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A.M. Naik, J.
lkrar Mohammad v. lsub Khan
Second Appeal No.610 of 2004 (Gwalior): against the decree and judgment of II Additional District Judge, Shivpuri, passed in
Civil Appeal No.23-A of 2004; Decided on 3.12.2009.
[Para 8
(2) Civil P.c., 1908 -- O.14 R.1 -- evidence let in no issues on which parties actually went to trial -- cannot be made foundation for decision of another and different issue.
Evidence let in no issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. AIR 1956 SC 593 followed. [Para 9
(3) Accommodation Control Act; 1961 (M.P.) -- S.12 (1) (f) -- vacant possession of adjoining shop of same size received by landlord from another tenant during litigation -- bona fide need ceased to exist.
There is no such suggestion that the proposed business of grocery would be started in both the adjoining shops after joining them together or otherwise. It is also clear from the finding remitted by the learned trial Judge vide judgment dated 5.7.2004 that the shop vacated by Mustaq Khan Choice Tailor, is equal in size to that of the suit shop and thus the plaintiff having acquired alternative nond`residential premises of the same size, his alleged bona fide need ceased to exist.
The shop received by the plaintiff after institution of the suit from Mustaq Khan in vacant condition is equal in size to that of the suit shop and the alleged bona fide need of the plaintiff ceased to exist on account of having occupied it. [Paras.13 & 14
(4) Civil P.C., 1908 -- S.100-- finding of fact not reversed by first appellate Court -- not open to attack in second appeal-- it is binding on second appellate Court. AIR 1979 Raj. 87 (FB) relied on. [Para 14
(5) Justice --finding of fact ignoring incontrovertible admitted position which would non-suit the plaintiff -- if upheld would be travesty of justice. 1981 JLJ 716 (SC) followed. [Para 16
(6) Court -- in appeal is entitled to take into consideration cautious cognizance of events and developments subsequent to institution of proceedings. AIR 1975 SC 1409 followed. [Para 17
(7) Evidence -- in absence of plea no evidence is admissible. (1999)4 SCC 403 followed. [Para 18
(8) Accommodation Control Act, 1961 (M.P.) -- S. J 2( J )(f) -- shop received from another tenant during pendency of litigation n not shown to be of inferior in size or situation n no decree of eviction of adjoining shop can be granted. 1991 JLJ 642 relied on. 2001(2) JLJ 196 (SC) followed. [Para 18 (9) Pleading -- Court cannot travel beyond pleading. (2000)2 SCC 223 followed. [Para 18 (10) Accommodation Control Act, 1961 (M.P.) -- S.12( J)(f) -- shop of same size as suit shop received by landlord during pendency of litigation n need ceased. 1984 MPWN 422 and 1997(1) MPWN 142 distinguished. [Paras 19 & 20
