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Judgment
T.P. Sharma, J.
This second appeal u/s 100 of the Code of Civil Procedure, 1908 (for short ''the Code'') is directed against the judgment & decree dated 29.1.2000 passed by the 1st Additional District Judge, Rajnandgaon in Civil Appeal No. 16A/98 affirming the judgment & decree dated 7.10.97 passed by the 1st Civil Judge Class-I, Rajnandgaon in Civil Suit No.6A/97, whereby & whereunder learned Civil Judge Class-I has decreed the suit for eviction and recovery of rent on the ground of bona fide need for non-residential purpose u/s 12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 (for short ''the Act, 1961'').
Following substantial questions of law have been formulated for the decision of this second appeal:-
(i) That as the plaint was not properly verified on the date of its presentation, the defect could not be cured by legal representatives by appending their signatures; (ii) That the suit, as filed initially, was bad because the need of the daughter-in law would not be need of owner-landlord;
(iii) That deceased Rajkishore Shukla being ''Karta'' of the family could not bequeath a particular portion of the property in favour of Smt. Geeta Shukla;
The matter is heard finally on merits of the appeal and also on I. A. No.5226/2002, application filed under proviso to Section 100 read with Section 151 of the Code for framing additional substantial question of law.
I have heard learned counsel for the parties, perused the judgment impugned and record of the Courts below.
As per pleadings of the parties, original landlord Raj Kishore Shukla, predecessor-in-title of respondents No.1 to 8 herein, had filed a suit for eviction of the suit accommodation on the ground of bona fide need for respondent N0.8 herein, daughter-in-law of deceased Raj Kishore Shukla, for her legal profession. During the pendency of the suit, will deed relating to the suit accommodation was executed by deceased Raj Kishore Shukla in favour of respondent N0.8 herein. After the death of Raj Kishore Shukla, his legal representatives including respondent N0.8 herein were impleaded as plaintiffs and the plaint was also amended on the basis of the will executed in favour of respondent N0.8. The appellants herein/defendants denied the allegation of the plaint and have pleaded that appellant No.1 is the sole proprietor of the Firm, the plaintiffs are in possession of alternate suitable vacant accommodation to satisfy their need, originally the rent was Rs.311/- per month and at the time of filing of suit the monthly rent was Rs.471/-Respondent N0.8 herein is not working as Advocate for the benefit of her family and she is partially engaged in the legal profession. The accommodation is not required bona fidely for the profession of respondent N0.8 Mrs. Geeta Shukla. The alleged will is forged & concocted and no title has been passed upon respondent N0.8 herein on the basis of any will, previously on Suit No.26A/81 was filed by the original plaintiff which was finally dismissed and the present suit is barred by the principle of res judicata.
On the basis of the averments made by the parties, issues were framed and after affording opportunity of hearing, learned trial Court has decreed the suit in favour of the plaintiffs. Judgment & decree of the trial Court was challenged before the lower appellate Court and the lower appellate Court has affirmed the judgment & decree of the trial Court by the judgment & decree impugned.
Learned counsel for the appellants vehemently argued that for deciding real controversy of the appeal and maintainability of the appeal, additional substantial question of law relating to transfer of property by will and reconsideration of the ratio given in the matters of Puskar Sharma v. Smt. Sudha Mishra, 1996 (I) MPJR 134 & Nisar Ahemad Qureshi v. Smt. Hazra Begum, 1997 (I) MPJR 308 would be necessary. Learned counsel further argued that originally the plaint was not verified by the plaintiffs or any authorized agent of the plaintiffs in accordance with Order 6 Rule 15 of the Code, therefore, the suit was not maintainable on the date of its filing. Deceased Raj Kishore Shukla was not owner of the property and was not competent to bequeath, or will, part or part floors to any person and any such bequeath is violative of the provisions of the Chhattisgarh Prakoshtha Swamitva Adhiniyam, 1976 (for short ''the Adhiniyam, 1976'').
