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2000 (2) JLJ 379
J.G. Chitre, J.
Kailash Chandra Trivedi v. Punjab National Bank Ltd. and others
First Appeal No. 131 of 1997; against the judgment and decree of
II Additional District Judge, Indore, passed in Civil Suit No. 101-A of 1988;
Decided on 26.4.2000.
(2) Accommodation Control Act, 1961 (M.P.) -- S. 12(1)(f) -- suit for eviction - "non-availability of suitable nond`residential accommodation in occupation" should be pleaded -- accommodation in possession of tenant and eviction suit pending -- need not be pleaded. 1978 (1) MPWN 490 relied on. [Para 7
(3) Accommodation Control Act, 1961 (M.P.) -- S. 12(1)(f) -- starting of new business -- requirement of prominent place at main road is not unreasonable -- place situating in side street cannot be said to be suitable. 1985 MPWN 435 relied on. [Para 8
(4) Accommodation Control Act, 1961 (M.P.) -- Ss. 12(1)(e) and 12(1)(f) -- landlord has to decide manner of living -- he is best judge -- Court cannot dictate him how to live.
It is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient. it is not for the Courts to dictate to him to continue to occupy such premises. (1996) 5 SCC 344 and (1996) 5 SCC 353 followed. [ Para 9
(5) Accommodation Control Act, 1961 (M.P.) -- S. 12(1)(r) -- requirement of nond`residential accommodation -- mere assertion of landlord not enough -- he should prove his requirement objectively. 1965 JLJ 973 (SC), AIR 1998 SC 746 and 1975 JLJ 1 (SC) followed. [Para 10
(6) Accommodation Control Act, 1961 (M.P.) -- S. 12(1)(f) -- requirement for partnership business -- conditions of provision not fulfilled. AIR 1974 SC 1026 followed. [para 10
(7) Civil P.C., 1908 -- Ss. 96 and 100 -- criteria laid down for deciding second appeals are quite different from criteria to be adopted in first appeal -- in deciding first appeal Court acts as last Court of fact.
The criteria laid down for deciding the second appeals is quite different from the criteria which is to be adopted in deciding the first appeal. In first appeal the High Court acts as the last Court of facts but that is not so in context with second appeals. In the first appeal, High Court has to appreciate the evidence also which has been adduced by the parties in support of rival contentions in view of the evidence on record. The High Court has to test whether the trial judge was right in drawing the conclusions. It is for the High Court to test the correctness, propriety and legality of the conclusions drawn by the Court in the case. [Para 11
(8) Accommodation Control Act, 1961 (M.P.) -- S. 12(1)(f) -- one office situating in residential house -- it is not unreasonable to have tenanted premises vacated and keep all offices in one building.
One office is situated in ancestral house. When that is so, it cannot be said to be unreasonable that the said family members may have a bona fide need to have all the offices near each other in one building.
That is always beneficial to them and that would be enabling them to have good communication between them as well as that would be also comfortable for them to have their family life in comfortable way. [para 13
(9) Words and Phrases -- word "appreciate" -- means always that it is to be understood by keeping one self in reasonable thinking position. [para 16
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz½ && /kkjk 12 ¼1½ ¼p½ && csn[kyh okn && bl ckjsa esa oknh Js‘Bre fu.kkZ;d gS fd mls dkjckj dgk¡ djuk pkfg,A 1978 ¼1½ ¼e-iz-½ ohDyh uksV~l 490 voyafcrA ¿ iSjk 7À
