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1994 JLJ 174
Dr. T.N. Singh, J.
Bhagwandas Pawaiya v. Regd. Firm Kailash Narain and Bros.
S.A. No.9 of 1983; against the judgment and decree passed by Shri D.P. Pandey, District Judge, Gwalior, in Civil/Appeal No. 15-A of 1982, confirming the judgment and decree passed by Smt. Manjusha Namjoshi, 3rd Civil Judge, Class I, Gwalior in Civil Suit No. 2-A of 1978; Decided on 20.12.1990.
(2) Accommodation Control Act, 1961 (M.P.) -- S. 12 (1) (d) -- no local witness examined -- inspection not carried out -- no decree in absence of specific pleading and cogent evidence can be passed. [Para 10
(3) Transfer of Property Act, 1882 -- S.108 (m) -- right of landlord in demanding inspection of rented accommodation -- is available even in places where rent control legislation is in force. AIR 1979 SC 1745 followed. [Para 9
(4) Accommodation Control Act, 1961 (M.P.) -- S.12 (1) (d) -- right to get eviction of tenant under -- is to be specifically pleaded and proved by landlord -- burden shifts upon tenant to prove "reasonable cause" for non-user. 1986 JLJ 713 relied on. . [Para 11
(5) Accommodation Control Act, 1961 (M.P.) -- S.12 (1) (d) -- provision is for the purpose that premises in town do not remain unused at the instance of tenants -- evidence to prove the fact that tenant does not need the accommodation any more should be adduced. AIR 1990 SC 879 followed. AIR 1990 HP 79 and 1976 MPLJ SN 41 distinguished. [Para 13
(6) Accommodation Control Act, 1961 (M.P.) -- S.12 (1) (e) and if) -entitlement of landlord for getting the premises under -- should exist till the final decree for eviction is made. 1981 JLJ 716 (sq followed. [Para 16
(7) Accommodation Control Act, 1961 (M.P.) -- S.12 (1) if) -- suit shop required for running a restaurant -- another shop suitable for the purpose acquired during pendency of first appeal -- landlord not entitled to decree of eviction under -- need came to an end. 1981 JLJ 716 (sq, AIR 1987 SC 741, 1987 (I) MPWN 147 and 1987 MPRCJ (N) 62 relied on. AIR 1976 SC 2335 and AIR 1977 SC 1599 distinguished. [Paras 17 to 19
(8) Civil P.C., 1908 -- O. 41, R.22 -- independent ground of eviction Wider -- cannot be considered in absence of cross of objections. [Para 20
(9) Accommodation Control Act, 1961 (M.P.) -- S. 12 (1) -- various grounds of eviction enumerated under various clauses -- are independent cause of actions -- even if claim of eviction is founded on several of them cumulatively -- Court can pass decree only on ground found proved -- suo motu consideration is not the business of Court. [Para 20
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½ ¼d½] 12 ¼3½ rFkk 13 & vfHk/kkjh }kjk HkkM+s dk fu{ksi] ;|fi foyac ls & Hkw&Lokeh }kjk fu{ksi esa foyac ds çfr dksbZ vkifRrÙk fd, fcuk fudkyk x;k & foyac ;k rks vf/kR;ftr fd;k x;k vFkok ekQ fd;k x;k & /kkjk 12 ¼1½ ¼d½ ds v/khu csn[kyh dh fMØh ikfjr ugha dh tk ldrh & HkkM+k fu"iknu dk;Zokgh esa Hkh fuf{kIr fd;k tk ldrk gSA 1988 ts ,y ts 213 rFkk 1990 ts ,y ts 434 voyafcrA ¼1988½ 1 ,l lh lh 363 çHksfnrA ¿iSjk 3 ls 5
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½ ¼?k½ & fdlh LFkkuh; lk{kh dh ijh{kk ugha dh xbZ & fujh{k.k ugha fd;k x;k & fofufnZ"V vfHkopu vFkok rdZiw.kZ dkj.kkas ds vHkko esa fMØh ikfjr ugha dh tk ldrhA ¿iSjk 10
¼3½ laifÙk varj.k vf/kfu;e] 1882 & /kkjk 108 ¼M½ & Hkw&Lokeh }kjk HkkM+s ij fn, x, LFkku ds fujh{k.k dh ek¡x dk vf/kdkj & mu LFkkuksa ij Hkh miyC/k gS tgk¡ HkkM+k fu;a=.k fo/kku ço`Ùk gSA , vkb vkj 1979 ,l lh 1745 vuqlfjrA ¿iSjk 9
¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½ ¼?k½ & ds v/khu vfHk/kkjh dks csn[ky fd, tkus dk vf/kdkj & Hkw&Lokeh }kjk fofufnZ"V :Ik ls vfHkopfur vkSj lkfcr fd;k tkuk gksrk gS & vuqi;ksx ds fy, ^^;qfDr;qDr dkj.k** lkfcr djus dk Hkkj vfHk/kkjh ij vk tkrk gSA 1986 ts ,y ts 713 voyafcrA ¿iSjk 11
¼5½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½ ¼?k½ & mica/k bl ç;kstu ds fy, gS fd uxj ds ifjlj vfHk/kkfj;ksa ds vuqjks/k ij vç;qDr u jgsa & ;g rF; lkfcr djus ds fy, fd vfHk/kkjh dks LFkku dh vkxs vkSj vko‘;drk ugha gSa] lk{; çLrqr fd;k tkuk pkfg,A , vkb vkj 1990 ,l lh 879 vuqlfjrA , vkb vkj 1990 fgekpy çns‘k 79 rFkk 1976 ,e ih ,y ts ,l ,u 41 çHksfnrA ¿iSjk 13
¼6½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½ ¼M-½ rFkk ¼p½ & ds v/khu ifjlj çkIr djus dh Hkw&Lokeh dh gdnkjh & csn[kyh ds fy, vafre fMØh ikfjr gksus rd fo|eku jguk pkfg,A 1981 ts ,y ts 716 ¼mPpre U;k-½ vuqlfjrA ¿iSjk 16
¼7½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½ ¼p½ & oknk/khu nqdku mikgkj x`g lapkfyr djus ds fy, visf{kr & çFke vihy yafcr jgus ds nkSjku ml ç;kstu ds fy, mi;qDr ,d vU; nqdku çkIr & Hkw&Lokeh bl mica/k ds v/khu csn[kyh dh fMØh dk gdnkj ugha gSa & vko‘;drk lekIr gks xbZA 1981 ts ,y ts 716 ¼mPpre U;k-½] , vkb vkj 1987 ,l lh 741] 1987 ¼1½ e-ç- ohDyh uksV~l 147 rFkk 1987 ,e ih vkj lh ts ¼,u½ 62 voyafcrA , vkb vkj 1976 ,l lh 2335 rFkk , vkb vkj 1977 ,l lh 1599 çHksfnrA ¿iSjk 17 ls 19