Learned counsel also argued that at the time filing of suit the parties have crystallized their claim, therefore, after filing of suit any subsequent charge in such claim or suit cannot be tried and decided in the same suit. The alleged bequeath executed by Raj Kishore Shukla in favour of respondent No.8 herein amounts to transfer of property, therefore, in terms of Section 12(4) of the Act, 1961, suit for eviction within one year from the date of acquisition by way of transfer is not maintainable. Learned counsel placed reliance in the matters of Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR''s., & Shakuntala Bai and Others Vs. Narayan Das and Others, in which it has been held by the Apex court that crucial date for existence of landlord''s requirement is the date of filing of eviction application, even after the death of landlord during pendency of appeal, bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any son. Learned counsel further placed reliance in the matter of Kailash Singh Vs. Hiralal Dey, in which it has been held by the Gauhati High Court that expression "any error, defect or irregularity in any proceeding in any suit" in Section 99 of the Code includes signing and verification of plaint as laid down in Order 6 Rules 14 & 15 of the Code, learned counsel also placed reliance in the matter of Regu Mahesh @ Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev and Another, in which the Apex Court has held that defect in verification of the pleading in case of eviction petition is curable, but failure on the part of petitioner to cure the defect, despite having been specifically pointed out, the objection raised by the opposite party is fatal. Learned counsel relied upon the matter of F.A. Sapa Etc., Etc., Vs. Singora and others, in which the Apex Court has held that the defect in the verification of the election petition as required by Section 83(1)(c) of the Representation of the People Act, 1951 is of a formal nature and not very substantial, and capable of being cured.
On the other hand, learned Senior Advocate appearing on behalf of respondents vehemently argued that the appellants herein have neither pleaded nor proved that the suit is not maintainable in accordance with Section 12(4) of the Act, 1961 or the will is transferred in accordance with and for the purpose of Section 12(4) of the Act, 1961. Raj Kishore Shukla was not competent to bequeath the property and the plaint suffers from defect of verification. The appellants herein have also not raised this ground in the first appeal, therefore, new ground on the basis of without pleading & proof is not acceptable in second appeal. The ratio given in the matters of Puskar & Nisar (supra) does not require any reconsideration. In the light of pronouncement in the matters of Puskar & Nisar (supra), the appellants have even not pleaded and proved the applicability of the provisions of the Adhiniyam, 1976. Virtually, the substantial questions of law formulated for the decision of this appeal are academic in nature and no additional substantial question of law is necessary for the just decision of this appeal. Without pleading & proof and the ground taken by the appellants in their written statements, the ground taken during the course of arguments is of no use. Learned Senior Advocate further argued that deceased Raj Kishore Shukla has specifically pleaded in his plaint that the accommodation is required bona fidely for non-residential purpose of his daughter-in-law, respondent No.8 herein, and he was competent to bequeath the property or portion of property in favour of respondent No.8 herein, as such he has bequeathed the property in favour of respondent No.8 herein, and respondent No.8 herein was owner of the property, even otherwise, she is co-owner of the property after the death of Raj Kishor Shukla, therefore, the suit for eviction for respondent No.8 herein filed by Raj Kishore Shukla and continuation of suit by respondent No.8 herein & other legal representatives of deceased Ra Kishore Shukla after the death of Raj Kisore Shukla, was maintainable. Defect and verification was curable and has been cured at the instance of the instance of the trial Court, and after removal of such defect, the ground for dismissal of suit on the ground of defect and verification is not available to the appellants.
Learned Senior Advocate appearing on behalf of the respondents also argued that the suit filed on the ground of bona fide need and continuance of the suit for bona fide need of respondent No.8 is competent and respondent No.8 is entitled for eviction on the ground of her bona fide need. The appellants herein have not taken any ground of defect of verification in their written statement. Originally, the plaint was signed by deccased plaintiff Raj Kishore Shukla and after his death respondents No.1 to 8 herein has (sic) on impleaded as legal representatives of deceased plaintiff Raj Kishore Shukla. On the date of final arguments i.e. 5-7-97 it was pointed out by the Court that the legal representatives of the plaintiff have neither signed the plaint nor they have filed any written submission relating to consent or admission of the allegation of the plaint and the plaint did not bear signature on verification. Finally the case was decided and the suit was decreed. Therefore, this is not the case where and defect in verification has not been removed even despite the direction given by the Court or the plaint has not been verified by the person competent to verify such plant. The defect is curable in accordance with the provisions of Section 99 of the Code. In the circumstances, the plaint or the suit is not liable to be dismissed on the ground of defect in verification.
