Chandra Bhushan vs Virendra and Another

K.K. Lahoti, J.

The defendant lost in both the Courts below has filed this appeal challenging the judgement and decree passed by the lower appellate Court under Sections 12(1) (f) and 12(1)(b) of Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to ''the Act''), while the trial Court granted decree only u/s 12(1)(f) of the Act, was admitted on 29.10.1999 on following substantial questions of law:

Whether the finding of the two Courts that the ground for eviction u/s 12 (1) (f) of the M.P. Accommodation Control Act, 1961 has been established, is perverse"?

"Whether the appellate Court could legally inspect the spot and make inquiries on the points in dispute in appeal?"

"Whether the finding of the first appellate Court that the ground for eviction u/s 12 (1) (b) of the Act is established, is also perverse?"

"Whether the order for criminal prosecution of the defendant is legally valid?

Short facts of the case are that the suit was filed on 21.1.1988 by the respondent/plaintiff on the ground of bona fide necessity that he wants to start his hotel business in the suit accommodation. He has purchased this house for the same purpose because in the year 1975 he was separated from his father and brother and the disputed accommodation has been purchased for this purpose only. At presently, plaintiff is not doing any business and for his bona fide necessity, he is having no other alternative accommodation suitable for his business in the town of Burhanpur.

Plaintiff has also sought eviction u/s 12 (1) (b) of the Act that defendant no. 1 has sub-let the accommodation to defendant no. 2. Om Prakash and at presently Om Prakash is in posssession of the accommodation whereas he is carrying on business of sweets.

Both the defendants contested the suit by filing separate written statements. Defendant no. 1 denied the allegations of the plaint and submitted that the plaintiff is not the exclusive owner of the suit shop. He is having alternative accommodation. At presently, he is doing business with his brother in the name and style of ''Santoshi Jalpan Grah''. The disputed shop is in possession of defendant no. 1. Plaintiff is having alternative accommodation for starting of his business at Lalbagh Burhanpur, the building which is owned by the plaintiff and called as Shiv Bhawan. In one of the rooms of the said building tailering work is being done and one room is vacant, which is sufficient for the bona fide necessity of the plaintiff.

The learned trial Court after framing issues, recorded the evidence and arrived at a finding that the plaintiff is in bona fide need of the shop for starting his hotel business. Plaintiff is not in possession of any other suitable accommodation for his business. Consequently, suit u/s 12 (1) (f) of the Act was decreed, but the trial Court negatived the ground u/s 12 (1) (b) of the Act and the decree on the ground of sub-tenancy was refused.

Aggrieved by the judgement and decree of the trial Court, appellant filed the appeal. The respondent/plaintiff has also filed cross-objections before the Court below regarding dismissal of the suit on the ground u/s 12 (1) (b) of the Act. The lower appellate Court by the impugned order dismissed the appeal of the appellant and allowed the cross-objections filed by the respondent/plaintiff, and also granted decree u/s 12 (1) (b) of the Act. During the course of arguments, the learned lower appellate Court has found that spot inspection is necessary and in voking the powers envisaged under Order 18 rule 18 of the Code of Civil Procedure, 1908, the Judge personally inspected the shop and prepared a note on 9.3.1999, of the inspection. The learned lower appellate Court found that in the suit accommodation, respondent no. 2 is running the business of hotel. Considering the entire evidence namely, documents, photographs and pernsonal inspection by the lower appellate Court decree u/s 12 (1) (b) of the Act was granted. Aggrieved by the judgement and decree of the Court below, appellant has filed this appeal, which was admitted on 29.10.1999 on above stated substantial questions of law.

It is pertinent to mention here that on 29.10.1999 while admitting the appeal, this Court passed an order under Order 41 rule 5 of the Code and execution of the eviction decree was stayed subject to fulfilling the conditions by the appellant of depositing the rent as per Section 13 (1) of the Act. Subsequently on 28.3.2001 while considering the stay application, this Court found that the appellant has failed to satisfy the Court whether he has complied with the conditions of the order, consequently, the stay order granted on 29.10.1999 was vacated. Thereafter on 25.9.2001, this Court directed that the order sheet of April, 30, 2001 is not available in the file and in that regard an enquiry is going on, in the Registry, but this fact reveals from the order dated 25.9.2001 whereas this Court found that the status quo order dated 30.4.2001 was violated and delivery of possession of the accommodation to the respondent no. 1 was effected on 9.5.2001. This was in breach of the order dated 30.4.2001. Therefore, the respondent no. 1 was directed to restore the possession of the suit accommodation to the appellant. Respondent no. 2 challenged the order dated 25.9.2001 before the Apex Court by filing special leave to appeal (Civil) no. 18098/2001. The apex Court vide order dated 11.10.2001 directed to maintain status quo between the parties. The matter is still pending before the Apex Court.

The Apex Court vide order dated March 4, 2002 directed as under:

Adjourned by four weeks. In the mantime, we request the High Court to take up the Second Appeal for hearing expeditiously.

Thereafter this matter was placed before the Court on 10.4.2002 for hearing. But from the perusal of the record, it was found that respondent no. 2 was not served and notice was issued to respondent no. 2. Service was effected on respondent no. 2, but inspite of this he has not appeared. In the circumstances, the matter was heard finally.

