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2018 Supreme(MP) 374
IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak, J.
Mahesh Prasad Mittal v. Smt. Jaitun and others
Second Appeal No. 38 of 2010 (Gwalior); against judgment dated 24.12.2009 passed by IV Additional District Judge (Fast Track), Shivpuri in Civil Appeal No. 10-A/2009 against judgment and decree dated 30.10.2009 passed by I Civil Judge Class-II, Shivpuri in
Civil Suit No. 75-A/2008; Decided on 15.5.2018
S. K. Shrivastava for appellant;
N. K. Gupta with Sanjay Sharma for respondents.
Headnote:(1) Accommodation Control Act, 1961 (M. P.) -- S.12 (1)(f) -- alternative accommodation must be owned by plaintiff -- no finding recorded by appellate Court on basis of any document that clinic at Indore is owned by plaintiff -- in absence of any specific finding, plaintiff could not have been nonsuited on this ground. (1999)6 SCC 222 followed. 2012(1) MPLJ 109, 2005(3) JLJ 97 and 2006(3) MPHT 292 relied on. [Paras 14 & 15
(2) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (f) -- landlord is the best judge of his requirement -- other accommodations may be available which are primarily residential in nature, but suitability for clinic is to be decided by the person who starts the clinic. (2003)1 SCC 462, and (2001)8 SCC 431 followed. [Para 16
(3) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (f) -- medical practitioner can come to his native place and settle there for emotional and professional reasons -- his wife owning clinic at another place cannot be a ground to nonsuit plaintiff who wants to get suit shop after more than 50 years of tenancy. 2006 AIR SCW 45, and AIR 1999 SC 100 followed. [Para 18
(4) Accommodation Control Act, 1961 (M. P.) -- S.12(1)(f) -- microscopic scrutiny of bona fide requirement is not warranted. 2006 AIR SCW 45 and 1999 SC 100 followed. [Para 18
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½¼p½ && vkuqdfYid LFkku oknh ds LokfeRo dk gksuk vko';d && vihy U;k;ky; }kjk fdlh nLrkost ds vk/kkj ij ;g fu"d"kZ vfHkfyf[kr ugha fd bankSj dk fDyfud oknh ds LokfeRo dk gks && fofufnZ"V fu"d"kZ ds vHkko esa] oknh dk nkok bl vk/kkj ij [kkfjt ugha fd;k tk ldrk FkkA ¼1999½6 ,l lh lh 222 vuqlfjrA 2012¼1½ ,e ih ,y ts 109] 2005¼3½ ts ,y ts 97 rFkk 2006¼3½ ,e ih ,p Vh 292 voyafcrA ¼iSjk 14 ,oa 15
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½¼p½ && Hkw-Lokeh viuh vko';drk dk loZJs"B fu.kkZ;d gksrk gS && vU; LFkku miyC/k gks ldrs gSa tks izkFkfedr% vkoklh; izÑfr ds gSa] ijarq fDyfud ds fy, mi;qDrrk ml O;fDr }kjk fofuf'pr dh tkuh gksrh gS tks fDyfud vkjaHk djrk gSA ¼2003½1 ,l lh lh 462 rFkk ¼2001½8 ,l lh lh 431 vuqlfjrA ¼iSjk 16
¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½¼p½ && fpfdRlk O;olk;h vius tUe&LFkku vk ldrk gS vkSj HkkoukRed ,oa o`fÙkd dkj.kksa ls ogk¡ cl ldrk gS && ,d vU; LFkku ij mldh iRuh ds LokfeRo dk fDyfud] oknh dk nkok [kkfjt djus dk vk/kkj ugha gks ldrk tks 50 o"kZ ls vfèkd dh vfHk/k`fr ds i'pkr~ ckn nqdku izkIr djuk pkgrk gSA 2006 , vkb vkj ,l lh MCY;w 45 rFkk , vkb vkj 1999 ,l lh 100 vuqlfjrA ¼iSjk 18
¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½¼p½ && okLrfod vko';drk dh lw{e laoh{kk okaNuh; ugha gSA 2006 , vkb vkj ,l lh MCY;w 45 rFkk , vkb vkj 1999 ,l lh 100 vuqlfjrA¼iSjk 18
1. The present appeal under section 100 CPC has been preferred by the appellant/plaintiff against the judgment dated 24.12.2009 passed by IV Additional District Judge (Fast Track), Shivpuri in Civil Appeal No. 10-A/2009 whereby judgment and decree dated 30.10.2009 passed by I Civil Judge Class-II, Shivpuri in Civil Suit No. 75-A/2008 has been reversed and consequently, the civil suit filed by the present appellant/ plaintiff/ landlord has been dismissed.
2. Precisely stated facts of the case are that plaintiff/landlord filed a suit seeking eviction of the respondents/ defendants/ tenants mainly on the ground of bona fide requirement of his son to start a medical clinic in the said premise therefore, eviction was sought mainly under section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (for short “Act of 1961”). It was pleaded in the plaint that plaintiff is having suit shop situate at Shivpuri which was given on rent to the husband of defendant No.1 and father of defendants No. 2 and 3, namely late Shri Jalaluddin @ Rs.30 per month. After her death, defendants continued tenancy at the rate Rs.50 per month. The rent of the said premise was due since 1.12.2001. However, after receipt of legal notice, defendants raised the rent up till September, 2008. It was further pleaded in the plaint that plaintiff is in bona fide requirement of the suit shop for opening up a clinic for his son Dr. Anurag Mittal for which plaintiff does not have any other vacant shop available in the vicinity of the Municipal Council, Shivpuri therefore, on the basis of bona fide requirement and non-availability of the alternative accommodation, the suit was filed.
3. Defendants filed their written statement and admitted the tenancy. It was pleaded by the defendants that the suit shop was taken on rent in year 1962 by late Shri Jalaluddin who died on 4.4.2008. Defendants No.2-Ikramuddin is the tenant in the suit shop, however it was pleaded that he is the brother of Nasimuddin who is left out to be arrayed as defendant being the tenant in the suit shop, therefore, his exclusion as defendant renders the suit liable for dismissal on the ground of non-joinder of necessary party. The submissions of the plaintiff was rebutted by the defendants and it was submitted that son of the plaintiff Dr. Anurag Mittal is having a clinic at Indore where he is working with his wife Dr. Sapna Mittal therefore they are well established at Indore and therefore, it would be difficult for them to leave Indore and start a clinic at Shivpuri. Similarly, alternative accommodation is available to the plaintiff.
4. Trial Court framed as many as four issues in the matter in which issues No.1 and 2 were in respect of section 12(1)(f) of the Act of 1961 and issue No.3 was in respect of non-joinder of necessary party. The trial Court after considering the evidence led by the parties (total 5 witnesses by the plaintiff and 3 by the defendants) decreed the suit and found the requirement of plaintiff for his son to start a clinic at Shivpuri as bona fide and in absence of any suitable alternative accommodation, plaintiff was found to be entitled for decree of eviction. On the basis of discussion in respect of issue regarding non-joinder of necessary party, the trial Court came to the conclusion that the suit does not suffer from the same because Nasimuddin was not proved to be working in the suit shop and it was not found to be in the suit shop doing business. Even otherwise his interest and estate were duly represented by other defendants. Against the judgment of the trial Court, defendants/ tenants preferred a civil regular appeal under section 96 of CPC before the appellate Court and the appellate Court reversed the judgment and decree passed by the trial Court.
5. According to the learned Judge of the lower appellate Court, plaintiff did not plead specifically about the bona fide requirement that his son is practicing at Indore but still requires the suit premise/ shop for