¼8½ flfoy çfØ;k lafgrk] 1908 & vk-41 fu-22 & ds v/khu csn[kyh dk Lora= vk/kkj & çR;kifÙk ds vHkko esa fopkj ugha fd;k tk ldrkA ¿iSjk 20
¼9½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½ & fofHkUu [kaMksa esa çxf.kr csn[kyh ds fofHkUu vk/kkj & Lora= okn gsrqd gSa & csn[kyh dk nkok muesa ls vusd ij lap;h :Ik ls vk/kkfjr gksus ij Hkh & U;k;ky; dsoy lkfcr gq, vk/kkj ij fMØh ikfjr dj ldrk gS & Loçsj.kk ls fopkj djuk U;k;ky; dk dk;Z ugha gSaA ¿iSjk 20
Dr. T.N. Singh, J.--1. Defendant/appellant is a tenant for whose eviction two Courts have passed decrees under section 12(1) of the M.P. Accommodation Control Act, 1961, for short, the' Act'. Trial Court found case of landlord/plaintiff (herein respondent) proved under clauses' (a), (d) and (t) and not proved under clause (k) of section 12 (1), appellate Court passed decree only on two grounds envisaged under clauses (a) and (d).
2. By way of preface, it is necessary to say a few words also at the outset about cross-objection of the respondent/plaint. If The contention which is seriously pressed in the cross-objection is that the lower appellate Court acted illegally in exercising its powers under Order 41 Rule 27, CPC by allowing the defendant/appellant to bring on record the subsequent event that during pendency of the appeal, alternative accommodation for business had become available to the plaintiff and, therefore, the "bona fide" requirement of the plaintiff, as claimed by him, had been fulfilled. In regard thereto, it is stated that the shop which was vacated by M/s. Prasad Papers on 23.8.1982 could be used for starting sweet-meat business of partner Kailash Narayan and the suit shop would be used for starting a restaurant, to be' run by the firm. In the course of his argument, Shri Mittal, who appears for plaintiff/respondent, also submitted that in any case, the suit could be also decreed in terms of clause (k) as well because the trial Court acted illegally in refusing eviction on that ground. At this stage, about that contention, suffice to say this much only that in the lower appellate Court no cross-objection was preferred in that regard.
3. Appellant's counsel, Shri Lahoti has rightly submitted that in view of the law declared by this Court, which was not available to the lower appellate Court in 1982 when decision was rendered in the appeal, eviction cannot be decreed, in the facts and circumstances of the case, on the ground envisaged under clause (a). During course of hearing, a statement was filed showing rent deposited on different dates in the Court below from 24.1.1980 to 9.11.1990. It is claimed that eleven months' rent has been deposited in excess. That apart, he draw my attention to the order passed in this appeal on 13.11.1984 to submit that even if there had been late deposit, that had been condoned thereunder. He is right. It is recorded in the order passed in this appeal on 13.11.1984 - "It is an undisputed position that the respondent was withdrawing the amount in the trial Court also that was being deposited by the appellant under Sec. 13 of the M.P. Accommodation Control Act, 1961. In view of this, this application deserves to be rejected and is, accordingly, rejected." be it noted that by the same order, six I.A's were disposed of I.A. No. 4470/84 was for condonation of delay in depositing costs and I.A. No. 4471/84 was for non-disbursal of the rent deposited as entitlement of plaintiff/respondent to receive that was disputed. Interestingly, those applications were made by defendant/appellant, but I.A. No. 4460/84, also disposed of by the same order, was preferred by the plaintiff/respondent. No objection was raised in regard to late deposit of rent in any Court below in that application. By rejecting I.A. No. 4471/84 the Court allowed the prayer of plaintiff/respondent made in I.A. No. 4460/84 for disbursement of the rent deposited. He claimed "benefit of the rent pendente lite". On facts, therefore, it is established beyond doubt that in terms of the provisions of section 13 of the Act, the tenant had been depositing rent for the suit premises in the Court below and even if, at any stage there was any delay, that was either waived or condoned.
4. Lachhobai Rathore (1987 MPRCJ 23 = 1988 JLJ 213), it is conceded 1t the Bar, still holds the field. True, Shri Mittal submitted that I have a second look at the law, but that I need not do because the decision is being still followed in this Cou
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