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1980 Supreme(MP) 197
High Court Of Madhya Pradesh
A. R. Navkar, J.
RAJ KUMAR RAMANAND
Versus
VED PRAKASH LAL KARAMCHAND
Decided On : Aug 20,1980
H.B.Mongol, M.L.GUPTA,
Headnote:(1) Civil P.C., 1908 - S.107(1)(d) - appellate Court-power of-it may take additional evidence of both partier.
The appellate Court on 16-11-1978 ordered that the Court will take evidence of both the parties and also will decide the point. This order is hotly attacked saying that the appellate Court was in error in taking additional evidence
Held: The powers of appellate Court are mentioned in section 107(1)(d) C.P.C. are clear on this point. It gives the appellate Court power to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. Therefore, there is nothing illegal in the appellate Court taking evidence of the parties. [Para 10]
(2) Civil P.C., 1908-O. 41, R. 27(1)(b) - words 'any other substantial cause' under-cannot be read with word 'requires' -words are not to be construed in narrower sense -power con be exercised for clarification in the interest of justice.
It was further submitted that 'any other sufficient reason' should be interpreted 'ejusdemgeneris'. that is to say, that the words 'for any other substantial cause' must be read with the words 'requires' in the beginning of the sentence, so that it is only where for 'any other substantial cause the appellate Court requires additional evidence', that this rule will apply.
This submission also, I cannot accept, because the words 'for any other substantial cause' need not be construed in a narrower sense suggested by the doctrine of 'ejusdemgeneris' and the power to allow additional evidence may be exercised when any point is required to be cleared up in the interest of justice. [Para 10]
The appellate Court was within its power in taking additional evidence and seeking that the case may not be delayed unnecessarily, it took upon itself to record the evidence of the parties. I also do not see anything wrong in it. AIR 1952 Nag. 248; 1958 JLJ 224, 1961 JLJ 864 and AIR 1951 SC 193 relied on. [Paras 12 to 14]
(3) Accommodation Control Act, 1961 (MP) - S.12(1)(f) - alternative accommodation not belonging to landlord but belonging to his wife-it cannot be termed to be his own.
The next submission made before me is that the property on which the Allahabad Bank stands and the building itself should be considered as an alternative accommodation and the appellate Court, after holding this, should have dismissed the suit of the plaintiff.
Held : To this, the simple answer it; that the property belongs to the wife of the plaintiff and it cannot be termed to be his own. The bare reading of the section itself shows that the alternative accommodation should be that of the landlord himself and that is not the case here. [Para 15]
(4) Accommodation Control Act, 1961 (MP) - S. 12(1)(a) and 13(2) - dispute raised under S. 13 (2) not decided-amount claimed as rent deposited-decree under S. 12(1)(a) cannot be passed. [Para 18]
(5) Accommodation Control Act, 1961 (MP) - S.12(1)(f) - bonafide need-to be judged at the time of filing of suit or serving notice-it varies from person to person, place to place and profession to profession.
It is true that in eviction suit, the genuineness of the need alleged is to be seen and not the genuiness of the landlord is to be seen. A need is not a static thing. In may opinion, the need will vary from person to person, place to place and from profession to profession.
He has filed the present suit in the year 1968 and had he got the vacant possession on 18.05.1963. The need of the plaintiff is to be judged at the time when he hay given the notice of eviction and at the most when the suit is filed. The plaintiff has filed the suit after over four years of getting possession, therefore, only on this aspect or the case, it cannot be held that the claim of the plaintiff is not genuine. Therefore, I reject the submission made by the learned counsel for the appellant. If the defendant feels that the claim of the plaintiff is not genuine even after giving possession, the defendant has enough checks against the non-genuine claim of the plaintiff under the Act, (1879) 11 Co. D; 856 relied on. [Para 19]
(6) Accommodation Control Act, 1961 (MP)-S. 12(6)-payment of compensation under-nature of-it is condition precedent for getting possession. [Para 20]
(7) Estoppel-there can be no estoppel against law. [Para 20]
( 1. ) THIS is an appeal against the judgment and decree, dated 2-3-1979, passed by the Third Additional District Judge, Gwalior in Civil appeal No. 92 of 1976, in appeal preferred against the judgment and decree dated 18-1-1972 passed by the Civil Judge, Class II, Gwalior, in Civil Suit no. 229a of 1969 CO.
( 2. ) THE suit of the plaintiff was filed for eviction and arrears of rent of an accommodation situated on Roshni Ghar Road," Lashkar. The plaint allegations are that the plaintiff owns a house, bearing Municipal No. 418, situated in Halka No. 21. On two sides of the house, there are shops and there is a lane in between the shops. In one of the shops, one Bhaget Singh buta Singh carries his business. In the other shop, the defendant has put up a lathe machine and carries his business there. The disputed shop was given on rent to the defendant on 18-5-1966 for 11 months at the rent of Rs. 135 per month. The period for notice of eviction was fixed at one month. The rent-note is executed by the defendant and it is for 11 months. A notice for eviction was given on 24-8-1968, in which arrears of rent due were demanded by the plaintiff from the defendant. The notice dated 24-8-1968 was received by the defendant on 6-9-1968. By the notice, the tenancy was terminated from 17-10-1968 with a condition that if the defendant thinks that his tenancy comes to an end on some other date, he should treat his tenancy terminated on that date and should vacate the disputed premises. In spite of the notice, the defendant did not pay the arrears of rent and electricity charges. The rent due from 18-12-1967 to 17-11-1968 was in arrears, the amount of which comes to Rs. 1,458. Out of this amount, the defendant paid Rs. 1,080 on 9-11-1968. After deducting this amount, the amount left over is Rs. 378. As to the electricity charges, he demanded Rs. 42 along with the rent. The grounds taken by the plaintiff for eviction are that the defendant did not pay the arrears of rent within two months of the service of notice or demand on him, i. e. , to say, the ground under section 12 (a) of the Madhya Pradesh accommodation Control Act, 1961 (hereinafter referred to as the Act ). The second ground taken was that the defendant has broken and also demolished the flooring of the disputed shop. It is further said that because of the working of lathe machine, it has created a nuisance to the persons who live in the house, the vibrations produced by the running of the lathe machine, make it difficult for the members of the family of the plaintiff to stay in their house. It has caused a substantial damage to the house itself.
( 3. ) THE last ground taken was that the plaintiff wants bona fide the nonresidential accommodation which is in the possession of the defendant for having his office. The plaintiff wants an office which is up-to-date because he is a Government Supplier of heavy bulk material Coal and feed, the fodder and for keeping watch over the materials which are stocked in the open space, he bona fide needs the disputed shop to have his office. At present, he has got only one cabin in his possession, but that is not sufficient to meet the needs of the plaintiff and for his need, he has no other alternative accommodation in the City of Gwalior. It is also alleged in the plaint, but not in clear terms, that the defendant is carrying business along with some other partners who are not the tenants of the plaintiff i. e. , to say, the defendant has created sub-tenancy which is not lawful. Therefore, taking into consideration all these allegations in short the plaintiff has filed the suit for eviction on the grounds mentioned under section 12 (l) (a), 12 (I) (b), 12 (l)
(c) and 12 (I) (f)of the Act.
( 4. ) THE defendant, in his written statement, has averred that the tenancy is a permanent one: that no amount of arrears of rent is due against him : that he has not created any nuisance as alleged by the plaintiff: that the amount of Rs. 270 which the pl
