Madhya Pradesh High Court
Hakimuddin Saifi vs Prem Narayan Barchhiha on 9 July, 1997
Equivalent citations: 1997(2)MPLJ360, 1998 A I H C 2025, (1997) 2 MPLJ 360, (1997) 2 RENCR 568, (1998) 2 RENCJ 438
JUDGMENT S.C. Pandey, J.
1. This appeal is filed by the defendant Under Section 100 of the Code of Civil Procedure against the judgment and decree dated 6-9-1989 passed by the First Additional Judge to the Court of District Judge, Raipur in Civil Appeal No. 32-A/87, arising out of judgment and decree dated 27-1-1987 passed by Second Civil Judge, Class-II, Raipur in Civil Suit No. 29-A/86.
2. Only the facts relevant for determination of this appeal are stated as follows. The respondent filed Civil Suit No. 29-A/86, for ejectment from the suit shop, against the appellant Under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (henceforth 'the Act'). The relevant pleadings of respondent in respect of ground for eviction under the aforesaid section are given in paragraph No. 3 of the plaint. It was stated therein that the respondent was the owner and landlord of the suit shop. He had an unemployed son whose name was Dinesh Kumar. The respondent required the suit shop bona fide for opening a provisions store for his son. The respondent claimed that he had no reasonably suitable alternative non-residential accommodation of his own for starting the business of his son. In this appeal, we are not concerned with other reliefs claimed by the respondent and, therefore, they are not mentioned here.
3. The appellant did not deny that the respondent was the owner of the suit shop. The rest of the allegations made in paragraph No. 3 of the plaint were denied as 'not true and false'. It was further pleaded that suit shop was not required by the respondent bona fide for starting the business of his son. It was denied that Dinesh Kumar was unemployed and he was likely to start the business of running a provisions store. It was emphatically denied that the son of the appellant was not in a position to start a provision store without the suit shop being vacated or his son had no suitable accommodation of his own for starting the business.
4. The trial Court on these pleadings framed the following relevant issues amongst others :-
(a) "Whether the plaintiff required the suit shop bona fide for the business of his son?
(b) Whether the plaintiff had any other suitable accommodation for the business of his son?"
5. The trial Court dismissed the suit holding that the respondent did not require the suit shop bona fide for starting the business of his son. However, it gave finding on issue '(a)' in favour of the respondent.
6. In appeal, filed by the respondent, the Court below has reversed the judgment and decree of the trial Court, on the ground that the suit shop was bona fide required by him for starting the business of his son, and granted a decree of eviction in favour of the respondent without recording any finding on issue No. (a).
7. This appeal was admitted by this Court on 2-2-1990 on the following substantial question of law :-
"Whether the Court below was justified in granting a decree Under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961, under the facts and circumstances of the case?"
8. Since, the learned counsel for the respondent had argued that question of law framed by the Court is not specific, this Court frames an additional question of law involved in this case in exercise of its powers Under Section 100(4) of the Code of Civil Procedure, as follows :-
"Whether respondent has proved all the ingredients of Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 in order to get a decree of eviction against the appellant?"
9. This appeal was argued by the learned counsel for the parties on the basis of the above question of law framed by this Court. The connected Second Appeal No. 409/89 involves the common questions of facts and law and, therefore, the judgment in this appeal shall govern the disposal of that appeal too.
10. In this appeal, it was argued by the learned counsel for the appellant that the respondent cannot get a decree Under Section 12(1)(f) of 'the Act', unless he proved that requirement was bona fide for starting the business of his son and also that there was no other reasonably suitable accommodation for non-residential purpose in possession of the respondent for starting the business of Dinesh Kumar, the son of the appellant. It was argued that the lower appellate Court recorded finding only in respect of the bona fide requirement of respondent but did not discuss if he had any alternative accommodation for starting the business of his son. No decree could be passed by the lower appellate Court on this piecemeal finding. It was argued that since the trial Court had dismissed the suit, the appellant had no right of filing the appeal against an adverse finding. It was, therefore, duty of the lower appellate Court to record a finding on the alternative accommodation of the appellant. In such a situation, this Court was entitled to record a finding on the important limb of Section 12(1)(f) of 'the Act' in exercise of its powers Under Section 103 of the Code of Civil Procedure. The learned counsel for the appellant argued that it is clear from the admission of the respondent, who was examined as PW-1, in paragraph No. 16 of his deposition, that his two tenants had vacated the accommodation, occupied by them. One of the tenants, had vacated the accommodation occupied by him, a few months before the filing of the suit and the other during the pendency of the suit. Since, the respondent did not disclose in his plaint that one accommodation was vacant, it could not be said that his claim was bona fide. Similarly, the other accommodation which fell vacant during the pendency of the suit, could also be sufficient for the need of his son. The learned counsel for the appellant, therefore, urged that from the fact that respondent did not even disclose to the Court that one accommodation fell vacant it should be held that the claim is not bona fide. The other limb of the argument was that in any case it was not proved that respondent did not have an alternative accommodation prior to filing of the suit as there was one accommodation vacant with the respondent. It was further urged that since the other accommodation fell vacant during the pendency of the suit and the same was let out by the respondent showed that suit shop was not required by respondent for starting the business of his son.
