Madhya Pradesh High Court
Manoharlal Gopilal Pande vs Dr. Abdul Mazid Khan on 26 June, 1996
Equivalent citations: 1997(1)MPLJ232, 1997 A I H C 1008, (1997) 1 RENCR 606, (1997) 1 RENTLR 153, (1997) 1 MPLJ 232
JUDGMENT S.C. Pandey, J.
1. This is an appeal under section 100 of Code of Civil Procedure, 1908 against judgment and decree, dated 12-7-1988, passed by Shri A. Khakha, Additional Judge to the Court of District Judge, Rajnandgaon, in Civil Appeal No. 24-A/86 arising out of judgment and decree, dated 27-7-1986 in Civil Suit No. 41-A/81 passed by Shri B. L. Jatwa, Civil Judge Class II, Rajnandgaon.
2. The respondent/landlord filed a suit for eviction against the appellant on the ground that the suit house is required bona fide by him for the purpose of his residence as well as for doing medical practice. Initially it was pleaded in the plaint that the appellant was residing in the middle block of the suit house, shown in the plaint. The entire house consisted of three small blocks and the respondent pleaded that he required the entire three blocks for his residence as well as for running a dispensary. It was also pleaded that besides the three blocks shown in the Schedule-A to the plaint, the respondent had no alternative suitable accommodation within the limits of Rajnandgaon Municipality. It was also pleaded that at the time of filing the suit, the appellant was occupying the middle block and one more block was in occupation of another tenant whereas one of the blocks was vacant.
3. It was further pleaded that the appellant was occupying the middle block, shown by red colour in the map, for residential purposes. The tenancy of that house began from 15th of every month and was liable to be terminated on 14th of next month. Since the appellant did not vacate the house despite the notice dated 18-2-1981, the suit was filed on 6-3-1981 after terminating the tenancy. The respondent also claimed the rent at the rate of Rs. 35 per month from 15-2-1981, charges for serving the legal notice on the appellant and other incidental charges. Thus a claim for Rs. 60/- was made apart from eviction.
4. The appellant denied the claim of the respondent. It was pleaded by the appellant that respondent was resident of Durg where he had opened a dispensary at Nandani Road, Bhilai. It was stated in the written statement that the respondent was having a good medical practice at his dispensary, situate at Nandani Road, Bhilai. He has also constructed a house at Durg. In view of the aforesaid facts, it was pleaded by the appellant that the requirement pleaded by the respondent was not bona fide as there was no desire on the part of the respondent to shift to Rajnandgaon. It was also pleaded that apart from the block in occupation of the appellant both the blocks in the suit house were vacant and the respondent was in possession of both the blocks. It was further pleaded that since the respondent was consultant of Bhilai Steel Plant, he was not likely to shift to Rajnandgaon. He was already in possession of two blocks. Out of them, one block was vacated by the tenant only a few months back, but the respondent did not start his dispensary in one of the blocks. It was also pleaded that the respondent also did not shift to Rajnandgaon after getting possession of these two blocks and this fact also showed that the respondent does not need the suit house in good faith. For these reasons, it was prayed that suit is liable to be dismissed.
5. The trial Court decreed the suit holding that the suit house was required bona fide by the respondent for his residence and he had no alternative accommodation of his own within the municipal limits of Rajnandgaon. It was also held that the respondent was entitled to a decree for the amount claimed by him. In appeal against the eviction, the learned Additional District Judge had confirmed the finding of the trial Court holding that the suit house was required bona fide by the respondent for his residence. He has also held that the respondent was unable to meet the evidence of Dr. Abdul Mazid Khan (PW-1), who has stated in his evidence that he required the block in question for his practice and the two blocks were required for his residence and also that of niece (sister's daughter); who was a widow.
6. The appeal was admitted by this Court on 20-2-1989 on the following substantial question of law :
"Whether in the facts and circumstances of the case, the Courts below erred in law in passing a decree for eviction in favour of the plaintiff respondent on the grounds specified in clauses (e) and (f) of sub-section (1) of section 12 of the Accommodation Control Act?"
7. It appears that the respondent has not come with properpleadings regarding the suit accommodation. It is not in dispute that the middle block is the real suit accommodation which is occupied by the appellant for the purposes of his residence. It was, therefore, incumbent upon the respondent to plead and prove bona fide need regarding this accommodation and this accommodation alone. The respondent should have treated the remaining two blocks as alternative accommodation and pleaded that those two blocks are not suitable for him. His plea should have been directed towards the middle block which would be the accommodation in dispute in the suit for the reason, it is this accommodation which was required by the respondent from the appellant. The ground under section 12(1)(e) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as the Act') could be raised in respect of this accommodation alone. Section 12(1)(e) reads as under :
"that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned."
