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Judgment
The appellants/defendants being aggrieved by judgment and decree dated 19.05.2006 passed by 9th A.D.J, Jabalpur in Civil Appeal No. 107A/2005 arising out of judgment and decree dated 09.09.2005 passed by 3rd Civil Judge, Class I, Jabalpur in Civil Suit No. 108-A/2003 wherein the judgment passed by the trial Court has been affirmed, this appeal has been filed under Section 100 of the C.P.C.
It is not disputed that the respondent is the owner of the tenanted shop built in the year 1985. The shop has been rented out to the original plaintiff- Bhojraj. After the death of Bhojraj, the appellants have been incorporated as the LRs of Bhojraj Singh. The son of the respondent Manish Kumar Sahu (DW 2) has become a major. The relationship between the respondent and the appellants are that of landlord and tenant.
Before the learned trial Court, the respondent/plaintiff filed a civil suit for eviction of the tenanted shop No. 2076 situated at the ground floor of house No. 2075 to 2077, Gorakhpur, Jabalpur shown as A, B,C, D in redink. The rent was Rs.400/- per month. The monthly rent was to be paid within the 10th of every English calendar month. The defendant failed to deposit the rent regularly and from 10th September, 1997 completely stopped paying the rent. The son of the plaintiff- Manish Sahu is willing to start a "kirana shop" in the tenanted shop. Therefore, the plaintiff/respondent is in bona fide need of the shop. On the first floor of the shop house No. 2075 to 2077, the plaintiff and his family are living.
The relationship of the plaintiff and the respondent was cordial. On 09.08.1985, the respondent executed a deed in a stamped paper and given an advance of Rs.50,000/-. The plaintiff by sending a letter to the respondent on 11.10.2000 has terminated the tenancy.
These averments have been denied by the defendant/tenant. He pleaded that he has been tenanted since last forty years. The initial rent was Rs.20/-. Subsequently, enhanced to Rs.50/-. Later became Rs.300/- and at present it is Rs.400/- per month. The defendant has also claimed that he has been paying the rent and there was no default in his part. After giving rent to the plaintiff/appellants, he used to give receipt once in three months. The son of plaintiff Manish has started his business at the adjoining shop He had never caused any nuisance nor he had any other alternative arrangement. Plaintiff has many alternative accommodations. The plaintiff demanded to increase the rent of the shop from Rs.400/- to Rs.800/- and an agreement was entered into on 16.04.1985. According to this agreement, the plaintiff obtained Rs.50,000/- in advance and the remaining Rs.75,000/- to be obtained at the time of executing the document in a stamped paper. It was also agreed to enhance the rent to the tune of Rs.2,000/- p.m.
On this averment and the denial, the learned trial Court framed issues. After adducing evidence, pronounced the judgment dated 09.09.2005 wherein the respondent was directed to evict the house within a period of two months. Meanwhile, he was directed to deposit the compensation @ Rs.400/- per month from 02.12.1997 to be paid within two months.
Being aggrieved by this the respondent filed Civil Appeal No. 107A/2005. The same was decided on 19.05.2006 by the 9th A.D.J, Jabalpur.
The learned appellate Court affirmed the judgment and decree passed by the trial Court.
The learned appellate Court observed that Manish, the son of plaintiff has attained the age of majority and, therefore, he wants to start the business in the tenanted premises. Therefore, it is a bona fide need under Section 12 (1) (f). It is also held that the appellants have been throwing the garbage in front of the house and creating nuisance. Therefore, under the provisions of Section (12) (1) (c) of the Accommodation Control Act also, the plaintiff is entitled for evicting the respondent/defendant from the shop.
The defendant/appellants have filed this second appeal on several grounds. The main ground of the appeal is that the receipt Ex. D/2 was executed on 22.09.2000, by the plaintiff/respondent. Therefore, it has been made clear that the plaintiff/respondent is not in need of the shop for his son. Actually, the plaintiff/respondent wanted to enhance the house rent manifold and wants to obtain "Pagri" (deposit) an amount of Rs.1,25,000/-. The learned Courts below failed to appreciate the same. Hence, the suit is liable to be dismissed. Otherwise also, the plaintiff has alternative accommodation available for the alleged business of his own. Claiming that the judgment impugned is illegal and perverse prayed for setting aside the judgments and decrees passed by the Court below.
On 05.07.2006, the substantial question were framed which is as under:-
Whether the need of appellant to start the business of his own in the suit shop is malafide in view of receipt Ex.D/2 which he executed in favour of defendant during the pendency of the suit by enhancing rate of rent from Rs.400/- to Rs.2,00/- and obtained Rs.50,000/- in advance?
The appellants have also moved I.A. No. 15362/2017 under Order 41 Rule 27 C.P.C for taking additional evidence on record, which are photographs of shop where the son of the plaintiff, Manish, which is situated adjoining to the suit shop.
Heard the arguments. Perused the record.
It would be appropriate to mention here that that the respondent has vehemently opposed the word "shop" being used by the appellants for the business started by Manish, the son of plaintiff/respondent. It is contended that as the eviction suit was prolonged for long time and Manish became major, he had to start some business. Therefore, on the place for the path of the houses situated on the first floor, he has started doing business.