¼1½ flfoy izfdz;k lafgrk] 1908 && vk- 6 fu-2 && ekeys dk fofu‘p; && vfHkopuksa ds ckgj ds vk/kkjksa ij vk/kkfjr ugha fd;k tk ldrk && okni= ds la‘kks/ku ds fcuk dksbZ vuqrks"k ftldh ek¡x ugha dh iznku fd;k tk ldrkA , vkb vkj 1953 ,l lh 253 vuqlfjrA ¼iSjk 8½ ¼2½ flfoy izfdz;k lafgrk] 1908 && vk-14 fu-1 && lk{; tks ml fook|d ij ugha fn;k x;k gS] ftl ij i{kdkj okLro esa fopkj.k ds fy, x, && vU; rFkk lqfHkUu fook|d ds fofu‘p; ds fy, vk/kkj ugha cuk;k tk ldrkA lk{;] tks ml fook|d ij ugha fn;k x;k gS ftl ij i{kdkj okLro esa fopkj.k ds fy, x,] dks ml vU; rFkk lqfHkUu fook|d ds fofu‘p; ds fy, vk/kkj ugha cuk;k tkuk pkfg,] tks i{kdkjksa ds efLrdksa es fo|eku ugha Fkk rFkk ftl ij mUgsa lk{; izLrqr djus dk volj ugha feyk Fkk] , vkb vkj 1956 ,l lh 593 vuqlfjrA ¼iSjk 9½ ¼3½ LFkku fu;a=.k vf/kfu;e] 1961¼e-iz-½ && /kkjk 12¼1½¼p½ && eqdnesckth ds nkSjku Hkw&Lokeh }kjk vU; vfHk/kkjh ls mlh vkdkj dh yxh gqbZ nqdku dk fjDr dCtk izkIr fd;k && okLrfod vko‘;drk dh vfLrRo lekIr gks x;kA ,slk dksbZ lq>ko ugah gS fd fdjkus dk izLrkfor dkjckj nksuksa yxh gqbZ nqdkuksa ds lkFk&LkkFk latksftr djus ds i‘pkr~ ;k vU;Fkk nksuksa eas izkjaHk fd;k tk,xkA fo}ku fopkj.k U;k;k/kh’k ds fu.kZ; fnukad 5-7-2004 }kjk foizsf"kr fu"d"kZ ls Hkh ;g Li"V gS fd eq"rkd [kku Pokbl Vsyj }kjk [kkyh dh xbZ nqdku vkdkj esa okn&nqdku ds cjkcj gS rFkk bl izdkj oknh ds mlh vkdkj dk vkuqdfYid fuoklsRrj ifjlj izkIr ysus ds i‘pkr~ mldh vfHkdfFkr okLrfod vko‘;drk lekIr gks x;k gSA okn lafLFkr djus ds i‘pkr~ oknh }kjk eq"rkd [kku us [kkyh voLFkk esa izkIr dh xbZ nqdku vkdkj esa okn&nqdku ds cjkcj gS rFkk bls izkIr djus ds dkj.k oknh dh vfHkdfFkr okLrfod vko‘;drk dk vfLrRo lekIr gks x;k gSA ¼iSjk 13 ,oa 14½ ¼4½ flfoy izfdz;k lafgrk] 1908 && /kkjk 100 && rF; dk fu"d"kZ izFke vihy U;k;ky; }kjk myVk ugha x;k && f}rh; vihy esa vk{ksi dk fodYi ugha && ;g f}rh; vihy U;k;ky; ij ck/;dkjh gSA , vkb vkj 1979 jkt- 87 ¼iw.kZ U;k;ihB½ voyafcrA ¼iSjk 14½ ¼5½ U;k; && v[kaMuh; Lohd`r && vofLFkfr dh mis{kk djrs gq, rF; dk fu"d"kZ ftlls oknh dk oknkolku gks tk, && ;fn ekU; fd;k x;k rks U;k; dk migkl gksxkA 1981 ts ,y ts 716 ¼mPpre U;k-½ ¼iSjk 16½ ¼6½ U;k;ky; && vihy esa && dk;Zokf;gksa ds lafLFkr fd, tkus ds i‘pkr~ dh ?kVukvksa rFkk mn~?kVukvksa dk lardZ laKku fopkj esa ysus dk gdnkj gSA , vkb vkj 1975 ,l lh lh 1409 vuqlfjrA ¼iSjk 17½ ¼7½ lk{; && vfHkopu ds vHkko eas dksbZ lk{; xzkg~; ugha gSA ¼1999½4 ,l lh lh 403 vuqlfjrA ¼iSjk 18½ ¼8½ LFkku fu;a=.k vf/kfu;e] 1961¼e-iz-½ && /kkjk 12¼1½¼p½ && eqdnesckth yafcr jgus ds nkSjku vU; fdjk,nkj ls izkIr nqdku && vkdkj ;k fLFkfr esa fuEurj gksuk nf‘kZr ugha && yxh gqbZ nqdku dh csn[kyh dh fMdzh iznku ugha dh tk ldrhA 1991 ts ,y ts 642 voyafcrA 2001¼2½ ts ,y ts 196 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 18½ ¼9½ vfHkopu && U;k;ky; vfHkopu ls ckgj fopkj ugha dh ldrkA ¼2002½2 ,l lh lh 223 vuqlfjrA ¼iSjk 18½ ¼10½ LFkku fu;a=.k vf/kfu;e] 1961¼e-iz-½ && /kkjk 12¼1½¼p½ && Hkw&Lokeh }kjk eqdnesckth ds yafcr jgus ds nkSjku okn nqdku ds vkdkj dh nqdku izkIr dh xbZ && vko‘;drk lekIr gqbZA 1984 e-iz- ohDyh uksV~l 422 rFkk 1997¼1½ e-iz- ohDyh uksV~l 142 izHksfnrA ¼iSjk 19 ,oa 20½
This appeal involves a crucial question that whether the lower appellate Court contrary to the finding of the trial Court about absence of bona fide with regard to requirement under section l2 (1)( f) of M.P. Accommodation Control Act can grant a decree for eviction on its own notions beyond the pleadings as well as case projected in evidence.
