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High Court Of Madhya Pradesh
A. R. Navkar, J.
GYANCHAND DARSHANLAL
Versus
BALKISHAN
Decided On : Sep 07,1979
(2) Accommodation Control Act, 1961 (MP) - S. 12 (1) (f) - genuine requirement under-finding regarding-when open for consideration in second appeal - Civil P, C., 1908 - S. 100.
The question of genuine requirement can be considered by this Court if some material evidence has not been considered by the appellate Court. Secondly, there can be interference by this Court if the Court comes to the conclusion that the view taken by the appellate Court is not the view which a reasonable man will take. Thirdly, if the appellate Court has not applied correct principles of law in coming to a finding regarding genuine requirement, then also that finding can be interfered with
The plaintiffs has produced rent-note to show plaintiff No. 3 in the rented shop. The appellate Court has not considered this document at all. There is not even mention of this important document in the judgment of appellate Court. Therefore this important evidence has not been taken into consideration by the appellate Court and on this point also I can interfere in the judgment passed by the learned appellate Court. 1975 JLJ 1 (SC), AIR 1973 SC 585, 1976 JLJ 655, AIR 1971 SC 1049 and 1978 JLJ 208 relied on [Paras 6, 7 & 11
(3) Accommodation Control Act, 1961 (MP) - S. 12 (1) (f) - shop belonging to joint family-whether need of a member of such family falls under this provision-expansion of family business when need not be proved.
If the property belongs to the joint family, then plaintiff No.3 being the member of the joint family will become the owner of the shops and also one of the landlords. Therefore, the need of one of the landlords for doing business can be a need under section 12 (1) (f) of the Act for getting vacant possession of the shop belonging to the joint family. Secondly, the case of the plaintiffs is not that of expansion of the joint family business. It is a case that a member of the joint Hindu family wants to start an altogether a new business. May be, he wants to start the business in the capacity of his being a member of the joint Hindu family, but, that will not make any difference. His need as a member of a joint Hindu family will not make any material difference if the business he wants to start is a new business. Therefore, the appellate Courts finding that as it is a business of joint Hindu family, the plaintiffs should have proved that the business has expanded, cannot be accepted 1962 JLJ SN 177 relied on. [Para 9
(4) Accommodation Control Act, 1961 (MP) - S. 12 (1) (f) - area of accommodation required-judging of - capacity of rented accommodation with landlord - a material circumstance for consideration.
There cannot be any dispute that the will of the landlord should be given due weight and it is the duty of the Court to see that it is not the whim of the landlord that should be respected. Therefore, the question now is what is exactly the need of the plaintiff.
The plaintiffs had produced the rent note. The fact that under this rent note, the portion which was mentioned therein was not disputed by the defendant in which Plaintiff No.3 was carrying on cloth business.
Held: Therefore, what is mentioned in the rent note has to be accepted as correct. If this position is accepted, then as a reasonable man it will be presumed that this much accommodation, plaintiff No.3 wants if he wants to carry his business in his own shops. There is nothing whimsical in asking by plaintiff No.3 for at least this much accommodation and to get this much accommodation, he has stated in his plaint. [Para 11
( 1. ) THIS is an appeal against the Judgment and decree passed by the Third Additional District Judge, Gwalior in Civil Appeal no. 76-A of 1977, reversing the judgment and decree dated 1-4-1977, passed by the Third Civil Judge, Class II, Gwalior in Civil Suit No. 39-A of 1973.
( 2. ) THE suit of the plaintiffs in the trial Court was on the following allegations. Plaintiffs Gyanchand, Surajmal and Radheshyam are real brothers and they constitute a joint Hindu Family. Gyanchand is the Karta of the family and the House No. 33 /96, situate at Sadar Bazar, Morar is a joint Hindu Family property. The defendants also constitute a joint Hindu family and defendant No. 1 Balkishan is the Manager and Karta of the family and he does the business in the disputed shop, which belongs to the plaintiffs. Defendants are Balkishan, Shrilal, Ramesh who are sons of Ramcharan and santobai is the widow of Ramcharan. The plaint further says that deceased ramcharan took on rent the disputed shop at Rs. 25 and a rent-note was executed on 23-6-1966 in favour of the plaintiffs Nos. 1 and 2 only as plaintiff no. 3 was minor at that time. The disputed shop is marked by red ink in the map which is filed along with the plaint. Ramcharan is now no more and defendants Nos. 1 to 4 are the legal representatives. The tenancy is a monthly tenancy and it starts on the first of every month. Defendants are paying the rent and are in possession of the shop as tenants.
( 3. ) AT present the plaintiffs are carrying on their business in the name of Sojiram Vidhichand and they are dealing in gold and silver ornaments. This business is done by plaintiff No. 1 in one of the shops which is owned by the joint Hindu Family. Plaintiff No. 2 is doing business in firm Ramjidas surajmal, which is a registered firm. The business carried on by this firm is of selling and buying utensils. Plaintiff No. 3 is without any business and, therefore, the plaintiffs genuinely need the disputed shop for carrying on the business of cloth which will be run by plaintiff No. 3. For the said purpose they have no reasonably suitable alternative accommodation in their possession in the city. The plaintiffs have two shops in their possession, but they are in a lane and adjacent to those shops, there are shops of sweet-meat makers and as such, those shops are not suitable for carrying on the business of cloth. Even otherwise, in this portion of the house, the material for constructing the house is stored and as such, plaintiff No. 3 is in need of the disputed shop for carrying on his business of cloth. The plaintiffs have funds with them also. Defendants are not paying the rent regularly and they are in arrears of rent from 1-11-1970. A notice of demand was sent to them on 17-11-1972, but in spite of that notice, the arrears of rent have not been paid by the defendants to the plaintiffs. Therefore, they are defaulters regarding the payment of rent and on the basis of default, the plaintiffs are entitled to get possession of the disputed shop. A notice terminating the tenancy of the defendants was served on them on 24-11-1972 and by the said notice, the tenancy was terminated from 31-12-1972. In the said notice, an option was given also that if the defendants feel that their tenancy comes to an end on different date than 31-12-1972, then they may treat their tenancy terminated on the said date and should vacate the suit premises. Then the plaint allegations say regarding cause of action and payment of court-fees and the relief. The suit was filed on 6-2-1973.
( 4. ) HERE, it will be better to mention that the plaintiffs amended their plaint on 7-4-1975 and on 11-11-1975. By first amendment, they alleged that in the month of October, 1974, plaintiff No. 3, who was sitting idle upto that date, has taken a shop on rent at Sadar Bazar, Morar and he is carrying the business of cloth in the rented shop. He wants to open the business in his own shop and, therefore, he wants the disputed shop to be vac
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