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz½ && /kkjk 12 ¼1½ ¼p½ && csn[kyh okn && **vf/kHkksx esa----- mi;qDr dksbZ vU; fuoklsrj LFkku ugha gksus dk vfHkokd~ fd;k tkuk pkfg, && LFkku vfHk/kkjh ds vf/kHkksx esa rFkk csn[kyh okn yafcr && vfHkokd~ djuk vko‘;d ugha gSA 1978 ¼1½ e-iz- ohDyh uksV~l 490 voyafcrA ¿ iSjk 7À
¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz½ && /kkjk 12 ¼1½ ¼p½ && u, dkjksckj dk izkjaHk && eq[; lM+d ij izeq[k LFkku dh vko‘;drk v;qfDr;qdr ugha && miekxZ esa fLFkr LFkku mi;qDr ugha dgk tk ldrkA 1985 e-iz- ohDyh uksV~l 435 voyafcrA ¿ iSjk 8À
¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz½ && /kkjk 12 ¼1½ ¼M½ rFkk 12 ¼1½ ¼p½ && thou dk <ax Hkw&Lokeh dks fofu‘pr djuk gksrk gS && og Js‘Bre fu.kkZ;d gS && mls dSls thuk pkfg, ;g U;k;ky; }kjk vkfn"V ugha fd;k tk ldrkA
;g Hkw&Lokeh dks fofuf‘pr djuk gksrk gS fd mls dSls rFkk fdl <ax ls thuk pkfg, rFkk viuh uSokfld vis{kk dk og Js‘Bre fu.kkZd gSA vfHk/kkjh ds :i esa vFkok vU; vk/kkj ij mlds vf/kHkksx dh laifÙk vlqjf{kr vFkok vlqfo/kktud gksus ds dkj.k ;fn Hkw&Lokeh viuh Lo;a dh laifÙk dh Qk;nkizn miHkksx djuk pkgrk gS rc U;k;ky;ksa }kjk mls ,sls ifjlj dk vf/kHkksx djus ds fy, vkfn"V ugha fd;k tkuk pkfg,A ¼1995½ 5 ,l lh lh 344 rFkk ¼1996½ 5 ,l lh lh 353 vuqlfjrA ¿ iSjk 9À
¼5½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz½ && /kkjk 12 ¼1½ ¼p½ && fuoklsrj LFkku dh vko‘;drk && Hkw&Lokeh dk izk[;ku ek= i;kZIr ugha gS && mls viuh vko‘;drk oLrqijd :i ls lkfcr djuk pkfg,A 1965 ts ,y ts 973 ¼mPpre U;k-½ , vkb vkj 1998 ,l lh 746 rFkk 1975 ts ,y ts 1 ¼mPpre U;k-½ vuqlfjrA ¿ iSjk 8À
¼6½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz½ && /kkjk 12 ¼1½ ¼p½ && Hkkxhnkjh dkjksckj ds fy, vko‘;drk && mica/k dh ‘krksZa dh iwfrZ ugha gqbZA , vkb vkj 1974 ,l lh 1026 vulqfjrA ¿ iSjk 10À
¼7½ flfoy izfØ;k lafgrk] 1908 && /kkjk 96 rFkk 100 && f}rh; vibysa fofuf‘pr djus ds fy, vf/kfyf[kr ekunaM] izFke vibysa esa vaxhd`r fd, tkus okys ekunaMksa ls cgqr fHké gS && izFke viby ds fofu‘p;u esa U;k;ky; }kjk rF;ksa ds fy, vafre U;k;ky; ds :i esa dkjZokbZ dh tkrh gSA
f}rh; vihyasa fofuf‘pr djus ds fy, vf/kfyf[kr ekunaM] izFke viby ds fofu‘p;u ds fy, vaxhd`r fd, tkus okys ekunaMksa ls cgqr fHké gSA izFke viby esa mPp U;k;ky; }kjk rF;ksa ds fy, vafre U;k;ky; ds :i esa dkjZokbZ dh tkrh gS ijarq f}rh; vihyksa ds lanHkZ esa ,slk ugha gSA izFke vihy esa] mPp U;k;ky; }kjk vfHkfyf[kr lk{; dh n`f"V ls ml lk{; dk Hkh ewY;kadu fd;k tkuk gksrk gS tks i{kdkjksa }kjk ijLijfojks/kh izfroknksa ds leFkZu esa is‘k fd;k x;k gksA mPp U;k;ky; }kjk ij[kk tkuk gksrk gS fd fopkj.k U;k;k/kh‘k us fu"d"kZ lgh fudkys Fks vFkok ughaA ekeysa eas U;k;ky; }kjk fudkys x, fu‘d‘kksZa dh ‘kq)rk] vkSfpR; rFkk oS/krk dk mPp U;k;ky; }kjk ij[kk tkuk gksrk gSA ¿ iSjk 11À
¼8½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz½ && /kkjk 12 ¼1½ ¼p½ && ,d dk;kZy; uSokfld edku esa fLFkr ^^ vfHk/k`r ifjlj fjDr djk ds lc dk;kZy; ,d bekjr esa j[kuk v;qfDr;qDr ugha gSA
,d dk;kZy; iSrd edku esa fLFkr gSA tc ,slk gS rc bls v;qfDr;qDr ugha dgk tk ldrk fd mDr dkSVqfcd lnL;ksa dh lc dk;kZy; ,d nwljs ds fudV ,d&gh bekjr esa j[kus dh ln~Hkkfod vko‘;drk gks ldrh gSA og muds fy, lnk Qk;nkizn gS rFkk mlls og vius e/; vPNk laidZ dj ldus esa leFkZ gksaxs rFkk viuk ikfjokfjd thou Hkh lq[kn j[k ldsaxsA
¿ iSjk 8À
¼9½ ‘‘kCn rFkk okD; && ‘‘kCn *ewY;kadu** && dk lnk vFkZ gS fd Lo;a dks ;qfDr;qDr fopkj dh fLFkfr esa j[k dj mls le>uk gksxkA ¿ iSjk 8À