The leanred counsel for the appellant submits that the plaintiff has failed to prove his bona fide necessity. He is running the business with his brother and is in possession of the alternative accomodation namely Shiv Bhawan, which has been vacated by Sita Ram and the above said accommodation is available for the respondent, whereas he may start his business. The learned counsel for the appellant also stated that the lower appellate Court has erred in invoking the power under Order 18 rule 18 of the Code whereas there was no necessity to inspect the shop. The lower appellate Court after inspection of the shop has also directed prosecution of the appellant u/s 193 of the Indian Penal Code, which has caused serious prejudice to the appellant The leanred counsel submits that he has moved an application under order 41 rule 27 of the Code along with it he has filed the statement of plaintiff, which was recorded in previous suit. Appellant could not file it in the trial Court and when the second appeal was under preparation, the counsel appearing for him advised to file this statement and because of this, the statement was filed along with application under Order 41, rule 27 of the Code. The learned counsel for the appellant submits that this evidence is very important and will go to the roots of the case and is necessary for just decision of the case.

From the perusal of the evidence and finding recorded by the Court below, it is apparent that the plaintiff has proved that he was doing business with his brother, but at presently he is unemployed and wants to start his hotel business in the accommodation. He is having no alternative accommodation in the town of Burhanpur. Shiv Bhawan does not belong to him and in fact it belongs to his father and the plaintiff has no concerned with this accommodation. Apart from the above, said accommodation is a residential accommodation where he cannot run his business of hotel. The lower appellate Court has also recorded this fact that the Shiv Bhawan is situated in a residential area and is not suitable for the business of the plaintiff. On this ground, the Court below has recroded a finding that the plaintiff has proved his bona fide need of the said accommodation because he is having no alternative accommodation and Shiv Bhawan is not available to the plaintiff by way of alternative suitable accommodation for starting his business. From the perusal of the evidence and after going through the judgments of both the Courts below, it is apparent that the plaintiff has bona fide need of the accommodation and wants to start his hotel business. I do not find any infirmity and perversity in the finding recorded by the Court below. To negative the bona fide necessity, the ground which is pressed hard by the learned counsel for the appellant is that on the same ground previous suit was dismissed in default, so the present suit was barred under Order 9 rule 9 of the Code of Civil Procedure. The Court below has considered this and has found that the pleadings, issues and the order passed in the previous suit were not placed on record, These facts can be ascertained only on the basis of the pleadings of the parties. Even if, plaintiff who has failed in the previous suit of bona fide need by itself is not a sufficient ground to dismiss present suit. The plaintiff in the present case has proved his bona fide necessity on the date of the suit. He has proved his bond fide need of suit accommodation for starting his business, having no alternative accommodation for that purpose.

The Apex Court in the case of N.R. Narayan Swamy Vs. B. Francis Jagan, has considered similar question and held in para (6)

In our view, the High Court ought to have considered the fact that in eviction proceedings under the Rent Act the gound of bona fide requirement or non-payment of rent is a recurring cause and, therefore, landlord is not precluded from instituting fresh proceedings. In an eviction suit on the ground of bona fide requirement the genuineness of the said ground is to be decided on the basis of requirement on the date of the suit. Further, even if a suit for eviction on the ground of bona fide requirement is filed and is dismissed it cannot be held that once a question of necessity is decided against the landlord he will not have a bona fide and genuine necessity ever in future. In the subsequent poceedings, if such claim is established by cogent evidence adduced by the landlord, decree for possession could be passed.

In view of this, the contention raised by the appellant has no substance and accordingly it is held that plaintiff is in bona fide need of suit accommodation to start his hotel business.

The appellant has filed an application under Order 41 rule 27 of the Code along with certified copy of the statement of plaintiff Virendra Singh in previous suit. The appellant has not shown any cause in the application why he has not filed this document in the trial Court. Even requirement of invoking the provision of Order 41 Rule 27 of the Code is not satisfied in the present case.

The appellant was well aware since very beginning with the document. This document cannot be accepted, merely on the ground, that in the second appeal counsel has advised him to file this document. In the circumstances, I do not find any substance or reasons to allow this application at this stage and it is accordingly dismissed.

In the circumstances, the plaintiff succeeded in making out a case u/s 12 (1) (f) of the Act and the finding in that regard of the Court below is affirmed.

So for as the gorund u/s 12 (1) (b) of the Act is concerned, the learned lower appellant Court while hearing the appeal observed that the disputed accommodation is not occupied by Om Prakash. Several photographs before the Court produced and matter was hotly contested. It was denied before the Court below that in fact defendant no. 1 is in occupation of the shop whereas he is running his business in the shop and the defendant no. 2 Om Prakash is running another shop of sweets. It apears that during the course of arguments, the Court below has considered this case to be a fit case where the Court shold inspect the spot invoking power envisaged under Order 18 rule 18 of the Code, though this power is to be exercised in exceptional cases. Looking to the facts of the case, it was felt by the lower appellate Court to inspect the shop. The lower appellate Court while inspecting the shop has made certain observations and passed an order for the prosecution of defendant no. 1 u/s 193 of the Indian Penal Code. It appears that during the course of the arguments, some moment arrived which persuaded the appellate Cout to invoke the power. Proper recourse was to appoint commissioner to inspect the shop. In the circumstances, the exercise of such power by the lower appellate Court cannot be appreciated. However, the Court which has inspected the spot has found some facts, which have been recorded by the Court below cannot be ignored. The Court found that defendant no. 2 is in occupation of the shop and defendant no. 1 is running a shop at other place. This finding cannot be taken up lightly. The court below after appreciating the evidence and considering the spot inspection, itself has found that ground under 12 (1) (b) of the Act is made out and granted the decree u/s 12(1) (b) of the Act, is also affirmed. However, the learned lower appellate Court at the time of inspection has found that the evidence of the defendant no. 1 is false and on the basis of this has directed prosecution of appellant. The observations in para 17 of the judgement will result prosecution of the appellant. In the peculiar circumstances, I set aside the order of prosecution passed by the lower Appellate Court in para 17 of the judgement.

In view of the above, this appeal is allowed partly. The order of prosecution of the appellant is set aside and rest of the appeal filed by the appellant is dismissed with no order as to costs.