1987 Supreme(MP) 604

IN THE HIGH COURT OF MADHYA PRADESH
V.D. Gyani, J.
Harbinder Singh - Appellant
Vs.
Shreyans Raj - Respondent
S.A. No. 183 of 1987 (I)
Decided On : 07-10-1987

Headnote:(1) Civil Procedure Code, 1908 – S.100 – bona fide requirement – is a question of fact – re – appraisal of evidence – not permissible.

       (2) Civil Procedure Code, 1908 – O.8, R. 1, 2 and 3 – no specific denial to the plaint averments – that fact cannot be challenged.

       (3) Civil Procedure Code, 1908 – O.6, R.17 – application for amendment in appeal filed after 16 months – not bona fide.

       (4) Accommodation Control Act, 1961 (M.P.) – S.12(1)(f) – choice of plaintiff – cannot be questioned in second appeal.

        Short Note

       Learned counsel appearing for the appellant, has urged the following points:

       (i) Plaintiff has filed to prove that he is owner of the shop.

       (ii) Plaintiff being a partner in another firm, has failed to clarify what capacity he is carrying in his business, the suit shop.

       (iii) Plaintiff/respondent has not proved as to how the suit – shop is more suitable than the other road facing shop, 'PRAKASH SHRINGAR SADAN' is being run by another tenant of the plaintiff/respondent which according to the appellants, is available to the plaintiff.

       (iv) Appellants application under O.41, R.27 CPC was wrongly rejected by the lower appellate Court.

       2. Held: The first two points urged by the learned counsel relate to the plaintiff's bona fide requirement. Bona fide requirement is essentially a question of fact and there being concurrent findings recorded by the two Courts below, the evidence on these points cannot be re – appreciated at this stage of second appeal, under S.100, CPC. So far as the question of ownership is concerned, the plaintiff/respondent in para 1 of the plaint, has specifically pleaded that he is owner of the suit – shop. Learned counsel for the appellants, was at pains to point out from written statement, the denial of this fact by the defendant/appellant. Although, para 1 of the written – statement (which is reply to para 1, 2 and 3 of the plaint) was referred and read over by the learned counsel, but there is no specific denial of the fact averred by the plaintiff/respondent, Order 8, R. 3, 4, 5 are very clear. If fact is not specifically denied, as in this case a, fact of ownership cannot be called in question at this stage of second appeal.

       3. It was contended on behalf of appellants that plaintiff/respondent's choice of the suit – shop is abnormal and unreasonable simply because it is not road facing. Learned counsel referred to para 10 of the plaintiff's statement as basis for this argument. The plaintiff/respondent as in this paragraph has stated that he has filed a suit for eviction against the tenant in the contiguous shop and he needs the same. He has filed the suit for eviction in respect of both these shops. These shops are not road facing. PRAKASH SHRINGAR SADAN, shop is the same, in continuity, is road facing. It is for the plaintiff to make his choice merely because he does choose the road facing shop, which cannot be said that his choice of suitability of shop is either unreasonable or abnormal. In any case, it is not a point, which can be agitated at this stage of second appeal. The two Courts below have found it to be reasonable and rightly so.

       4. So far as availability of Shop PRAKASH SHRINGAR SADAN to plaintiff/respondent is concerned, the two Courts below have come to the conclusion that the shop is neither vacant nor available to the plaintiff. Learned counsel referred to rent receipts in respect of this shop and its registration of shop establishment Act and submitted that if considered, they would affect plaintiff's bona fide Trial Court and the lower appellate Court have considered these document, it is not open to this Court at this stage to re – appraise evidence, for reading a different conclusion. A series of Supreme Court decisions prohibit such re – appraisal of evidence in second appeal. To refer to the latest decision as noted in 1986 JLJ 763 (Arya Samaj Sagar & Ors. v. Pinjamal) is a case in point.

       5. It was insisted that the plaintiff should have produced the ownership deed to make his bona fide clear. In this connection, suffice is to say that it is not a partnership firm, which is claimed for eviction. The plaintiff came in his individual capacity and his bona fide requirement found to have been established by the two Courts below.

       6. Coming to the last point urged by the learned counsel about the application under O.41, R.27, CPC, the lower appellate Court has not omitted to consider his application, but has rejected the same. Although, it was argued that the application preferred before the lower appellate Court was under O.41, R.27, CPC as has been stated in the appeal memo as well. Going through the record of the lower appellate Court, it was an application for amendment under O.6, R.17, CPC, which related certain construction going on in PRAKASH SHRINGAR SADAN. This application was moved on 25 – 8 – 87, and while the appeal was filed on 30 – 4 – 86, the application for amendment was filed almost after 16 months of filing of the appeal. Lower appellate Court dismissed the application holding it to be malafide and rightly so, in the circumstances of the case. 1986 JLJ 763 (SC) followed. Appeal dismissed.