1. This appeal is by the tenant against judgment and decree passed by the lower appellate Court directing thereby eviction of the defendant appellant from the suit shop. It has been admitted and heard on the following substantial question of law:
"Whether the finding of the learned first appellate Court that the suit shop is still required for plaintiff's own business and he has no alternative suitable accommodation for the same in his possession inspite of possession of adjacent shop of same dimensions having been received by him from another tenant, is vitiated in the absence of specific plea to that effect by the respondent and also for want of challenge of the finding recorded by the learned trial Court vide its order dated 5.7.2004."
2. Facts relevant for the purpose of this appeal are that the plaintiff respondent instituted a suit for eviction and arrears of rent with allegations that the defendant is tenant in the shop owned by the plaintiff. He was inducted into tenancy @ 250/- p.m., vide rent note dated 17.1.1996. Plaintiff is a poor labourer performing his work with the aid of hand-cart. He, bona fide, needs the suit shop to start his grocery business. Suit shop is in dilapidated condition. Its walls are quite weak and have developed cracks, which may fall down at any moment. It cannot be repaired without eviction. Defendant is in arrears of rent w.e.f. 17.1.1996. A demand notice was issued on 31.7.2000, which was served upon him. Despite notice, defendant did not pay the rent nor did he vacate the suit shop, hence the suit.
3. Defendant-appellant submitted his written statement refuting thereby the claim of the plaintiff. It has been stated that the plaintiff suppressed the adjacent property belonging to him. It is further averred that the defendant did not execute the alleged rent-note dated 17.1.1996. On the contrary suit shop was obtained on rent w.e.f. 10.4.1992 @ 200/- per month as rent and Rs.50/- per month as electricity charges. Defendant is not in arrears of rent, rather he has been paying the rent timely. The alleged rent note dated 17.1.1996 is a forged document. As regards alleged need, it is averred that the plaintiff has two more shops. Need of the plaintiff has accordingly been denied by the defendant. In special plea, defendant averred that the plaintiff disconnected the electricity of the suit shop on 21.3.2001. On 24.3.2001, new electric meter was installed with the consent of the plaintiff. Money order issued to the plaintiff of rent @ Rs.250/p.m. was not accepted. Defendant has deposited a sum of Rs.2,500/- in the Court as rent w.e.f. April 2001 to January 2002. Prior to April 2001, there was no balance towards rent. On account of disconnection of electricity, rate of rent is liable to be fixed.
4. After recording the evidence, learned trial Judge decreed the suit in favour of the plaintiff on 26.8.2003 on the ground under section 12(1)(f) of the M.P. Accommodation Control Act, 1961. However, other grounds for eviction were declined. Aggrieved by it, Civil Appeal No.23-A/04 was submitted. In this appeal, an application for amendment was submitted that the plaintiff had acquired vacant possession of adjacent shop from his tenant one Mushtaq Khan, Choice Tailor. In view of the subsequent event, the plaintiff is not entitled to seek eviction. This application was opposed on the ground that the said shop was quite small and was insufficient to run the business of grocery. Application for amendment was allowed by the learned lower appellate Court vide order dated 11.5.2004. Consequently, the learned lower appellate Judge remitted
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