Madhya Pradesh High Court
Shabbir Hussain Gulam Hussain vs Rubab Bai Inayat Hussain on 2 January, 1991
Equivalent citations: 1992(0)MPLJ449
JUDGMENT V.S. Kokje, J.
1. The appellant is a tenant of the respondent in the suit accommodation situated in House No. 14, Street No. 2, Maharani road, Indore. Admittedly the suit premises were let out for residential purpose. The respondent plaintiff brought a suit for ejectment of the appellant from the suit premises on the grounds under Sections 12(1 )(a) and (d) of the M.P. Accommodation Control Act, 1961 (hereinafter called 'the Act'). This suit was registered as C.O.S. No. 272-A/84 in the Court of IXth Civil Judge, Class II, Indore. After trial the suit was dismissed on 25-11-1986 on both the counts. In Civil Regular Appeal No. 1 of 1987-A, the Vlllth Additional Judge to the Court of District Judge, Indore reversed the judgment and decree and passed a decree on the ground under Section 12(l)(d) of the Act alone. This is a second appeal against that judgment.
2. On 17-1-1990, the appeal was admitted on the following substantial question of law :
"Whether the facts of stitching by the wife of tenant-defendant-appellant, writing of accounts by the defendant-appellant and taking of meals by the defendant-appellant and his wife in the suit accommodation would constitute residential use of suit-accommodation and disentitle the plaintiff-respondent of decree for eviction under Section 12(l)(a) of the M.P. Accommodation Control Act, 1961 ?"
3. I have heard Shri K. N. Puntambekar, learned counsel for the appellant and Shri M. G. Upadhyaya, learned counsel for the respondent. Shri Puntambekar, learned counsel for the appellant contended that the first appellate Court had reversed the judgment and decree of the trial Court without discharging its duty to properly reappreciate the evidence on record. Relying on the decision in T.D. Gopalan v. Commr., Hindu Religious and Charitable Endowments, Madras, AIR 1972 SC 1716 the learned counsel submitted that the trial Court had given detailed and cogent reasons for not accepting the testimony of the plaintiff's witnesses and it was incumbent on the first appellate Court to give reasons as to why it was deferring from the view taken by the trial Court. The learned counsel further argued that the plaintiff did not examine herself in the case though she must have a personal knowledge about the facts in issue as she resided nearby the tenant. For this purpose Shri Puntambekar relied on the decision of Bombay High Court in Nanalal Goverdhandas & Co. and Ors. v. Smt. Samratbai Lilachand Shah, AIR 1981 Bom. 1. Shri Puntambekar further contended that clause (d) of sub-section (1) of Section 12 of the Act has to be distinguished from the clause (c) thereof. According to the learned counsel the grounds provided in these two clauses do not overlap but are independent of each other. According to him, clause (d) relates to total non-user of the premises by the tenant for a period of 6 months prior to the filing of the suit, whereas clause (c) relates to change of user by the tenant. He further submitted that in the facts of the present case there was actually no case made out under Section 12(l)(d) of the Act. It has not been proved that the premises were totally out of use. What the first appellate Court has found, is that it was not being put to residential use because food is not being cooked in the premises and the tenant has ceased to sleep in the tenanted premises. The learned counsel further submitted that the judgment of the first appellate Court is full of conjectures and surmises and is not based on legal evidence or lawful inferences.
4. Shri M. G. Upadhyaya, learned counsel for the respondent tried to defend the judgment and decree of the first appellate Court. According to him it was not necessary to examine the plaintiff as she could not have direct knowledge of the facts on which the suit was filed. According to him the plaintiff was a Pardanasheen lady and could not have the knowledge of the activities of the defendant. According to Shri Upadhyaya, onus to prove that the accommodation was being used for the purpose for which it was let out had shifted to the defendant because he and his family was residing in some other house. Shri Upadhyaya further submitted that looking to the normal human conduct, it is not possible that the defendant could take meals in the tenanted house and would work there leaving his children in the other house. Finally Shri Upadhyaya stated that in any case the findings of the first appellate Court were findings of fact, which could not be disturbed, even if, they were taken to be erroneous.
5. In paragraph 5 of the plaint the allegations as regards ground under Section 12(l)(d) of the Act were made. It has been alleged therein that the defendant had withdrawn his possession of occupation of the suit premises since 17-9-1981 and was not using the premises for the purpose for which they were let out. Reply to this on behalf of the defendant has been of total denial. The plaintiffs son has been examined on behalf of the plaintiff as (P.W. 1). In paragraph 3 of his statement, he has stated that the defendant has vacated the accommodation on 17-9-1981 and had gone to live in house No. 151, Nayapura, Indore. In his cross-examination, in paragraph 6, he again states that the defendant was not using the suit premises. He has also denied the suggestion that the defendant's wife was using the premises for sewing and tailoring. He has also stated that he did not know whether the defendant comes to the premises during the day, as he himself does not remain in his house from morning till night. The plaintiffs witness No. 2, Ali Mohd. has also deposed that the house is not being used by the defendant for the last 4-5 years i.e. since 1981-1982. This witness also does not know if the defendant comes on the premises during day time. The defendant in his own statement has denied that he had locked the suit premises but has admitted that he does not sleep in the premises but goes to the house in Nayapura for the purpose. He also deposes that as his children were grown up the space in the house falls short of his requirement and for this purpose he has taken on rent one room in Nayapura. He further deposed that his wife uses the suit premises for her sewing and tailoring work. He also deposes that he takes meals in the suit premises only and that the suit premises are used during the day time.