Learned Senior Advocate appearing on behalf of the respondents placed reliance in the matter of Karam Singh Vs. Ram Rachhpal Singh and Others, in which the Himachal Pradesh High Court has held that signing and verification of plaint is purely procedural and the party can make good the deficiency at a later stage and signing by the counsel only is not sufficient compliance, the Court is required to provide an opportunity for removing the defect. Learned Senior Advocate further placed reliance in the matter of Kailash Singh (supra) in which the Gauhati High Court has held that verification of plaint is not mandatory and any defect can by cured at any stage. If on the basis of evidence, the plaintiff made out the case in the plaint, the plaint was not liable to be rejected merely on the ground of defect of verification of the plaint. Learned Senior Advocate also placed reliance in the matter of Anathula Sudhakar v. P. Buchi Reddy (Dead) By L.Rs. & Ors., AIR 2008 SCW 2692 in which the Apex Court has held that in absence of pleadings and issue, substantial question of law cannot be formulated in second appeal. Learned Senior Advocate relied upon the matter of Pasupuleti Venkateswarlu Vs. The Motor and General Traders, in which the Apex Court has held that in case of eviction suit the Court is bound to take cognizance of subsequent event even at the revisional stage. Learned Senior Advocate further relied upon the matter of Shakuntala Bai and others v. Narayan Das and others, AIR 2004 SCW 3291 in which the Apex Court has held that "Death of landlord during pendency of appeal -Bona fide requirement of deceased landlord does not come to an end - LRs/ sons of landlord who attained majority during pendency of appeal - are entitled to defend the estate - Bona fide need of landlord has to be examined on date of institution of proceedings". Learned Senior Advocate further relied upon the matter of Indusingh D/o. Late Girirajsingh v. Smt. Leelawati Wd/o. Narendrasingh Chouhan and others, 1988 MPLJ 682 in which the Madhya Pradesh High Court has held that transfer of property as defined in Section 5 of the Transfer of Property Act applies only in proviso to Section 23 of the Chhattisgarh Accommodation Control Act, 1961. learned Senior Advocate also relied upon the matter of Tribhuwandas v. Premchand, 1964 MPLJ 904 in which the Madhya Pradesh High Court has held that the property received on partition is neither acquisition of title nor transfer.
In the present suit, originally the plaint was signed by original plaintiff deceased Raj Kishore Shukla but was not verified by him, when it was pointed out by the Court after the death of Raj Kishore Shukla, the plaint was verified by all his legal representatives namely, respondents No.1 to 8 herein.
The 1st substantial question of law formulated for the decision of this appeal is related to defect and verification of the plaint. It is not disputed that the original plaint was not verified by the plaintiff, but when the defect was pointed out by the Court itself, it was verified by the legal representatives of the original plaintiff. The provisions of Order 6 Rule 15 of the Code relating to verification of pleadings read as follows:-
Verification of pleadings.-(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
Sub-rule (4) of Rule 15 of Order 6 of the Code has been amended in the year 2002 and sub-rule (4) was not available to the parties at the time of filing of the suit or at the stage of first appeal. Order 6 Rule 15 of the Code provides that every pleading shall be verified by the party or by one of the parties or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. It is also required to state that what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
Learned counsel for the appellants has argued that intention of the legislature is clear relating to verification and according to Rule 15 of Order 6 of the Code, the plaintiff or one of the plaintiffs is the only person to. verify the plaint and none else.
Sub-rule (1) of Rule 15 of Order 6 of the Code is unambiguous and provides that the party or one of the parties or some other person acquainted with the facts of the case is competent to verify the pleading, it does not limits that only the party is competent to verify the pleading.
As regards the question of subsequent ratification of the pleading, the Apex Court in the matter of United Bank of India Vs. Naresh Kumar and others, has held that the defect of signing of pleading is curable. Relevant portion of para 10 of the said judgment reads as follows:-
A person may be expressly authorized to sign the pleadings on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express of implied. The Court can on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.
While dealing with the question of verification of election petition, the Apex Court in the matters of P.A. Sapa (supra) & Regu Mahesh (supra) has held that defect in verification is curable and not fatal to maintainability of the petition.
Similarly, in the matters of Kailash Singh (supra) & Karan Singh (supra) also it has been held that defect in verification is curable defect.
The defect in verification is a curable defect and it can be ratified at later stage. This is not the case where even after the defect was pointed out by the Court the parties have not removed the defect, inter alia, when it was pointed out by the Court, legal representatives of the original plaintiff had removed the defect.
Allegation of the plaint is unambiguous in which it has been pleaded that the accommodation is required for the daughter-in-law of the original plaintiff namely, respondent No.8 herein. The plaint has been verified by respondent No.8 herein along with other respondents who are legal representatives of the deceased plaintiff and were residing with the plaintiff. After the death of original plaintiff Raj Kishore Shukla, his son Nirmal Shukla, respondent No.3 herein, has examined himself and supported the plaint and also the statement of the original plaintiff which is sufficient to make out the case of the plaintiff. It also shows that by the conduct of the original plaintiff and the subsequent conduct of the parties, the parties have succeeded in removing the defect of verification even without signing on the verification. Therefore, it is held that the defect of verification is curable and has been cured.
