Parvat Rao vs Babulal - 1987 Supreme(MP) 528

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellants : R.C. Lahoti
For the Respondents: R.D. Jain

Headnote:(1) Accommodation Control Act, 1961 (M.P.) – S. 12 (1) (a), 12 (3), 13 (1) and 13 (5) – tenant depositing all arrears of rent – S. 13 (1) cannot be read in isolation but in conjunction with S. 12 (3) and 13 (5) – tenant cannot be evicted under S. 12 (1) (a).
       (2) Accommodation Control Act, 1961 (M.P.) – S. 12 (1) (e) – accommodation required for nephew who is not living jointly with the landlord – ground not made out for eviction.
       (3) Accommodation Control Act, 1961 (M.P.) – S. 12 (1) (b) – sub – tenancy – name of sub – tenant not disclosed either in pleading or in evidence – ground not made out for eviction.
        Short Note
       1. Because the suit was dismissed in toto by the trial Court, the landlord – respondent went in appeal when the lower appellate Court decreed the suit for tenant's eviction but only on the ground covered by clause (a) holding the tenant to be defaulter. Shri R.D. Jain has strenuously urged that the lower appellate Court was duty bound to consider the other grounds also and to record a categorical finding in respect thereof as well that a case for tenant's eviction was made out also thereunder. To this, Shri Lahoti, appellants counsel, has replied contending that in the Court below no other ground in support of the appeal having been urged, as is manifested in the judgment itself, it is not open to the appellant to urge the cross – objection on those points. However, I do not see any merit in Shri Lahoti's objection, to the maintainability of the cross – objection. On the other hand, I am of the view that in order to determine its jurisdictional competence a Rent Court, including this Court, is bound to consider at any stage any ground urged touching its jurisdiction.
       Held : I have, therefore, heard counsel on merits of the cross – objection. In so far as the allegation of sub – letting is concerned it is not disputed that an issue was framed in regard thereto and the trial Court did dispose of the issue deciding the same in favour of the appellant. It was held that neither on pleadings nor on evidence the ground for tenant's eviction under clause (b) was duly made out or proved. I do not see any reason to take a different view in the matter even after looking into the pleadings and the evidence myself. This I have done because the Court below failed to do so. Para 6 of the plaint contains merely a vague statement about the alleged sub – lease. Neither sub – lesee's name nor any incident of the alleged sub – lease are mentioned. In evidence the position is not bettered in any manner. Even in evidence the sub – lessee is not named by the landlord and no other details of sub – lease is given I have no hesitation, therefore, to say that issue was rightly decided by the trial Court and the decision does not warrant any interference in my hands.
       2. The other ground urged in the cross – objection, on which vocal submission made more forcefully by Shri R.D. Jain is that the trial Court misdirected itself in disallowing the claim of the plaintiff under clause (e). However, because of what I had held in Lalta Prasad v. Ramcharan (1986 MPRCJ 248) it is difficult for me to accept the contention pressed on evidence and pleadings in this case. Appellant's counsel, Shri Lahoti, has drawn my attention to para 11 of the plaint as also to the evidence of the plaintiff (P.W.1) and Bhaiyalal (P.W.2). In the plaint the case set up was that the suit premises was required bona fide for use of the members of the plaintiff's family and indeed for the accommodation of his nephew (Bhaiyalal) who was then residing in a village and had a mind to shift to Guna town to start business there. In para 4 of his evidence also plaintiff, Babulal, deposed that Bhaiyalal was engaged in fuming in the village and he wanted to shift to the Guna town to start business there But, he also stated that the suit premises was required to accommodate him and his family. In his evidence Bhaiyalal (P.W.2), in para 5, admitted that the plaintiff and his sons were not residing jointly; they were all living separately and that he wanted to shift to Guna town to live separately and not jointly with the plaintiff.
       3. On this evidence and the pleadings just referred it is difficult to dispute that Lalta Prasad (supra) is attracted and the ground for appellants eviction, as per clause (e), must be held to be not available to the landlord cross – objector. In para 9 of the decision in Lalta Prasad (supra) I had an occasion to interpret the expression 'living jointly' which finds place in section 2 (e) of the Act to hold that such person would be deemed to be 'living jointly' as would be "actually living or residing continuously, indeed for all intent and purposes jointly with the landlord, factually exercising the right to live with the landlord jointly". Indeed, it is also not the case of the plaintiff, whether in pleading or in evidence, that Bhaiyalal was dependent on him. For his requirement suit premises could not, therefore, in any view of the matter, be got vacated.
       4. I have, therefore, no reason to take a different view in the matter so as to nullify the findings and conclusion of the trial Court that the plaintiff was not entitled to claim defendant's eviction under clauses (b) and (e) of section 12 (1) of the Act. The cross – objection must, therefore, fail and accordingly it is dismissed.
       5. It is not disputed that there is no arrears of rent legally recoverable from the tenant – appellant. In that view of the matter it is difficult to take a different view from that taken by the trial Court to hold that no case under section 12 (1)(a) was made out. Unfortunately, lower appellate Court invoked section 13 to decree the suit holding that during the pendency of the appeal the tenant had not paid rent as contemplated under section 13 (1) of the Act. This decision cannot stand scrutiny because of what has been held in Lacchobai Rathor (S.A. No. 22 of 1986 dt. 16 – 1 – 1987). Therein it was held that section 13 (1) had not to be read in isolation but in conjunction with sections 12 (3) and 13 (5) and further that it would be competent for any Rent Court to condone default made under section 13 and to extend the time of payment of rent pendente lite subject to the plea that would be available to the landlord under the proviso to section (3) of section 12. In the instant case, however, it is not landlord's plea that earlier at any time the tenant had availed the provisions of section 12 (3) or even 13 (5) of the Act. On the other hand, in the facts and circumstances of die case, I do not see why the default should not be condoned. Indeed, during the pendency of the appeal in this Court itself all arrears of rent, due payable, have been duly deposited by the appellant, 1986 MPRCJ 248 distinguished. S.A. No. 22 of 1986 dt. 16 – 1 – 1987 relied on. Appeal allowed. Cross objections dismissed.