court, on consideration of evidence, held that the Homoeopathic Clinic run by the appellant's husband was in the whole house. The learned Judge also held that the appellant had been allotted a Govt. Quarter and had shifted there. The learned lower appellate court therefore not only affirmed the decree passed by the learned trial Court but also added that the appellant was liable to be evicted Under Section 12(1)(c) of the Act. It is this decree which is impugned in the present appeal.
3. The first submission of the learned counsel for the appellant is that the trial Court having passed the decree Under Section 12(1)(d) of the Act and negativing the claim Under Section 12(1 )(c) of the Act, the lower appellate Court acted outside its jurisdiction in passing a decree Under Section 12(1)(c) of the Act also without there being any appeal Or cross-objection by the respondent.
4. The grievance, in the opinion of this Court is fully justified. The two provisions are separate and independent and deal with two different situations. While Section 12(1)(c) of the Act deals with inconsistent user, Section 12(1)(d) of the Act furnishes ground for eviction on the ground of non-user. This difference has been clearly explained in a recent judgment of this Court in Shabbir Hussain Gulam Hussaih v. Rubab Bai Inayat Hussain, 1992 MPLJ 449. Under the circumstances, it is open to a landlord to request eviction of his tenant on either or both the grounds but in each case he has to specifically plead and prove those grounds. As far as a Section 12(1)(d) of the Act is concerned, this Court in Bhagwandas v. Kailashnarayan, AIR 1991 MP 191 : 1991 MPLJ 801, has explained that the landlord has to plead and prove that the accommodation had not been used for the purpose for which it was let out and that the non-user was continuous for a period of six months immediately preceding the date of the institution of the suit. When the landlord has duly established these requirements, onus shifts on the tenant to establish that his default which has rendered him liable to eviction, was condonable by the Court because he has a reasonable cause. This Court, explaining the aforesaid, has laid down as under:--
"II. The Rule of Strict pleadings, I have already held in Lalta Prasad, 1986 MPRC.1 249 : 1986 JLJ 713, is the Rule which must govern actions instituted to enforce statutory rights under Special Statutes; the landlord is bound to plead and prove his entitlement within four corners of the statutory provision invoked to enforce right pleaded. In any cases, the scope of the entitlement contemplated under Clause (d) also bears critical analysis. To entitle him to decree for eviction of the tenant under Clause (d) the landlord has to plead and prove that the accommodation had not been "used" for the purpose for which it was let out and that the non-user was continuous for a period of six months immediately preceding the date of the institution of the suit. When had duly established that requirement, contemplated under Clause (d), onus will shift to the tenant to establish that his default which rendered him liable to eviction was condonable by the Court because that had a "reasonable cause". The word "used" which occurs in Clause (d) is relatable evidently to the purpose as is indicated by the expression for which it was let directly following it, gave for interpretation of the expression "reasonable cause". Although in Clause (d) the word "purpose" does not figure, the intention of the legislature was to limit the disqualification with reference to "residential" and "non-residential" purposes because those two expressions are used in Clause (e)(f) which immediately follow Clause (d). The importance of user with reference to "purpose" is also indicated by the proviso to Clause (c);
whether let out for residential or non-residential purpose, partial use of the accommodation for "Office" is made permissible thereunder. The necessity of interpreting Clause (d) in its context and setting in obvious and for that reason, the inter-relation of Clauses (c), (d), (e) and (f) cannot be overlooked. Under all these four clauses, under different circumstances tenant eviction is contemplated on fulfilment of the requirements separately and specifically prescribed respectively under those clauses. Circumstances pertaining to user of premises may indeed be various; no particular or single test can be conclusive of the disqualification."
The aforesaid distinction and the view of pleading is based on Supreme Court decision in M/s. Babu Ram Gupal v. Mathra Dass, AIR 1990 SC 879. Earlier the Supreme Court in Vora Rahimbhai Haji Hasanbhai Popat v. Vora Sunderlal Manilal, AIR 1986 SC 174 (supra), has also brought out these requirements with reference to similar provision in Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
5. As regards inconsistent user covered Under Section 12(1)(c) of the Act, it is incumbent on the landlord to specifically allege that the tenant was not using the premises for the purpose for which it was let out to him. It is however not change in user that matters. The user in order to be actionable under this provision must not only be inconsistent with the purpose for which the tenant was admitted to the tenancy but should also substantially and adversely affect the interest of the landlord. This Court in Shabbir Hussain Gulam Hussain v. Rubab Bai while dealing with the contents of this provision, has observed that:--
"For the purpose of Clause (c), even if, change of user is shown or the change of user of proved, it has further to be proved that because of such change of user, a nuisance has been created or that such change of user is likely to affect adversely substantially the interest of the landlord. "If the change of user is taken to be.........(Para 9) Under the circumstances, the aforesaid two clauses of Section 12(1) of the Act furnish two different causes of action and hence it is the obligation of the landlord to clearly plead and prove his case either under one or the other provision. If he pleads inconsistent user Under Section 12(1)(c) of the Act, he will have to plead and prove all ingredients thereof. Under the circumstances, the facts of this case will have to be judged in the light of the aforesaid law. As a necessary consequence it must be held that it was not within the jurisdiction of the learned lower appelalte Court to also pass the decree Under Section 12(1)(c) of the Act when such a decree has not been passed by the trial Court and there was no appeal or cross-objection by the respondent-landlord in that behalf. The mistake seems to have been committed because the learned Judge was of the opinion that the two provisions are overlapping. Now that, the legal position has been clarified by this Court, the view of the lower appellate Court cannot be accepted.
