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Judgment
S. Awasthy, J.
This appeal arises out of the judgment and decree dated 22-12-1987, passed by First Additional Judge to the Court of the District Judge, Jabalpur, in Civil Appeal No. 6-A/82 arising out of the judgment and decree dated 28-1-1982, passed by First Civil Judge, Class-II, Jabalpur in Civil Suit No. 21-A/80.
The respondent-plaintiff filed a suit for ejectment of the appellant from the suit premises on the grounds that (i) the h use was let out for residential purpose, but the defendent-appellant has converted the same into nonresidential accommodation by running a school contrary to the terms of the tenancy; (ii) the defendant-appellant has encroached upon two rooms and has also constructed more rooms without the consent of the land-lady, after encroaching some portion of the accommodation which was not demised to the appellant; (iii) the plaintiff bona-fide requires the suit premises for herself and her family members, as she is not in occupation of sufficient accommodation for her requirement and (iv) the appellant defendant has not paid monthly rent regularly and was in arrears of rent amounting to Rs. 3,095/- which he did not pay inspite of notice as required u/s 12(1) (a) of the M. P. Accommodation Control Act. (hereinafter referred to as ''the Act'').
The Trial Court decreed the suit under Sections 12 (1) (c), 12 (1)(m) and (e) of the Act. But the lower Appellate Court decreed the suit only u/s 12(1) (c) of the Act.
The following substential question of law has been framed by this Court: -
Whether running of a school for small children in a portion of the suit accommodation which was initially let out for residential purposes, would amount to charge in user of tenancy, within the meaning of provision u/s 12 (1) (c) of the M. P. Accommodation Control Act ?
After service of the no ice, respondent (herein) has filed cross-objection raising all the grounds which were held against the plaintiff-respondent.
The learned counsel appearing for the appellant argued that there was no material on record to hold that, the tenancy was exclusively for residential purpose only. He further argued that by running a school in a part of the demised premises in which the tenant was also residing, the appellant has not done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation. Moreover under the proviso, to the said section it has been made clear 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. The learned counsel relied on Sant Ram Vs. Rajinder Lal and Others, and Sachindra Nath Shah Vs. Santosh Kumar Bhattacharya,
The Court below 1ms relied on the case of Moolchand Vs. Sheodutt Paliwal and Another, and held that the dismissed house was residential accommodation let out for residence.
From the question of law, which has been framed by this Court, it is clear that the house in question has been accepted to be a residential accommodation in which a school is being run. The question posed is, whether it amounts to change in the user of the tenancy premises. The proviso to Section 12 (1) (c) in specific terms mentions that keeping an office in portion of accommodation would not be deemed to be inconsistent Act. There is lot of difference between opening an office in the residential accommodation and running a school therein. It is, therefore, manifest that the proviso to Section 12 (1) (c) is not helpful to the appellant in the present context.
The proviso to sub-section (1) of Section 12 of the Act has been added to allay fears and remove misapprehensions and it will not be right to interpret the words "act inconsistent" used in the main part of the section to include by implication all other different uses, though actually not inconsistent and incompatible according to the facts and circumstances and the terms and conditions of the lease, as acts inconsistent with the purpose of the lease, because only one particular type of use had been excepted by the proviso.
The presence or absence of a specific prohibition of the use of any other type would always be material and relevant for applying the provisions of Section 12 (1) (c) of the Act and for arriving at a finding whether the particular act was an act inconsistent.
In the case of Sachindranath Shah (Supra) where in a spare room available to the tenant, if he takes paying guests it was held that it would not amount to sub-letting or parting with the possession of a portion of demised premises. Since the purpose for which the tenancy was created was residential and the character was not changed, even if paying guests were admitted in that portion of the demised premises. In the case of Sant Ram (supra) it was held that the purpose of tenancy was exclusively commercial and incompatible with any residential use even of a portion. It was further observed : -
Tenant who takes out petty premises for carrying on a small trade, also stays in the rear portion, cooks and eats he so disastrously perverts the purpose of the lease. A different ''purpose'' in the context is not minor variations but majuscule in mode of enjoyment.
In the case of Banshilal v. Smt. Kanta Devi 1980, M. P. RCJ 110, it has been held that running a laundry in a suit accommodation let out for residential purpose, is an inconsistent use.
The lower Appellate Court in para 15 of its judgment, has held that the appellant without the permission of the land-lady, has constructed one additional room which is being used by him as a kitchen. This accommodation is in addition to the four rooms which were demised to him. He has converted two out of four rooms for non-residential purpose and has constructed one Additional room, for his residence. It is common knowledge that when a part of the demised accommodation is diverted for other use than residence, the remaining portion of the accommodation would fall short of his residential requirement. Hence, need to create additional accommodation for residence. Here the question is not the value of the premises demised being increased or decreased but altering the character of the premises, majuscule in the mode of enjoyment. Thus running the school would be inconsistent with the purpose for which the accommodation was let, in the facts and circumstances of this case. 1. therefore, hold that under the facts and circumstances of this case, the appellant has incurred liability, u/s 12 (1) (c) of the M. P. Accommodation Control Act.