6. In this state of evidence, there is no doubt that the original plea of the landlord that the premises have been locked and the defendant had ceased to use them, has not been proved. Because of this, the landlord/plaintiff had changed the line of arguments and taken a stand that activities being carried on by the defendant amount to change of user and, therefore, the premises have been proved to have been used for a- purpose for which they were not let. The trial Court had found that, it has not been proved that the premises were not used for residence by the defendant and, further it was not proved that the premises were not so used without a reasonable cause. The first appellate Court, however, has ignored the basic pleadings and issues raised thereon, and has not looked at the case with a view to find out as to whether the plaintiff has succeeded in proving the case she has set up. It was not the case of the plaintiff that the premises were being used during the day time only and as the defendant was not cooking his food there and was not sleeping there, it amounted to change of user. The case of the plaintiff, plainly, was that the premises were not being used from 17-9-1981 and were kept locked. It is clear from the evidence that the plaintiff has failed to prove this as a fact and now she is trying to make out a case from the evidence on record, actually from the evidence of defendant himself, that he was not using the premises for sleeping or for cooking food but his wife was using the premises during the day time for sewing and tailoring. This approach cannot be said to be a right approach to the case.
7. The learned appellate Judge had relied on commentary in a book on Accommodation Control Act for the purpose of holding that sleeping is one of the most essential operation for residence. Even this definition, enough not authoritative and exhaustive, propounds that residence connotes all the major activities of life. Using of the premises only for sitting and doing household chores is also an activity of life which would fall within the meaning of residence. Though sleeping and cooking may be major activities of residence, it could not be said that a person does not reside in a place where he does not cook his food or does not sleep. The concept of residence adopted by the first appellate Court is clearly perverse and not founded on any rational basis. The learned first appellate Judge has held that the work of sewing done by the defendant's wife in the premises would be non-residential use of the premises. I fail to understand how activities which are part of the daily routine of a house-wife can be said to be non-residential activities. A house-wife has to sew clothes, wash and iron the clothes and to do so many other things which, if done on commercial scale, would amount to non-residential activities, only because a house-wife washes and irons clothes, it cannot be said that she runs a laundry, and her house is not converted into a washerman's establishment. Similarly, if a house-wife does some sewing and tailoring in her house, she does not convert the house into tailoring shop. It is not permissible to draw such wide and wild inferences by generalising things like this. To decide, whether there is a change of user or not, intention of the parties has to be seen. If an activity like tailoring and sewing is carried out in residential premises, which is totally unconnected with the residence, then it may amount to change of user, if the landlord proves this clearly after specifically alleging so in the pleadings. In the present case the landlady started with the pleadings that the premises were totally closed and ended up by banking upon the defendant's statement that he was using it not for cooking his food or sleeping therein but for sewing and such connected things done by his wife. There is, therefore, nothing on record to show that intention of the tenant was of abandoning use of premises or of changing its user from residential to non-residential.
8. Moreover, it appears that clause (d) of sub-section (1) of Section 12 of the Act has no application to the cases of change of user, which are covered by clause (c) of sub-section (1) of Section 12 of the Act. For ready reference these two clauses are reproduced hereunder : -
Section 12. Restriction on eviction of tenants. - (1) Notwithstanding anything..........
(a)....
(b)....
(c) that the tenant or any person residing with him has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the interest of the landlord therein :
Provided that the use by a tenant of a portion of the accommodation as his office shall not be deemed to be an act inconsistent with the purpose for which he was admitted to the tenancy;
(d) that the accommodation has not been used without reasonable cause for which it was let, for a continuous period of six months immediately preceding the date of the filing of the suit for the recovery of possession thereof;
9. It would be clear from a bare reading of the aforesaid provisions that they are not intended to overlap. Absurd results will follow, if cases of change of user are taken to be covered by clause (d) also. For the purpose of clause (c), even if, change of user is shown or the change of user is 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 covered by clause (d) also, then it would only be necessary to prove that the change of user was without reasonable cause and it was there for continuous period of 6 months immediately preceding the date of the filing of the suit. The Legislature cannot be taken to have intended to provide two grounds of eviction on the same facts; one requiring a stricter and additional proof of further facts and the other not so requiring. In a similar situation a Single Bench of the Bombay High Court in Kasturchand Panachand Doshi and Ors. v. Yeshwant Vinayak Sainkar and Anr., AIR 1980 Bom. 270, observed that the grounds mentioned in Section 13(l)(a) and 13(l)(k) of the Bombay Rent Act do not overlap. These are the grounds equivalent to grounds under sections. 12(1 )(c) and 12(1 )(d) in the M.P. Accommodation Control Act. It was observed that one ground covered the cases of change of user and the other a total non-user and they do not overlap in the sense that a case of change of user could not be brought within the pale of Section 13(1)(k) of the Bombay Rent Act, which is equivalent to Section 12(1)(d) of the M.P. Accommodation Control Act. For these reasons also the suit in the present case must fail because the plaintiff has not been able to prove that the premises were not used without a reasonable cause for a period of 6 months preceding the filing of the suit. In the view I have taken, the evidence on the point of change of user has to be ignored. On the contrary, if the case is judged from the point of view of Section 12(l)(c) of the Act, there are neither pleadings about the nuisance being created or likelihood of landlady's interest being adversely affected in the case. Even on the basis of the evidence in the case, ground under Section 12(1 )(c) of the Act can also not be said to have been proved.
10. In the result, the judgment and decree of the first appellate Court deserve to be set aside and are hereby set aside. The decree of the trial Court dismissing the suit is restored. The respondent shall pay to the appellant, costs incurred in both the Courts below as also in this Court. Counsel's fee Rs. 250/- only.