6. In spite of it, the trial Court had passed the decree on a finding that the husband of the appellant was running a Homoeopathic Clinic. Since the premises was let out for residential purpose, this should without doubt constitute inconsistent user of the tenanted premises if it is established that Homoeopathy practised by the appellant's husband was as a business or profession. If however, Homoeopathy practice was a social service mission it would not amount to any change in user. In any case, the view of the learned trial Court that this was a ground covered Under Section 12(1)(d) of the Act is erroneous and cannot be accepted as clarified earlier. The aforesaid provision requires non-user for at least six months immediately before the date of filing of the suit and that too without any reasonable cause. Simply because the husband uses the premises for Homoeopathy practice, the aforesaid requirement would not be fulfilled. Under the circumstances, it was a case covered Under Section 12(1)(c) of the Act and not Under Section 12(1)(d) of the Act. Obviously the learned trial Judge made a mistake in that behalf. Since it was a mistake not of substance but of mentioning a wrong provision of law, the same could have been corrected by the learned lower appellate Court by mentioning the correct provision i.e. Under Section 12(1)(c) of the Act. In such a situation, if the decree had been changed as one Under Section 12(1)(c) of the Act, the Court would not have found any mistake in it. The learned lower appellate Court has how ever not done so. It has, on the contrary, added a new ground to pass a decree without there being any appeal or cross-objection to that extent. The impugned decree cannot be sustained.
Even otherwise, this Court finds no justification for any decree Under Section 12(1)(d) of the Act. As clarified earlier, a landlord must, before he becomes entitled to evict the tenant under this clause, establish that the house was not in use at least six months prior to the date of the suit. There is no such plea in the plaint. There is also no evidence to that effect. Indeed, the respondent was not clear about it. Though by way of an amendment on 22-3-82, he pleaded that the appellant had been allotted a Govt. quarter in the P & T Colony Ranital, Jabalpur, he did not give the date nor did he allege that after the allotment of the Govt. quarter, the appellant-tenant had shifted. In case, the respondent-plaintiff wanted to plead the case Under Section 12(1)(d) of the Act, it was obligatory for him to allege that the appellant had shifted to the new quarter and the same is not in use for more than six months. Since there was no such plea, no decree Under Section 12(1)(d) could have been passed.
8. Under the circumstances, the only question requiring consideration is whether a case for inconsistent user has been made out in accordance with law. It is common ground that the premises was let out for residential purpose. It is also not in dispute that the appellant's husband is running a Homoeopathic Clinic at the house. This was, however, not originally pleaded as a ground but was included by way of amendment permitted on 7-8-80. The amendment only states that the appellant's husband is also running a Homoeopathic Clinic in the suit-house and, therefore, the appellant has become liable for eviction Under Section 12(1)(c) of the Act. This plea, in view of the aforesaid legal analysis of the two provisions, is confused and incomplete. If the respondent-plaintiff wanted to plead a case Under Section 12(1)(d) of the Act, it was necessary for him to further alleged that the premises was not in use for a continuous period of six months immediately preceding the date of the filing of the suit. There is no such plea and therefore the respondent could not have succeeded on the basis of this incomplete allegation. These allegations cannot be accepted as satisfying the requirements Under Section 12(1)(c) of the Act inasmuch as, it is not stated as to how the appellant's husband's running a Homoeopathic Clinic is inconsistent with the purpose for which the tenancy was created. Then, it was also obligatory for the respondent to plead and prove other requirements of this provision. Obviously the pleading is incomplete. Homoeopathy practice can be as a hobby and also as a business. If it is done as a business, then it would without doubt be an inconsistent user of the prentises but if it is done only as a past time or a hobby, it would not amount to inconsistent user. There is no evidence whatsoever adduced by the respondent in this behalf. His witness Papadas (PW 2) says nothing on this question. He has only stated that the appellant's husband was running a Homoeopathic Clinic. To the same effect is the evidence of Anoop Jain (PW 3) and Noor Mohammad (PW 4). None of these two witnesses has ever used the services of the appellant's husband and therefore, said nothing. Noor Mohammad (PW 4) claims to have consulted appellant's husband but has said nothing about the payment made to him or any money demanded by him. His evidence indicates that the appellant's husband does Homoeopathy practice as a hobby or social service and nothing more. This, in the opinion of this; Court, would not amount to inconsistent user of the suit-premises, a tenant and members of his family are entitled to own their hobbies and pursue the same by remaining a tenant, By pursuing their hobbies they do not change the terms of the tenancy or make the use of the premises inconsistent with the contract of tenancy. It is a matter of intention as clarified by this Court and hence answer to the question depends on facts and circumstances of the case. Apparently, therefore, the Courts below have not applied their mind to the facts of the case in proper legal context and for that reason, their judgments cannot be sustained.
9. Appeal succeeds and is allowed by seting aside the impugned judgment and decree and dismissing the suit of the respondent-plaintiff. However, in view of the peculiar facts and circumstances of the case, the parties will bear their own costs of this appeal,