1982 Supreme(MP) 379

A. R. Navkar, J.
Sundardas v. Kamladevi.
S. A. No. 74 of 1981 (G); Decided on 14-7-1982.

Headnote:(1) Accommodation Control Act, 1967 (M. P.) -- S. 12 (1) (f) -- tenancy for ten years -- suit filed before that period is premature -- period expiring during of litigation-not of any avail as subsequent event.

        (2) Accommodation Control Act, 1961 (M. P.) -- S. 12 -- eviction Suit under -- position as existing on date of suit to be considered.

        (3) Civil P. C., 1908 -- 100 -- findings as to genuine requirement -- when not binding -- essential evidence not considered -- findings not binding.

        (4) Civil P. C., 1908 -- O.2, R. 2 -- cause of action not available on date of suit -- suit is premature.

        The short facts of the case, out of which this appeal arises, are that at first, the plaintiff; respondent filed a suit the number of which was Civil Suit No. 162 A of 1969, for eviction, in the year 1969. The learned trial Court decreed the suit but on appeal, the same was dismissed in 1972. It is further said that having lost in one round the plaintiff/respondent filed the instant suit, out of which the present appeal arises, for eviction on the grounds under section 12 (1) (a) and (f) of the M. P. Accommodation Control Act (for short hereinafter referred to as the Act), on the allegation that the appellant took the suit shop on a monthly rent of Rs. 140/. It is further al1eged that the rent-note was written on 1-4-1966. but after wards on 5-4-1966 both the parties entered into an agreement, which is Ex. D. 8, which is to the effect that the respondent shall get the suit shop constructed and divided in two parts and the one part shall rem1in with him for ten years and the other part will remain with the plaintiff/respondent. It has also been alleged that the respondent, without adhering to the terms of the contract, served a notice, on the defendant/appel1ant of eviction on 30-4-1973. It is said that the said notice was given before the expiry of the period which was agreed between the parties under the agreement Ex. D. 8. Moreover, instead of fulfilling the obligations which were agreed between them, the present suit was filed on the grounds, mentioned above.

        Held : The tenancy is to be taken for ten years, as agreed between the parties, then from the action taken by the plaintiff in the present suit, will show that her real intention is to increase the rent and not to do the business as alleged in the plaint. The plaintiff has served a notice on the defendant on 30-4-1973 for evicting him and terminating his tenancy from 30-6-1973, that is to say before the period of ten years, which was agreed between the parties under the agreement Ex. D. 8-C. whether the plaintiff could do so, is a point which should have been decided by the Courts below, but from the perusal of the judgments of the Courts below, I do not find the same.

        A similar point came for decision before this Court in the case of Pannalal v. Chandumal and another in Second Appeal No. 282 of 1964, decided on 16-3-1965, in which it was observed that:-

        "The answer of the first question is simple. The defendant No. 1 entered on the premises on a registered lease with a period for ten years ending on 21st April, 1955. The tenancy is certainly one on monthly rent, but at the first instance the lease was for ten years. Even a lease for a fixed period can be forfeited if there is a breach of a covenant with an express provision that on that breach being proved the tenant can be evicted. It is common ground that in the instant case there is no such covenant and that the failure to pay rent regularly is subject to other penalties, nor is it a suit for forfeiture on breach of covenant in the manner provided in section 111 of the Transfer of Property Act. So at this stage the suit cannot include a prayer for ejectment."

        A similar view is expressed by Rajasthan High Court in the case of M/s. Maratha Mandir Limited v. Official Liquidator, Golcha Properties Private Ltd. (1970 All India Rent Control Journal 879), in which it was held that:-

        "Where a lease is for a fixed period of 20 years, the contention that it was a monthly tenancy is quite incorrect and untenable. This in turn leads to the conclusion that it could not be terminated by a notice under section 109 of the Transfer of Property Act and the applicant is not entitled to eject the tenant company under section 12 of the Bombay Rents, Hotel and Lodging Houses Rents Control Act 1947.

        This important aspect of law was not considered by the Courts below and this point really arises from the pleadings of the parties and there was specific issue on this point in the trial Court, as well as in the First Appellate Court and before me also.

        It was submitted by the plaintiff/respondent in his written argument, submitted before the First Appellate Court in this case that the period of ten years has come to an end during pendency of proceedings and, therefore, this Court should consider the subsequent event namely, that the period mentioned in Ex. D 8-C is over. But even if that point is considered in this case, the question of forfeiture of the lease comes in the way of the plaintiff. Further, the claim of the parties is to be decided, keeping in view the position of the parties at the time of filing the suit and when the present suit was filed, the suit was premature.

        I am aware of the fact that in second appeal, when there is concurrent finding of the Courts below that the plaintiff has a genuine requirement, this Court cannot disturb the same. But, in this case the essential evidence is not taken into consideration by the Courts below and if it clearly shows that the requirement of the plaintiff is not genuine, this Court can interfere in the finding, even though it may be concurrent. Excepting the ground under section 12 (1) (f) of the M. P. Accommodation Control Act. there is no other ground on which the Courts below have decreed the suit of the plaintiff. That being the position. I am of the view that the appeal deserves to be allowed, as the plaintiffs suit is premature and as such it cannot be decreed. 1970 All India R. C. J. 879 and. S. A. No. 282 of 1964 decided on 16-3-1965 relied on. Appeal allowed.