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1997 Supreme(MP) 213
1997 (2) JLJ 193
A.R. Tiwari, J.
Badamilal Dubey v. Chandra Prakash and others
S.A. No. 106 of 1994; against the judgment and decree passed by 1st Addl.
District Judge, Ujjain, in Civil Appeal No. IO-A of 1987, reversing the judgment and decree passed by 2nd Civil Judge Class 2, Ujjain, in Civil Suit No. 145-A of 1984; Decided on 17.4.1997.
M.S. Jain for appellant; Umesh Maheshwari for respondent No.1.
Headnote:(1) Justice -- legal justice -- should not be allowed to become a leasing illusion or promise of unreality. [Para 1]
(2) Evidence Act, 1872 -- S. 138 -- assertion not disputed in cross-examination -- should be taken as correct/truthful. 1989 MPLJ 690 relied on. [Para 10]
(3) Accommodation Control Act, 1961 (M.P.) -- S. 12 (1) (c) -- expression "act inconsistent with the purpose" -- is independent and separate from expression "act which has likely hood of affecting adversely and substantially the interest of the landlord therein" -- provision does not speak of whole or part of accommodation. [Para 15 (4) Interpretation of Statutes -- no word or words can be added or subtracted -- no material can be altered. . [Para 15]
(5) Accommodation Control Act, 1961 (M.P.) .. S. 12 (1) (c) -- denial of landlord‘s title -- sufficient to pass decree against tenant. 1988 JLJ 693 (DB) relied on. [Para 17]
(6) Accommodation Control Act, 1961 (M.P.) -- S. 12 (1) (c) -- inconsistent act proved -- not necessary to prove further that such act is likely to affect adversely and substaintially the interest of landlord. 1979 MPRCJ 110 and 1979 MPRCJ N. 15 relied on. [Para 18]
(7) Accommodation Control Act. 1961 (M.P.) -- S. 12 (1) (c) -- Transfer of Property Act, /882 -- S. 108 (o) .- provisions are in accord with each other -- inconsistent user is forbidden --long use or acquiescence even offers no shield.
1995 SC and FB Rent Cases 179, AIR 1993 SC 2646 and AIR 1993 SC 1574 followed. [Para 20]
(8) Law -- has to lead to justice and avoid injustice. . [Para 23]
(9) Civil P.C., 1908 -- S. 100 -- finding of fact -- is binding. AIR 1990 SC 2212 followed. [Para 27]
¼1½ U;k; && fof/kd U;k; && rax djus okyh ejhfpdk vFkok vokLrfodrk dk opu ugha cuus fn;k tk ldrkA ¿ iSjk 1À
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 138 && izfrijh{kk esa izk[;ku dk fojks/k ugha fd;k x;k && lgh@lp ekuk tk,xkA 1989 ,e ih ,y ts 690 voyafcrA ¿ iSjk 10À
¼3½ LFkku fua=;.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½ ¼x½ && vfHkO;fDr *iz;kstu ls vlaxr dk;Z* && vfHkO;fDr *dk;Z ftlls Hkw&Lokeh ds mlesa ds fgr ij izfrdwyr% rFkk lkjr% izHkko iM+rk laHkkO; gS** ls Lora= rFkk i`Fkd~ gS && mica/k esa laiw.kZ LFkku vFkok mlds Hkkx ds ckjs esa ugha dgk x;k gSA ¿ iSjk 15À
¼4½ fof/k dk fuoZpu && dksbZ ‘‘kCn vFkok ‘‘kCn lewg tksMs+ vFkok ?kVk, ugha tk ldrs && dksbZ lkexzh ifjofrZr ugha dh tk ldrhA ¿ iSjk 15À
¼5½ LFkku fua=;.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½ ¼x½ && Hkw&Lokeh ds gd dk izR;k[;ku && vfHk/kkjh ds fo#) fMØh ikfjr djus ds fy, i;kZIr gSA 1988 ts ,y ts 693 ¼[kaM U;k;ihB½ voyafcrA ¿ iSjk 17À
¼6½ LFkku fua=;.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½ ¼x½ && vlaxr dk;Z lkfcr && blds vfrfjDr ;g lkfcr djuk vko‘;d ugha gS fd ,sls dk;Z ls Hkw&Lokeh ds fgr ij izfrdwyr% rFkk lkjr% izHkko iM+uk laHkkO; gSA 1979 ,e ih vkj lh ts 110 rFkk 1979 ,e ih vkj lh ts uks 15 voyafcrA ¿ iSjk 18À
¼7½ LFkku fua=;.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½ ¼x½ && laifÙk varj.k vf/kfu;e] 1882 && /kkjk 108 ¼.k½ && mica/k ,d nwljs ds vuq:i gSa && vlaxr iz;kstu fuf"k) gS && nh?kZdkyhu iz;ksx vFkok miefr }kjk Hkh dksbZ izfrj{k izkIr ugha gksrhA 1995 ,l lh ,aM ,Q ch jsaV dslst 179] , vkb vkj 1993 ,l lh 2646 rFkk , vkb vkj 1993 ,l lh 1574 vuqlfjrA ¿ iSjk 20À
¼8½ fof/k && }kjk U;k; dh iwfrZ gksuk pkfg, rFkk vU;k; ls cpkoA ¿ iSjk 23À
¼9½ flfoy izfØ;k lafgrk] 1908 && /kkjk 100 && rF; dk fu"d"kZ && ck/;dkj gSA , vkb vkj 1990 ,l lh 2212 vuqlfjrA ¿ iSjk 27À
1. Legal justice should not be allowed to become a teasing illusion or promise of unreality. When litigation goes on and on, it is time that litigants learnt three percepts, inscribed on the wall of the Harvard Law School Library, taken from Justinian's Institutes, of Law -
''To live honorably, not to injure another, to render each his due". The object of law is to render each his due and to establish harmony, not antimony, with justice.