11. The learned counsel for the respondents argued that trial Court gave a finding that the respondent admitted that there was no alternative shop with the respondent on the admission of respondent that plaintiff had no shop other than the suit shop. In view of this admission, it was not necessary to record any other finding. The learned counsel for the respondent further argued that so far as the bona fide requirement is concerned, the lower appellate Court has found the claim of respondent bona fide. The learned counsel for the respondent referred to a decision of the Supreme Court in the case of Sarvate T. B. v. Nemichand, reported in 1966 MPLJ 26, and argued that finding of fact is not liable to be disturbed in second appeal. The learned counsel for the respondent sought to argue that Court was not concerned with any other accommodation which fell vacant prior to filing of the suit or thereafter, but with only non-residential accommodation. It was urged that once the respondent stated in his examination-in-chief that he had no alternative shop in his possession, he had discharged the burden and onus shifted upon the respondent to prove by leading evidence the alternative accommodation was suitable for the purpose of the respondent.
12. In order to decide the controversy between the parties, it is necessary to find out the ingredients of Section 12(1)(f) of 'the Act'. Section 12(1)(f) of 'the Act' reads as under :-
Section 12(1)(f) "that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is owner thereof or of any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;"
A fair reading of Section 12(1)(f) of 'the Act' reveals the following ingredients, namely :-
(i) That the suit accommodation must be non-residential or in other words it must be let for non-residential purpose.
(ii) That, the aforesaid accommodation must be required bona fide.
(iii) That, bona fide requirement must be for starting or continuing the business.
(iv) That the above named business must be for the business of the landlord, or any of his major sons, or unmarried daughters, as the case may be.
(v) That, either the landlord or the person on whose benefit the landlord holds the accommodation must be the owner of the same.
(vi) That, the landlord or the person mentioned hereinbefore has no reasonably suitable non-residential accommodation of his own in his occupation in the city or town where the accommodation is situate.
13. Thus, the landlord/plaintiff must plead and prove all these ingredients of Section 12(1)(f) of 'the Act' in order to succeed in a suit for eviction on that ground. Section 12(1) of 'the Act' requires a landlord to file a suit for eviction only on any one or more of the grounds mentioned in that section notwithstanding anything contained in any law to the contrary. The Supreme Court overruling a decision of a Division Bench of this Court consisting of S. P. Bhargava and G. P. Singh, JJ. in the case of Smt. Chandan Bai v. Surjan, reported in 1972 MPLJ 216 = AIR 1972 MP 106, has held in the case of Roshan Lal v. Madan Lal, reported in AIR 1975 SC 2130, that a Court cannot pass a decree of eviction unless any one of the grounds mentioned in Section 12(1) is proved in a contested suit or a suit compromised by the parties. In a suit between a landlord and tenant, the compromise decree for eviction is assailable as a nullity if it does not appear either from the decree itself or from the material on record that landlord could get a decree for eviction under any of the grounds Under Section 12(1) of 'the Act' or the tenant did not concede that he was liable to be evicted on any of the grounds for eviction raised by the plaintiff Under Section 12(1) of 'the Act'. The view of G. P Singh, J. who spoke for the Division Bench that there was no such mandate Under Section 12(1) of 'the Act' as was Under Section 13(1) of Delhi and Ajmer Rent Control Act, 1932 for not passing a compromise decree without the existence of a ground Under Section 12(1) of 'the Act' was not accepted. The Supreme Court after reproducing Section 12(1) of 'the Act' in AIR 1975 SC 2130 (supra) at page 2133, paragraph No. 4, observed as follows :-
Para 4 ".....Thereafter grounds (a) to (p) have been enumerated. On a superficial reading of the provision aforesaid it would appear that the inhibition related to the filing of the suit only. No suit can be filed for eviction of a tenant except on one or more of the grounds enumerated in Section 12(1). In Sub-sections (2) to (11) of Section 12 certain conditions have been engrafted to show under what circumstances and order for the eviction of tenant cannot be passed in relation to some of the grounds enumerated in Sub-section (1). Reading the section as a whole and remembering the beneficial object of the Act for the protection of a tenant based upon public policy, we do not find much difficulty in bringing the section at par with other similar State Statutes and holding as a matter of construction that no decree for the eviction of a tenant from any accommodation can be passed except on one or more of the grounds mentioned in Section 12(1). A Bench of the Madhya Pradesh High court in Smt. Chandan Bai's case 1972 MPLJ 216 = AIR 1972 M.P. 106 (supra) seems to have taken too literal a view of the section when in paragraph 5 of the judgment it says "There is nothing in Section 12 of the Act or any other provision which prevents the tenant in vacating the accommodation in spite of the fact that none of the grounds mentioned in Section 12 exists. Similarly, there is nothing in the Act which may prevent the tenant in agreeing to vacate the accommodation in future."...........
