The grounds for eviction under Section 12(1)(c) and (d) of the M.P. Accommodation Control Act, 1961 are distinct and do not overlap, with clause (c) covering cases of change of user and clause (d) covering cases of non-user.

V.S. Kokje, J.

1. The appellant is a tenant of the respondent in the suit accommodation situated in House No. 14, Street No. 2, Maharani road, Indore. Admittedly the suit premises were let out for residential purpose. The respondent plaintiff brought a suit for ejectment of the appellant from the suit premises on the grounds under Sections 12(1 )(a) and (d) of the M.P. Accommodation Control Act, 1961 (hereinafter called 'the Act'). This suit was registered as C.O.S. No. 272-A/84 in the Court of IXth Civil Judge, Class II, Indore. After trial the suit was dismissed on 25-11-1986 on both the counts. In Civil Regular Appeal No. 1 of 1987-A, the Vlllth Additional Judge to the Court of District Judge, Indore reversed the judgment and decree and passed a decree on the ground under Section 12(l)(d) of the Act alone. This is a second appeal against that judgment.

2. On 17-1-1990, the appeal was admitted on the following substantial question of law :

"Whether the facts of stitching by the wife of tenant-defendant-appellant, writing of accounts by the defendant-appellant and taking of meals by the defendant-appellant and his wife in the suit accommodation would constitute residential use of suit-accommodation and disentitle the plaintiff-respondent of decree for eviction under Section 12(l)(a) of the M.P. Accommodation Control Act, 1961 ?"

3. I have heard Shri K. N. Puntambekar, learned counsel for the appellant and Shri M. G. Upadhyaya, learned counsel for the respondent. Shri Puntambekar, learned counsel for the appellant contended that the first appellate Court had reversed the judgment and decree of the trial Court without discharging its duty to properly reappreciate the evidence on record. Relying on the decision in T.D. Gopalan v. Commr., Hindu Religious and Charitable Endowments, Madras, AIR 1972 SC 1716 the learned counsel submitted that the trial Court had given detailed and cogent reasons for not accepting the testimony of the plaintiff's witnesses and it was incumbent on the first appellate Court to give reasons as to why it was deferring from the view taken by the trial Court. The learned counsel further argued that the plaintiff did not examine herself in the case though she must have a personal knowledge about the facts in issue as she resided nearby the tenant. For this purpose Shri Puntambekar relied on the decision of Bombay High Court in Nanalal Goverdhandas & Co. and Ors. v. Smt. Samratbai Lilachand Shah, AIR 1981 Bom. 1. Shri Puntambekar further contended that clause (d) of sub-section (1) of Section 12 of the Act has to be distinguished from the clause (c) thereof. According to the learned counsel the grounds provided in these two clauses do not overlap but are independent of each other. According to him, clause (d) relates to total non-user of the premises by the tenant for a period of 6 months prior to the filing of the suit, whereas clause (c) relates to change of user by the tenant. He further submitted that in the facts of the present case there was actually no case made out under Section 12(l)(d) of the Act. It has not been proved that the premises were totally out of use. What the first appellate Court has found, is that it was not being put to residential use because food is not being cooked in the premises and the tenant has ceased to sleep in the tenanted premises. The learned counsel further submitted that the judgment of the first appellate Court is full of conjectures and surmises and is not based on legal evidence or lawful inferences.

4. Shri M. G. Upadhyaya, learned counsel for the respondent tried to defend the judgment and decree of the first appellate Court. According to him it was not necessary to examine the plaintiff as she could not have direct knowledge of the facts on which the suit was filed. According to him the plaintiff was a Pardanasheen lady and could not have the knowledge of the activities of the defendant. According to Shri Upadhyaya, onus to prove that the accommodation was bei