The 2nd substantial question of law is related to absence of bona fide need of the landlord and the 3rd substantial question of law is related to legality & propriety of the will executed by deceased Raj Kishore Shukla in favour of respondent No.8 herein.
Section 12(1)(f) of the Act, 1961 provides that eviction may be claimed for landlord or his major sons or unmarried daughters or for any person for whose benefit the accommodation is held. Section 12(1)(f) of the Act, 1961 reads thus,
Restriction on eviction of tenants.-(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely: (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 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 non-residential accommodation of his own in his occupation in the city or town concerned.
Ex. P-11, the will executed by Raj Kishore Shukla and proved by witnesses Geeta Shukla (PW-2) - respondent No.8 herein, Ajay Shukla (PW-4) & Premchand Chaurasia (PW-5), reveals that deceased Raj Kishore Shukla has bequeathed the suit accommodation to respondent No.8 herein in which it has been mentioned that he has filed eviction suit against the appellants herein.
Learned counsel for the appellants has objected the execution of definite portion or definite floor and submitted that any such bequeath is violative of he provisions of the Adhiniyam, 1976.
The Adhiniyam, 1976 does not create any bar to bequeath the property or portion of the property by the owner of the property. In the present case, deceased Raj Kishore Shukla has executed the deed of bequeath in favour of respondent No.8 herein and his other successors. A Hindu is competent to bequeath his property to his legal representatives even in unequal and arbitrary manner.
The plaint originally filed by Raj Kishore Shukla reveals that he was seeking eviction for his daughter-in-law, respondent No.8 herein. Subsequently, the will Ex.P-11 was executed by Raj Kishore Shukla which contains the portion of property and pendency or civil suit. After the death of Raj Kishore Shukla, respondent No.8 herein has been impleaded as legal representative of Raj Kishore Shukla along with other heirs of Raj Kishore Shukla. After appreciating the evidence available on record, learned trial Court has decreed the suit in favour of respondents No.1 to 8 herein considering the bona fide need for the office of respondent No.8 herein.
As held by the Apex Court in the matters of Kamleshwar Prasad & Shakuntala Bai (supra), crucial date for existence of landlord''s requirement is the date of filing of eviction application, even after the death of landlord during pendency of appeal, bona fide need cannot be said to have lapsed as the business in question can be carried on by his window or any son.
Suit for eviction was filed for the bona fide need of respondent No.8 herein, during the pendency of suit the original plaintiff died and respondent No.8 herein was impleaded as plaintiff along with other heirs of deceased plaintiff Raj Kishore Shukla. The plaintiff and his witnesses have proved the bona fide need of the suit accommodation for respondent No.8 herein. Definitely the original plaintiff has not specifically pleaded that he was holding the accommodation for the benefit of respondent No.8, but pleading in the plaint reveals that the suit was required for respondent No.8 who subsequently become owner of the property as a result of the will executed in her favour and continued to bona fide need of herself.
Both the Courts below have arrived at a finding that Raj Kishore Shukla has voluntarily executed the will deed and respondent No.8 herein became owner of the suit accommodation, she was not in possession of alternate vacant accommodation. The decree for eviction has been granted in favour of respondent No.8.
During the course of arguments, learned counsel for the appellants has submitted that the ratio given in the matters of Puskar & Nisar (supra) requires reconsideration, in which the coordinate Benches of the M.P. High Court have taken contrary view relating to transfer of property.
In the matters of Indusingh (supra), Pyarelasa v. Garanchandsa, 1964 MPU 334 and Tribhuwandas (supra), the coordinate Benches of the M.P. High Court have taken the view that partition is not included in transfer within the meaning of Section 12(4) of the Act, 1961 and transfer means transfer of property as defined in Section 5 of the Transfer of Property Act. Consequently, I.A.No.5226/2002 is dismissed.
Taking into consideration the contrary views taken by the different coordinate Benches of the M.P. High Court relating to transfer, such question does not require any reconsideration by this Court and it is not the substantial dispute of this case.
For the foregoing reasons, all the substantial questions of law formulated for the decision of this appeal are decided as negative. On the basis of finding on the substantial questions of law, I do not find any substance in the appeal, same is liable to be dismissed and it is hereby dismissed. The appellants shall bear their own costs of the suit as well as of the appeal and also the costs of the respondents.
Advocate fees as per schedule.
Decree be drawn up accordingly.