An accommodation has been defined as follows under section 2(a) of the Act :
"accommodation" means any building or part of a building, whether residential or non-residential and includes, -
(i) any land which is not being used for agricultural purposes;
(ii) garden, grounds, garages and out-houses, if any, appurtenant to such building or part of the building;
(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;
(iv) any furniture supplied by the landlord for use in such building or part of building;"
It would be thus clear that "Accommodation" includes a part of any building and, therefore, the accommodation under section 12(1)(e) of the Act was the middle block in this case, occupied by the appellant. The rest of the two blocks would, therefore, be alternative accommodation to the block, occupied by the appellant. Therefore, the respondent could not have pleaded that he required the entire three blocks for his residence as well as for his practice and he had no alternative accommodation of his own apart from a Nazul plot as pleaded by him. In relation to the suit accommodation, these two blocks could be alternative accommodation. Admittedly at the time of filing of the plaint, one of the blocks was already vacant and this accommodation could be used for residence of the respondent, if he wanted to shift to Rajnandgaon. However, it is not in dispute that another block was also vacated by the tenant. Therefore, by the time the evidence was led that the respondent had two alternative accommodations except the middle block. Each of the block of the same size. The respondent had not specifically stated in the plaint why he needed two blocks for residence and one block for his practice. At the time when the evidence was led, the respondent came with a new plea not taken by him in the plaint that one of the blocks, required by him, was for his niece (sister's daughter), who was a widow. It can also be argued, in the alternative, that the respondent, in his evidence, stated that his niece (sister's daughter) was dependent upon him although he did not specifically plead that one portion of the block was required by him for any member of his family dependent upon him. In absence of any specific plea taken by the respondent on this point, the appellant was not expected to lead any evidence on this issue. However, it is clear from the pleadings that the respondent has pleaded his own bona fide requirement so far as the middle block is concerned. It is not his case that the middle block was required for any body else. We have already noticed that the other two blocks in possession of the respondent would be the alternative accommodation and each block would be equally suitable for the purpose of the respondent. After having pleaded his own bona fide requirement, the respondent could not be permitted to say that alternative accommodation in shape of either of the blocks in his possession is required by a member of his family as defined under section 2(e) of 'the Act' and he shall give it to her. The landlord is not permitted to plead his bona fide requirement in this manner in view of specific language of section 12(1)(e) and 12(1)(f) of 'the Act'. It would destroy the right of the tenant to say that the landlord was unable to plead and prove that alternative accommodation is not suitable. The only plea open to a landlord having an alternative accommodation in his possession in the city is to plead and prove that the alternative accommodation is not suitable. Otherwise 'no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned' shall become otiose in section 12(1)(e) of the Act. Such interpretation of a section is to be avoided.
8. The witness Dr. Abdul Mazid Khan (PW-1) stated in evidence that the middle block was required for his residence and that one vacated by the tenant recently would be used by the niece for her residence and the third block, already in occupation at the time of the filing of the suit, would be used for his dispensary. The witness also admitted in his evidence that he had considerable practice at Durg, but due to the competition he wanted to shift to Rajnandgaon. He also stated that his wife was already employed as a teacher and in order to justify his bone fide need the witness stated that when he got vacant possession of the house in question, he would get his wife transferred to Rajnandgaon or she would submit her resignation, if need be.
9. It has already been noted by this Court that the respondent has not come to the Court with clean hands. In his plaint he should have confined his pleading to the middle block which was required by him bona fide for his residence. It appears to this Court the very fact that the appellant took the plea, as if the entire three blocks were the suit accommodation, shows that he wanted that the vacant block, already in his occupation, should not be noticed as an alternative accommodation by the Court. In the context of the fact that a plea for vacant possession against the tenant under section 12(1)(e) and 12(1)(f) of the Act must be bona fide, that is to say, in good faith. The pleadings of the respondent show that the need is not bona fide. It is unfortunate that this fact was not noticed by the Courts below at the very inception. Nor was it noticed by the appellant. Therefore, the suit was fought on the basis as if the requirement of the entire building to the respondent was for composite purpose, that is to say, residential as well as non-residential. This error gave the respondent a chance to manipulate his evidence. This Court, therefore, comes to the conclusion that even the pleadings of the respondent show that need of the respondent was not bona fide in respect of the suit house.
10. That apart, the evidence on record also shows that respondent manipulated the evidence without an express plea that a part of the alternative accommodation was required for the residence of his niece, who was a widow. The definition of the "member of the family" under section 2(e) of the Act does not include a niece (sister's daughter) expressly. However, she would come within the expression 'any other relation dependent on him'. There was no express plea in the plaint that the vacant accommodation was required by the widowed niece of the respondent. Thus the respondent manipulated the evidence in order to suit the circumstances when the alternative block fell vacant during the pendency of the suit. However, the appellant (sic) did not take any express plea in this behalf. He was not able to explain how the two blocks, already in his possession, would not be sufficient for the members of his family and his niece. The evidence on record also shows that the wife of the respondent was already in employment and she was a teacher at Durg. The respondent had a permanent house at Durg and he was practicing at Nandani Road, Bhilai. It is very difficult to accept the plea of the respondent that his requirement for the suit house could be bona fide. On the other hand, it appears to this Court that the Courts below have overlooked the fact that he had already two blocks in his possession. He could have occupied one of the blocks along with his wife and his niece and could have started practice in the other block. There is no explanation given by the respondent for not adopting this course except that his niece would be living in a separate block.
