1979 Supreme(MP) 71

H. G. Mishra, J.
Shyam Sunder Trivedi v. Krishnachand.
S. A. No. 389 of 1973 (G); Decided on 1-5-1919

Headnote:(1) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (a) -- decree for eviction under -- when may be sought -- rent neither fixed nor settled -- consequences of.

        (2) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (c) -- inconsistent user -- what is -- accommodation let out for residence -- opening of school therein -- whether amount inconsistent user.

        (3) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (e) -- need in presenti -- what is -- prospective need -- when may be regarded as need in presenti.

        In this appeal Shri J. P. Shrivastava, learned counsel for the defendant-appellant, contended that in absence of any rent having been fixed by the Rent Controlling Authority and/or by agreement between the parties decree for eviction under section 12 (1) (a) of the 1961 Act, cannot be sustained.

        Mr. D K. Katare, learned counsel for the plaintiffd`respondent submitted that none of the aforesaid contentions has any force. He also reagitated the grounds for ejectment negatived by the learned District Judge and contended that (a) essential requisites to get a decree on grounds under section 12 (1) (c) and 12 (1) (e) of 1961 Act have been proved: and that (b) the alleged need is a need in presenti; (e) the grounds under section 12 (1) (c) stand proved; (d) passed at the rate of Rs. 25 per month instead of Rs. 7.50 per month.

        Held : Admittedly, neither the allotting authority fixed any rent payable by the tenant to the landlord, nor any of the parties approached the rent Controlling Authority hereto before for fixation of faird`rent and or standard rent. There is no agreement between the parties either in respect of amount of rent payable in respect of the suit premises. No provisions of the 1950 Act or M. P. Accommodation Control Act, 1955 (hereinafter referred to as the 1955 Act) or the 1961 Act, is shown under which liability to pay rent at any particular rate may be worked without resort the faird`rent or standard rent fixation proceedings. There is no provision in either the 1950. Act, or 1955 Act or in 1961 Act by vigor of which a statutory liability of paying rent at any particular amount may be worked out in absence of agreement inter parties or in absence of determination either at the instance of the tenant or of the landlord for rent payable in respect of the suit premises.

        In this respect Mr. Kothari placed reliance on S. 7 of the 1950 Act, S. 7 of the 1955 Act and S. 7 read with S. 2 (h), 9 and 10 of the 1961 Act and the ratio of 1960 MPLJ-SN 72 (D. L. Khare v. Punamchand)

        The case of D. L. Khare (Supra) was a case under clause (7) of the C. P. and Berar Letting of Houses and Runt Control Orders 1949 for determination of Standard Rent. Accordingly, the ratio of D. L. Khares case (supra) cannot be any relevance to the present situation. As such, there is no fixed rent which could be demanded. Accordingly, the plaintiff landlord cannot claim eviction on the ground under S. 12 (1) (a) of the 1961 Act; and the defendant appellant cannot be regarded as a defaulter for the purposes thereof.

        In respect of ground under S 12 (1) (c), Mr. Kothari invited attention of the Court to the documents on record and specially to portion A to A of Ex. P/6 and contended that these documents contain admission of the defendant on the point of opening of School but they have been ignored by the learned District Judge. This evidence has material bearing on the question of putting the suit premises to inconsistent user, which were admittedly allotted for residential purposes. As such, the impugned judgment vide para 9 discloses legal infirmity of ignoring material evidence on record and the same cannot be allowed to stand.

        The learned District Judge has failed to note that the reasonings employed by the learned Judge of the trial Court proceed on essentially irrelevant considerations and conjectures with regard to the concept of need in presenti. If critically examined, the alleged need cannot be held to be a need in future. It is not the requirement of law that in order to demonstrate bona fides marriage of Paraschand ought to have been performed prior to the institution of the suit Sagai ceremony is the basic step and marks beginning the transaction of marriage.

        It is clear that Sagai ceremony having already been performed, the alleged need is one reasonably likely to arise in near future although prospective, it is certain. As such, it ought to have been held to be in presenti and the question of availability of the ground for ejectment under S. 12 (1) (e) of the 1961 Act ought to have been adjudged in this perspective. The entire approach of the learned Judge of the trial Court was vitiated due to application, of irrelevant tests. 1960 MPLJ-SN 72. distinguished. 1970 RCJ (Ker.) 479, 1975 RCJ (P & H) 689, 1978 (2) RCJ 70 (M. P). S.A. No. 147 of 1969 decided on 20-9-1969 & S. A. No. 171 of 1968 (G) decided on 18-8-1972 relied on. Appeal allowed. Case remanded.