The respondent (herein) has filed cross-objection under Order 41 Rule 22 Civil Procedure Code. The following substantial questions of law have been framed by me :--
(1) ''Whether the Lower Appellate Court was right in construing the document (Ex. P-4) and its effect on the suit"?
(2) Whether the Lower Appellate Court was right in holding that the need of the plaintiff-respondent was negatived because of the use of the premises acquired by the landlady after getting the possession of the said premises from the tenant Ramdulari Bai, who was running a hotel in the said premises and due to the sale of a house situated at Prem-Sagar''?
The plaintiff has received entire rent due to him and the appellant/ defendent has filed an application (I. A. No. 1306/90) for condoning the delay in payment of rent. The reasons shown in the application for delayed payments are sufficient to condone the delay. 1, therefore, condone the delay in payment of rent. The question No. 1, therefore does not exist for reply.
From the perusal of the Commissioner''s report dated 20-2-90, it is clear that the respondent-plaintiff is in occupation of ground floor consisting of 3 rooms, lavatory, bathroom and 3 ft. wide balcony in the rear. Room No. 1 is 12 ft. x 11.3 ft. and is being used as an office of the school. Room No. 3 is 12 ft. x 12.1 ft. and is being used for running the school. There is a partition wall in between room No. 1 and room No. 3. The partition wall covers only 3/4 of the portion and does not tough the ceiling. Therefore, it is clear that one room (hall) has been converted into 2 rooms by the said partition wall. Room No. 2 is 12 ft. x 23.4 ft. A wooden partition is kept in the middle in it for running two classes in the said room. The area of room No. 2 is 12 ft.x23.4 ft. The commission report is annexed with diagrams depicting the basement, the ground floor and the first floor. This portion i.e. the ground floor, was being used by Ramdulari Bai for running a hotel that is for non-residential purpose. At present the said portion is being used by the landlady for running her school, which is also non-residential purpose. Thus, the ground floor cannot be considered to be an alternative accommodation available to the plaintiff-landlady for her residential purpose. It is quite natural that a person would like to suffer inconvenient than starving. The learned Lower Appellate Court was not right in holding that a person would like to live in comfort by occupying more accommodation than to worry about his livelihood. The plaintiff-respondent, therefore, did nothing unusual by starting a school for her livelihood than occupying the said non-residential accommodation as her residence. In my view, the Lower Appellate Court was wrong in holding that the availability of the said accommodation (ground floor) would negative the need of the plaintiff-respondent.
The learned Lower Appellate Court has also taken into consideration that some portion of the premises was let out to Uma Singh and P. Bandopadhyay for sometime. The learned Judge has not taken into consideration the pleadings of the parties and the evidence led in this behalf. If for some time due to certain circumstances someone was permitted as licensee to occupy some portion of the premises. It would not negative the naed if it existed at the time of filing of the suit and which continued to exist during the pendency of the (sic). The learned counsel for the appellant rightly did not rely on the sale of the Premsagar house as a circumstance for negativing the naed of the plaintiff. The plaintiff did not consider the said accommodation to be suitable for residence. The Court cannot compel her to occupy the same, if she has given reasonable explanation for her option in not occupying the said premises and for selling the same due to her financial circumstances.
A landlord who does not wish to occupy a house which he does not fell to be suitable to his need cannot be compelled to occupy that house or not to sell it lest the said house be treated as an alternative residential accommodation.
The plaintiff is a widow having 5 children, two out of whom have now been enrolled as advocates of this Court (as stated at the bar and not denied by the other side). The accommodation in her occupation as per Commissioner''s report is in the first floor consisting of one proper room only (R-1 in diagram C annexed to the report). It is 14.9 ft. x 9.6 ft. There is also one woeden enclosure with a reof of tin sheets, area 10.9 ft. x 14.9 ft. used as kitchen, storage etc. There is varandah in front of room (R-1) which has been covered on top with as best as sheets area 13.1 ft. x 11 ft. These are only temporary constructions for some-how living in the premises, for want of proper accommodation.
Thus, the accommodation in possession of the plaintiff is most insufficient for her need. The learned Lower Appellate Court was therefore, not right in reversing the ground u/s 12 (1) (e) of the M. P. Accommodation Control Act found by the trial Court in favour of the plaintiff-respondent.
I, therefore, dismiss the appeal and allow the cross-objection. A decree for ejectment of the appellant be passed u/s 12 (1) (c) and 12 (1) (e) of the M. P. Accommodation Control Act for his ejectment from the suit premises.
However, due to paucity of accommodation in city of Jabalpur and the difficulty in getting alternative accommodation which the appellant shall face, I grant him time to vacate the premises till 31st of December, 1990. The decree-holder shall not execute the decree till 31st of December, 1990. The appellant shall vacate the premises by that date and pay occupation charges at the rate of the agreed rent for the period occupies the premises. If he fails to comply with the direction, the plaintiff-respondent shall be entitled to execute the decree thereafter. The Parties are directed to bear their costs of this appeal.