But it cannot be said that he has a suitable accommodation and he has been doing it because there is no other space for him. He has temporarily started this business for his livelihood which is on the way to the first floor and is not a regular shop.
It is also vehemently contended that the Manish wanted to start a General Store/kirana shop in the tenanted shop suitable for him. But as it is not vacated, he has been doing something to earn his livelihood and doing business on the path to the upstairs. Therefore, it cannot be said that he has no bona fide need of the shop. In this regard Gaya Prasad Vs. Pradeep Shrivastava, (2001) 2 SCC 604 can be referred to in which the Hon'ble Apex Court has held that :-
C. Rent Control and Eviction- Bona fide requirement of landlord- Maladies of the legal system- Developments in lives of landlord and his family held, cannot be expected to come to a standsitll during pendency of eviction petition, especially in view of tardiness and delays plaguing the legal system- Bona fides of his requirement have to be tested in relation to the date on which the eviction was applied for- Where premises are required for starting a son's business, the fact that during the years that the matter is pending, the son gets a job or moves out of town, cannot be used against the landlord- Administration of justice- Delays in litigation process- Judicial note taken of.
Order 41 Rule 27 provides for additional evidence in the appellate Court. Basic principles of admission of additional evidence are: (i) with best efforts such evidence could not have been adduced at first instance; (ii) the party affected should have an opportunity to rebut such additional evidence; and (iii) such evidence is relevant for determination of the issue. (Shivaji Rao Nilangekar Vs. Mahesh Madhab, AIR 1987 SC 294 .)
Averment regarding the bona fide need of plaintiff's son Manish (PW 2) has been averred right from the beginning. The original suit was filed in the year 1997. If Manish has been running the business of ready made cloths on the adjacent place of the tenanted shop, the same cannot be a new evidence. The appellants/defendant filed this photograph earlier and it cannot be said that with best efforts, such evidence could not have been adduced earlier.
In this regard objection was also raised and the same has been dealt with by the trial Court in issue Nos. 1, 2 and 3 and agitated before the appellate Court. Further introducing photographs in this regard under Order 41 Rule 27, prayed to be taken on record. The same is repetition of the same, hence, is deemed not appropriate to allow I.A. No. 15362/2017 for introducing additional evidence. It would amount to reopen the case.
Even if he is running the said ready-made garments shop on the gallery or path left for going to the upstairs, it cannot be termed as a ""shop suitable for the business of the plaintiff/respondent.
The bona fide need has been explained by the Hon'ble Apex Court in the case of Ganesh Prasad Vs. Lakshmi Narayan, AIR 1985 SC 964 i n which it is stated that:-
Reasonable requirement postulates that there must be an element of need as opposed to a mere desire or wish but the connotation of the term "need" should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree of eviction. Law gives the landlord choice of selection of the most suitable accommodation for his purpose.
The need for shifting into the suit accommodation the landlord's existing business which is being carried on in an accommodation not belonging to the landlord is sufficient to establish the non-residential need. In the case of Narendra Kumar Vs. Radhakishan, 1982, MP.LJ 279, a co-ordinate Bench of this Court has held that the :-
The factum of user of portion of premises in possession of the landlord for non-residential purpose by itself does not mitigate against genuineness of landlord's requirement of residence.
On the issue of the receipt allegedly executed by the respondent marked as Ex. D/2 dated 22.09.2000, it would be appropriate to hold that the original civil suit was filed on 02.12.1997 for bona fide need. The said receipt of Rs.50,000/- received by the landlord. The same was not acted upon and the appellants/defendant did not carry out the promise nor did he deposit the remaining amount. Therefore, he did not perform his part and the respondent/plaintiff by subsequent notice marked as Ex. D/3 dated 11.10.2000 has revoked the same. The learned appellate Court has observed that this amount can be adjusted from the rent.
Learned counsel appearing for the appellants/defendant has placed reliance on on Laxman Das Vs. Shrikrishan Das, Notes on unreported cases, 1980 118 (52) in which it has been held that:-
(i) Accommodation Control Act, 1961 (M.P)- Section 6 (2)- Security held in deposit by the landlord so that the tenant may not damage property- Held- the amount so deposited is security and cannot be adjusted towards arrears of rent. Condition of forfeiture of this amount is, however, void.
If the same is not adjusted as rent, this amount can be refunded to the appellants/defendant.
As Ex. D/2 was not acted upon, it can safely said that the defendant/appellant was never intended to act upon the same and the plaintiff/respondent has revoked the same by notice Ex. D/3. Therefore, no inference can be drawn on the basis of Ex. D/2 that the plaintiff/respondent has no bona fide need. On the basis of Ex. D/2 it cannot be asserted that the bona fide need expressed by the plaintiff/respondent is mala fide.
Having said so, it is found that :-
(a) The accommodation in question was let out for non-residential purpose.
(b) The accommodation is required bona fide.
(c) The requirement is for non-residential purpose.
(d) Requirement is of the landlord's son who is a major to run a business on the tenanted accommodation.
(e) The person needing the accommodation (Manish) has no other accommodation suitable in the city or on his occupation.
Therefore, this Court is not inclined to interference with the concurrent findings of the courts below.
The substantial question of law is answered in negative.
On the above discussion, this appeal is dismissed.