It is clear from the decision of the Supreme Court that a Court cannot pass a decree for eviction of a tenant whether it be compromise ex parte, or contested decree unless a ground Under Section 12(1) of 'the Act' is made out. Section 12(1) of 'the Act' has been treated as a mandate upon the Court not to pass a decree otherwise. The following paragraph of that decision brings out the ratio of that case (Page 2133, Paragraph 5):-
Para 5 : "In order to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. Even when the trial proceeds ex parte, this is so. If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenant's eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law."
14. Once this legal position is accepted, it is the duty of the Court to see if the landlord is to be awarded a decree Under Section 12(1)(f) of 'the Act' then he must succeed on the strength of his pleadings in the plaint mentioning all the facts which necessarily constitute the ingredients of section. The plaintiff must mention the fact in his plaint, if he had an alternative vacant accommodation, and that this alternative accommodation was not reasonably suitable for the purpose for which he is seeking eviction. For it, it is necessary that the claim of landlord must be bona fide. The words bona fide mean that claim should be in good faith. Good faith puts an additional burden on the plaintiff that he should approach the Court with clean hands. If a landlord has a vacant accommodation, he must show to the Court that it is not reasonably suitable for which eviction is sought. The use of the word 'reasonably suitable non-residential accommodation' in Section 12(1)(f) of 'the Act' cannot give any right to landlord to suppress the fact that he had a vacant accommodation on the ground that it is residential in nature. This is a question of fact to be determined in each case whether the accommodation is reasonably suitable for non-residential purposes. So long an accommodation is being used for particular purpose, it retains that character. No suit can be filed to evict a tenant to whom the house is let out for residential purpose on a ground that it is required for non-residential purpose or which is let out for a non-residential purpose on a ground it is required for residential purpose. It is obvious that the character whether an accommodation is residential or non-residential will depend upon the intention for which it is let out or sometimes when it is let out for composite purposes, then by the dominant intention for which it was let out. However, when an accommodation is vacant, its character becomes neutral. Its character can be determined only by its likely future use. "The Act' does not define residential or non-residential accommodation. Therefore when a plaint is filed either Under Section 12(1)(e) or 12(1)(f) of 'the Act', the landlord must disclose the vacant accommodation in his possession in order to prove that the alternative accommodation is not reasonably suitable for the purposes he is seeking eviction. He can definitely say that looking to the use for which the alternative accommodation was being put, it cannot be used for non-residential purposes in a case Under Section 12(1)(f) of 'the Act' or for residential purposes in case Under Section 12(1)(e) of 'the Act'. However, this fact cannot be determined a priori by the landlord.