2. This is one more lis between tenant and landlord which has attained the age of 14 years. Period of this enormity is prone to cause frustration in the minds of both the sides. After all, how long legal battle should continue?
3. Unsuccess in the first appellate Court has led the tenant to take recourse to this second appeal under section 100 of the Code of Civil Procedure. This appeal is directed against the judgment and decree dated 18th March, 1994 passed by First Additional District Judge, Ujjain, in Civil Regular Appeal No. 10-A/87, thereby dislodging the judgment and decree dated 24.12.1986 passed by Second Civil Judge, Class-II, Ujjain, in C.A.S. No. 1 45-A/84 and decreeing the suit for eviction under section 12 (1) (c) of the M.P. Accommodation Control Act, 1961 (for short 'the Act').
4. Briefly stated, the facts of the case are that the appellant is the tenant in three rooms of first floor of House No. 86, Kshapanak Marg, Free Ganj, Ujjain, at monthly rent of Rs. 135.00 for residential purpose. Sum of Rs. 7.00 is being separately pa. towards water and electric charges as per meter. After quit notice, the suit for eviction was filed by original landlord Khairatilal. He expired during the pendency of the appeal. Respondents were brought on record as legal representatives. The trial Court, however, dismissed the suit. Chandra Prakash, one of the legal representatives, filed the first appeal impleading respondents No. 2 and 3 as respondents in the first appeal against the tenant. The first appeal was allowed and decree of eviction and recovery of rent/mesne profits under section 12 (1) (c) of the Act was passed. Dissatisfied, the tenant has filed this second appeal.
5. This second appeal was admitted for final hearing on 1.9.1994 on the following substantial questions of law :-
"(A) Whether merely by putting a T.V. workshop in a small portion of Varandeh would change the purpose of residential lease when the leased premises consisting of two rooms are still exclusively used for residence only ?
(B) Whether under the facts and circumstances the case decree for ejectment U/s. 12 (1) (c) of the Act can be passed on the ground of nuisance in absence of a finding that the alleged mischief is likely to affect adversely and substantially the interest of landlord?
6. I have heard Shri M.S. Jain, learned counsel for the appellant and Shri Umesh Maheshwari, learned counsel for respondent No.1, today. None appeared for respondents No.2 and 3.
7. The counsel for the appellant submitted that firstly mere installation of a TV Iradio workshop in a small portion of tenanted accommodation does not cause change or inconsistent user in terms of section 12 (1) (c) of the Act and secondly decree is also subvertible in the absence of pleading and proof that such an activity was likely to affect adversely and substantially the interest of the landlord therein. He has pressed into service 1992 (I) MPWN 72 (D.C. Oswal v. V.K. Subbiah); 1983 JLJ 61 N (Sachchidanand Garg<D. v. Govindlal); 1993 JLJ 569 (Aleamma (Smt.) v. Seth Meghraj); and 1992 MPLJ 449 (Shabbir Hussain Gulam Hussain v. Rubab Bai Inayat Hussain) in support of his submission. In the alternative. he urged that if this appeal is found unworthy of being allowed, then reasonable time to vacate may be granted.
8. The counsel for respondent No.1 has dubbed the aforesaid contentions as non-meritorious and has supported the decree. As to the prayer of time, he has signified' 'no objection" .
9. I proceed to examine the worth of rival contentions.