1. Appellant has claimed possession of the premises admeasuring 2580 sq.ft. area in possession of the respondents situated on Maharani Road (hereinafter referred to as 'the suit premises' for convenience). He averred that the appellant is having the Joint Hindu Family consisting of himself, his mother, wife, two sons and two daughters. He averred that all these members have a join Hindu Family running a business as well as he himself, his wife, sons engaged in business independently also. According to his averment his son Sunil Trivedi is running a business under the style "Eharat Timber Trading Company". Other son Sanjay is running a steel business under the style "Sanjay Steel". His wife Chandrabala Trivedi is having partnership firm with Kailash Gupta under Style "Kailash & Kailash".
2. According to the averments of the plaintiff-appellant he does not have proper place for having the offices and that is the case also with other family member. Therefore, all the family members have scattered offices. It is the averment of the appellant that they all want to come together in one building so as to make them convenient to go for trade and, therefore, the suit premises in possession of respondents are being genuinely and bonafidely required by him for his bona fide need.
3. Appellant pointed out that he entered with the respondents into an agreement in respect of the tenancy of the suit premises on 1.5.1971 which was for a specific period and was to end by 30.4.86. the said tenancy ended by the end of 30.4.86 and thereafter it was not renewed by the respondents. Therefore, he directed the respondents to hand over the vacant possession of that suit. premises by issuing suit notice Ex. P/1 dated 25.5.86 which was replied to by the respondents by their reply dated 14/25 June, 1986. Again there was exchange of notices in context with the initial suit notice. Lastly, the suit came to be filed in the Court on 13.1.87. Written 'statement was fi1ed by respondent's on 18.6.87. The issues were framed which revolved around the said bona fide need of the appellant for opening his offices in the suit premises. Additional issue also indicated that whether the area handed over in vacant possession of the appellant by Bank of India was sufficient enough to make good the said requirement of the appellant.
4. The 2nd Additional District Judge. Indore, by his judgment dated 24.1.97 answered the issues by holding that the appellant, his wife and adult sons did not require the suit -premises for their bona fide need. He also held that there was no alternative accommodation available to the appellant for completing his said need in Indore city. He held that on 30.4.86 the tenancy between the appellant and respondents did not automatically extinguished. He also held that the area which has been handed over in vacant possession to the appellant by Bank of India was sufficient enough to make good the said requirement of the appel1ant and that judgment and decree has been put to challenge by this appeal by the appellant.
5. So far as the termination of tenancy is concerned. it appears from the judgment of the trial Court that said point was not contesting though an issue was framed. 'The contest between the parties was on two points only and those two points were (i) whether there is alternative accommodation available to the appellant in Indore to start his business and (ii) whether the need is bona fide and genuine. the trial Court held that the appellant did not have any alternative accommodation in Indore to start the business. However, he held that the need expressed by the appellant in the suit was not genuine and bona fide. While discussing these two issues he expressed that the portion of the premises handed over to the appellant in vacant condition by Bank of India was sufficient enough to start his business in it.
6. The appellant has examined himself and his son Sunil to prove his case and the respondent examined Ashok Kumar Sethi, the Bank
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