15. Reverting to the facts of the case, the evidence of PW-1 Prem Narayan his evidence in examination-in-chief is to the effect that he required the suit shop for starting the business of his son and he had no alternative accommodation in his name or that of his son. A fair reading of this part of evidence in paragraph No. 6 of the statement may reveal that the appellant had no accommodation in his name for starting the business of his son. However, in cross-examination, the witness admitted in paragraph No. 15 of his deposition that there were two tenants in the same premises. They pay Rs. 100/- (Rupees Hundred) and Rs. 150/- (Rupees One Hundred and Fifty) per month. The one let for Rs. 100/- was vacated in February, 1985 (i.e. prior to filing of the suit), the other was vacated in October, 1985 (i.e. after filing of the suit). No reexamination was done by the counsel for the respondent to prove that either of two accommodations was not suitable for the business of the son of the respondent. No attempt was made to show that these vacant accommodations could only be used for residential purposes and, therefore, they were not reasonably suitable. The learned counsel for the respondent was at pains to argue the words implies ^blh edku esa nks fdjk;snkj gS*that the word ^edku* was used in the sense that they were residential. It appears to this Court that the word ^edku* was used only in the sense of a building or premises. The learned counsel for the respondent sought to argue that the appellants himself had admitted in the last line of his cross-examination that the respondent had no shop except the suit shop. The lower Appeal Court was impressed by this admission and had held that in view of this admission, the respondent had proved his case. In the opinion of this Court, the admission of the appellant was only regarding the use of accommodation as a shop at the time of his deposition. No attempt was made on the part of the counsel for respondent to put question to witness if the two vacant accommodations individually or jointly could be utilised for opening the shop for the son of the respondent. The respondent would then have proved his case if the appellant admitted that these accommodations could not be so utilised. However, having let out, the two vacant accommodations, the case of the respondent is not proved in absence of any evidence on record for what purpose they were let. Even if, we assume the best situation for the respondent, for which there is no foundation in the evidence, that the vacant accommodations were being used by the previous tenants for residential purpose his case is not advanced. However, when they were vacated the character of these accommodations became neutral. Therefore, the burden of proof was upon the respondent that these accommodations could not be used for non-residential purpose. Even assuming that they were let out by respondent for residential purpose, later, even though, there is no foundation for this assumption too, in the evidence on record, the respondent failed to prove that they could not be suitably used for starting the business of his son. The landlord cannot take advantage of his previous or subsequent act of letting out to label a building as residential or non-residential. A vacant building is space covered by four walls. It could be put to either use, residential or non-residential or even for composite purpose. Therefore, use of word 'non-residential' in the phrase that 'the landlord or such person has no reasonably suitable non-residential accommodation of his own' Under Section 12(1)(f) of 'the Act' had no added significance. The reason is that an alternative accommodation which is being used for residential purposes by another tenant at the time of filing of the suit retains its character as such and there can be no claim made by a 'tenant' facing an eviction decree Under Section 12(1)(f) of the 'the Act' that it is non-residential in nature or vice versa in the case of eviction Under Section 12(1)(e) of 'the Act'. However, the moment it is vacant, it is merely an accommodation, and it would be a question of fact, to be decided in each case, if such accommodation can be used for non-residential or suitable for residential purpose only. Therefore, there is no escape from the conclusion that the respondent did not lead any evidence that two accommodations, which were vacant, could not be utilised by him for the business of his son. Here, it may be remembered that it was for the landlord to say about his requirement because so far as his requirement is concerned, it is he and he alone, who has special knowledge of his requirements. Section 106 of the Evidence Act comes into operation.
16. For all these reasons given hereinbefore, this Court comes to the conclusion that respondent was unable to prove that the two alternative accommodations which were vacant could not be used for starting the business of his son. The Court further comes to the conclusion that a landlord cannot suppress the fact if he had any vacant accommodation on the ground it is residential when he files suit for eviction Under Section 12(1)(f) of 'the Act'. He must come with a plea that there is a vacant alternative accommodation with him but it is not reasonably suitable as it cannot be used for non-residential purpose. If he proves this fact along with other ingredients of Section 12(1)(f) of 'the Act', he shall succeed. Otherwise his suit is liable to be dismissed. His claim would not be 0bona fide if he does not plead the fact regarding vacant accommodation. It is for the Court to determine as a question of fact if the alternative accommodation could reasonably be used for non-residential purpose. The landlord himself cannot be arbiter of his own case to the effect to a particular vacant accommodation is not reasonably suitable for the business for which the accommodation is sought to be vacated from the custody of tenant. This is the function of the Court to determine it objectively from evidence on record.
17. For the reasons aforesaid, the decision cited by the learned counsel for the respondent reported in 1966 MPLJ 26 (supra) is not applicable to facts of this case. Moreover, where the lower appeal Court does not give a finding necessary for decision of the case, this Court can record a finding Under Section 103 of the Code of Civil Procedure.
18. The answer to the two questions framed by this Court is that respondent was unable to prove all the ingredients of Section 12(1)(f) of 'the Act' and his claim that he bona fide required the suit shop cannot be sustained because he suppressed the fact that he was in possession of an alternative vacant accommodation in the same building, and further he let out the vacant accommodation to other tenants without proving that the two accommodations singly or jointly could not be utilized for the purpose for which he was seeking eviction of the appellant.
19 The result is that this appeal succeeds and is allowed. The judgment and decree passed by the lower appellate Court so far it relates to eviction of the appellant is set aside and that of trial Court is maintained. The suit for eviction Under Section 12(1)(f) of 'the Act' against the appellant accordingly fails. No costs throughout.