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2006 Supreme(MP) 682
2006(2) JLJ 374
K.K. Lahoti, J.
Goverdhan v. Santosh Kumar and others
Second Appeal No. 308 of 2005;
Decided on 15.5.2006.
Lalwani for appellant;
S.A. Sobhani for respondents.
Headnote:(1) Accommodation Control Act, 1961 (M.P.) -- S. 12(1)(f) -- suit for eviction of tenant on 8 round of bona fide need of son of land-lard -- son died during pendency of appeal -- need still existing in-favour of another son -- rightly decreed.
Though there is decree for eviction under section 12(1)(f) of the Act, but in fact the suit was filed for the bona fide necessity to start the business of Mahesh Kumar. During the pendency of appeal Mahesh Kumar died so the respondents filed an application to amend the pleadings by showing the need of Santosh Kumar, but this application was not allowed by the appellate Court. Thereafter the appeal filed by the tenant was dismissed which was challenged in Second Appeal No. 98/1996. By judgment dated 2.8.2004 the matter was remanded by the High Court to the lower appellate Court to decide at afresh. But the appellate Court again granted the decree. As the son of landlord, whose need was pleaded, has died during the pendency of appeal then the need, if any, has vanished and no decree under section 12(1)(f) of the Act may be passed. [Para 2
Held: The appellate Court has found that the landlord‘s major son Mahesh Kumar was carrying on his business in a tenanted accommodation of Savitribai. No other shop was available for the business of Mahesh Kumar. Mahesh Kumar was also examined by the landlord as PW2. The tenant also admitted this fact that Mahesh Kumar was doing the business of tailoring in the tenanted accommodation. From the perusal of application filed by the landlord before the lower appellate Court it is apparent that the landlord has specifically stated that the suit accommodation is required by another son of plaintiff, Bhagwandas, who is doing private service. Though this application has not been considered by the lower appellate Court, but landlord‘s need is still there. Merely death of Mahesh Kumar will not affect the decree as has been passed by the Court below. In the first round, Mahesh Kumar died during the pendency of second appeal. The apex Court in Shakuntala Bai [2004(2) Vidhi Bhaswar 117 (SC)] considering the question held that the suit for eviction of tenant from the accommodation let for nond`residential purpose may be instituted by the landlord for the purpose of his business or that of any of his major son, if he is the owner of accommodation.... the landlord has come up with the plea that after the death of Mahesh Kumar, business shall be carried by his son Santosh or Bhagwandas and the decree passed in favour of landlord cannot be set aside merely because of death of Mahesh Kumar during the pendency of second appeal in the first round. 2004(2) Vidhi Bhasvar 117 (SC) followed. [Para 6
(2) Accommodation Control Act, 1961 (M.P.) -- S. 12(1)(d) -accommodation not used for three years by tenant -- no reasonable cause proved for not using u decree rightly granted. [Para 8
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¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½ ¼?k½ && vfHk/kkjh }kjk rhu o"kZ rd LFkku mi;ksx esa ugha yk;k x;k && mi;ksx ugha djus ds fy, ;qfDr;qDr dkj.k lkfcr ugha fd;k x;k && fMØh Bhd&gh iznku dh xbZA ¿ iSjk 8À
1. This appeal is by tenant who suffered a decree of eviction under section 12(1)(d)(f) and (g) of M.P. Accommodation Control Act, 1961 (hereinafter referred as "Act" for short). The appeal is heard on admission.
2. This judgment and decree has been assailed by the tenant on following grounds:
(i) That though there is decree for eviction under section 12(1)(f) of the Act, but in fact the suit was filed for the bona .fide necessity to start the business of Mahesh Kumar. During the pendency of appeal, Mahesh Kumar died so the respondents filed an application to amend the pleadings by showing the need of Santosh Kumar, but this application was not allowed by the appellate Court. Thereafter the appeal filed by the tenant was dismissed which was challenged in Second Appeal No. 98/1996. By judgment dated 2.8.2004 the matter was remanded by the High Court to the lower appellate Court to decide it afresh. But the appellate Court again granted the decree. As the son of landlord, whose need was pleaded, has died during the pendency of appeal then the need, if any, has vanished and no decree under section 12(1)(f) of the Act may be passed.
(ii),That under section 12(1)(d) of the Act it is necessary that the accommodation should not be used by the tenant immediately preceding 6 months from the date of filing of the suit, but in this case, the landlord has failed to plead and prove this ground and no decree ought to have been passed against the tenant on this ground.
(iii) The trial Court had not granted decree under section 12(1)(d), but granted decree only under section 12(1)(f) & (h). The landlord had not filed any cross-objection or cross-appeal but the appellate Court erred in granting decree under section 12(1)(d) of the Act. So far as the ground under section 12(1)(g) is concerned, there is no pleading and in fact the pleadings relate to the ground under section 12(1)(h) while the decree has been passed under section 2(1)(g). It is submitted by the appellant that this appeal may be admitted for tinal hearing and the judgment and decree passed by the Court, below may be set aside.
3. Learned counsel appearing for respondent" supported the judgment and decree and submitted that though the suit was filed for bona .fide necessity of Mahesh, but he died during the pendency of second appeal on 29.6.1992. As the decree was passed in favour of landlord for the bona fide need, the said need is still continuing and Santosh Kumar who is the real brother of Mahesh Kumar shall continue the business. It is submitted that once a decree on the ground of bona fide necessity is passed, it cannot be reversed merely on the ground of death of a person whose need was found proved by the trial Court and landlord is entitled for the fruits, reliance is placed to the apex Court judgment in Shakuntalabai and others v. Narayan Das and others [2004(2) Vidhi Bhasvar 117=AIR 2004 SC 3484]. Shri S.A. Sobhani submitted that so far as the ground under section 12(1)(g) is concerned he is not pressing it, but so far as ground under section 12(1)(d) is concerned, it is proved that the suit shop was not used without any reasonable cause for which it was let for a continuous period of six months immediately preceding the date of filing of suit for the recovery of possession. It is concurrent finding of fact, which needs no interference. It is submitted that this appeal is without merit, does not involve any substantial question of law and may be dismissed at the admission stage itself.
4. To appreciate rival contention of the parties it will be appropriate to state facts of the case. Following facts are not in dispute:
(i) The suit was filed for the bona fide necessity of Mahesh Kumar for his tailoring business. The trial Court vide judgment and decree dated 16.3.1995 decreed the suit holding that the suit accommodation is bona fidely required by the landlord for tailoring business of his major son Mahesh Kumar. The judgment and decree passed by the trial Court was