11. This Court has negatived the case of the respondent in the foregoing paragraph, even on the assumption that the respondent could be permitted to plead and prove that the alternative block was required for his niece. It appears to this Court that even if we take most favourable view of the matter in favour of the respondent, there is no escape from the conclusion that the respondent failed to plead bona fide need expressly regarding the blocks in his occupation and the purpose for each block would be required by him. Then only the appellant could meet the case of the respondent.
12. However, it is made clear, that the considered view of this Court is, that a landlord is not permitted to plead and prove that the residential accommodation in his occupation in the city would be delivered to a member of the family and, therefore, his need for the suit-accommodation is bona fide. It would be travesty of justice to allow the landlord to part with the alternative accommodation so that he may evict the tenant.
13. Faced with these circumstances, the learned counsel for the respondent filed an application in this Court I.A. No. 1873/96 for striking out the defence of the appellant. According to the counsel for the respondent, the appellant was a habitual defaulter and he was not depositing the rent every 15th of the month when it was due. On the other hand, the counsel for the appellant filed an application dated 3-3-1996 (I.A. No. 2425/96). The application was for condoning the delay for late payment of rent in certain cases. The counsel for the appellant urged that it is true that in certain cases, the rent was delayed, but the appellant has also paid the rent in certain cases in advance. There was some mistake in calculating the date of payment and, therefore, there was delay. On these grounds, the counsel for the appellant sought the indulgence of this Court for getting the delay condoned, under section 13(1) of the Act.
14. The learned counsel for the parties were heard on this point in great detail. The attention of this Court was brought to number of decisions of Supreme Court reported in Ram Murti v. Bhola Nath, AIR 1984 SC 1392, Shyamcharan Sharma v. Dharamdas, AIR 1980 SC 587, Miss Santosh Mehta v. Om Prakash, AIR 1980 SC 1664 and Smt. Kamla Devi v. Sh. Vasdev, AIR 1995 SC 985. It has been contended by the counsel for the respondent that the defence of the appellant is liable to be struck out because he has made a default in payment of rent after service of summons. According to the counsel for the respondent the delay could not be condoned automatically. The learned counsel for the respondent has referred to a decision of Supreme Court reported in B.C. Kame v. Nemi Chand Jain, AIR 1970 SC 981.
15. It is clear from the decision reported in Shyamcharan's case (supra) that the Court has discretion to condone the delay and power not to strike out the defence. It was held in this case thus :
"We think that section 13 quite clearly confers a discretion, on the Court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by section 13(1). If the Court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by section 13(1), the Court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence."
The decision of the Supreme Court was followed in Ram Murti's case (supra). In this case, the decision cited by the learned counsel reported in B. C. Kame's case (supra) was also considered. After considering this case in paragraph 14 of the judgment, the Supreme Court ultimately came to the conclusion that the view taken in Shyamcharan's case (supra) was correct. The latest decision of the Supreme Court reported in Smt. Kamla Devi's case (supra) also approves the decision reported in Shyamcharan's case (supra). Thus it is well established that whether to strike out of the defence or not is a matter of discretion with the Court before which the application for condonation of delay or extension of time is made. In the view of this Court, it is not necessary that at appellate stage the appellant is required to make an application for extension of time and then deposit the rent. If we take this view, then it would cause great inconvenience to the tenant. All that has to be seen is whether the default of the tenant was totally mala fide or the delay in deposit has caused some injury to the landlord requiring the Court to take the extreme step of striking out the defence.
16. After going through the application and material on record, this Court comes to the conclusion that since the appellant has already deposited the entire rent and the delay caused in payment of rent is not such as would cause a material injury to the respondent, the delay in payment of rent is liable to be condoned and it is accordingly condoned.
17. Even apart from that, it will be apparent that even if this Court had struck out the defence of the appellant, the respondent would not have derived any advantage from that fact. This Court has not considered the defence for allowing the appeal filed by the appellant. The very pleadings of the appellant and the evidence of Dr. Abdul Mazid Khan have disproved the case of the respondent. After all the appellant was entitled to cross-examine the respondent as per decision reported in Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162 to the extent he could disprove the case of the respondent. Only that part of the cross-examination has been considered by this Court which would disprove the case of the respondent apart from his examination-in-chief.
18. For the reasons aforesaid, this appeal succeeds and is allowed. The decree passed by the Courts below is set aside and the suit filed by the respondent is dismissed. There shall be no order as to costs of this appeal.