Madhya Pradesh High Court
Smt.Kamla And 5 Ors. vs Ramesh Chandra Thru.Karta Huf … on 24 April, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:10884
1 SA-234-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
SECOND APPEAL No. 234 of 2012
SMT.KAMLA AND 5 ORS.
Versus
RAMESH CHANDRA THRU.KARTA HUF LRS.DECD,SHANTI BAI
SMT.NIRMALA AGARWAL AND 3 ORS.
Appearance:
Shri Sunil Jain, learned Senior counsel with Ms. Nandini Sharma, counsel for the
appellant.
Shri Chetan Jain, counsel for the respondent.
Heard on: 01.04.2025
Delivered On: 24.04.2025
JUDGEMENT
With consent of both the parties, the appeal is heard at motion stage at
admission.
2. This Second appeal under Section 100 of Civil Procedure Code (for
brevity, CPC) has been filed by the appellant against the impugned judgment
and decree dated 14.02.2012 passed by the Third Additional District Judge,
Ratlam in Regular Civil Appeal No. 09-A/2011 confirming the Judgment
and decree dated 30.07.2010 passed by First Civil Judge, Class-I, Ratlam in
Civil Suit No.31-A/2006 wherein the suit filed by the plaintiff/respondent for
eviction of the suit premises have been allowed under Section 12(1)(f) of the
M.P. Accommodation Control Act, 1961 (hereinafter referred to as “The Act
of 1961″).
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3. Shron of details brief facts emerged from the record are that the
plaintiff/respondent being Karta of Joint Hindu Family has filed a suit before
the learned trial court for eviction of the suit Shop (hereinafter referred to as
the “Suit Shop”) situated at Ground Floor of House No.62, Mohalla Manak
Chouk Ratlam, District Ratlam. The said house contains a three story
building. The said Suit Shop is east facing. Father of the appellant has taken
the same on rent by written Kirayanama, who was the tenant in the said Suit
Shop since 26.03.1966. On 13.12.1991. The firm Vardichand-Ramnarayan,
which was in the partnership of Ramchandra, Babulal and Mohanlal, was
terminated and the assets were partitioned. As per that partition, the
plaintiff/respondent has received the said house No.62, Manak Chouk Ratlam
in partition being the legal Heirs of Late Ramchandra and the defendant was
also intimated in the year 1991 with regard to the partition of the suit
premises. Thereafter, the defendant has started to pay the rent to one
Rameshchandra/plaintiff till 31.01.1995 even after receiving the notice of
eviction and the respondent/defendant was continued his business in the said
Suit Shop single handedly even after death of his father.
4. The ground for filing the eviction suit is mentioned that the plaintiff
is having a grocery shop and he further wants eviction of the suit shop for
business of younger brother Mehesh after merging the small shops adjacent
to the suit shops. It is also mentioned that at the time of filing of the suit,
both the brothers were indulged in a small shop after parting the same in two
shops which is insufficient for them. It is also mentioned in the plaint that the
Suit shop was rented to the defendant for the purpose of grocery whereas at
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present he is indulged in the business of Agarbatti, Lobhan and Dhoop etc.
and the same is flammable items, therefore, there is a fear of fire also. That
apart, the defendant has not paid the rent since 01.02.1995 to 31.03.1995
even after the notice of eviction. During the Course of arguments, learned
Senior counsel for the appellant submits that an application under Order 41
Rule 27 of CPC i.e. I.A. No.9662/2024 is also pending for taking the map of
suit shops on record. Hence, the suit was filed for eviction, payment of
remaining rent amount and other expenses.
5. In rebuttal, before the learned trial Court, the defendant has however
admitted that the Suit Shop were rented at that time in the name of firm
Vardichand-Ramnarayan through partners Ramchandra, Babulal and
Mohanalal which was mentioned in the revenue records Bhawan No.15/48,
but he has denied about the fact that the plaintiffs are the present owner and
are Karta of Hindu Joint Family. He has also no knowledge about the House
No.62 in which the Suit Shop is established, but admitted that 51 years ago,
the said suit shop was taken on rent from Vardichand-Ramnarayan by his
father. The defendant has objected that the suit is not maintainable being
non-joinder of the parties. The defendant has admitted that earlier, he
received the rent receipt in the name of Vardichand-Ramnarayan, but since
last 10 years, he has not received any receipt and even no information of
terminaition of the Firm as well as partition of the house was given to him.
The defendant has denied the factum that the relationship of landlord and
tenant could not be established in the present suit. It has also been averred
that Ramchand and Mahesh are already doing their business in 22×25 ft shop
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and a godown of 25×15 is also attached with the said shop, therefore, they
already have sufficient space for their business. The defendant has also
denied the business of Dhoop, Agarbatti etc. in the said suit shop, he has
alleged that the plaintiff wanted to re-rent the said suit shop after taking
Rs.50000/- as pagri amount. It is also submitted that the other shops adjacent
to the suit shop has already been evicted by the appellant and have already
sold out to the earlier tenant also. Therefore, the plaintiff is having similar
aim to sold out the present suit shop also and having no bonafide
requirement. So far as the submissions of taking the map on record is
concerned, counsel for the respondent has replied that the said map was
already in possession of the appellant at the time of pendency of suit as well
as first appeal also, but the same, at this stage, in not helpful for
consideration of this second appeal. The defendant has stated that the
plaintiff is already having other spaces in Ratlam and he can use the same
also for business purpose, but by not doing so, the plaintiff has filed the suit
for eviction of the defendant which is not maintainable.
6. Based on the aforesaid pleadings of the parties, the learned trial
Court has framed as many as 09 issues and and vide the impugned judgment
concluded that (i-a), the plaintiff has received the suit shop in partition; (i-b)
the plaintiff is having all right to file the suit being Karta of Hindu Undivided
Family; (ii) the plaintiff is in need of the suit shop and in requirement for
business of Mahesh Kumar and having no other suitable place for such
business; (iii) not found that the defendant is indulged in flammable items in
the suit shop; (iv) plaintiff is entitled to get the remaining rent but not the
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expenses of notice; (v) suit accepted as per Clause 59 of impugned
judgment; (vi) non-joinder of parties are not accepted; (vii) the relationship
of tenant and landlord is established (viii) other shops were found to be sold
by the plaintiff to the respective tenant but the same is not having any effect
to the present suit and; (ix) Ramesh Chandra and Mahesh Kumar were found
to be indulged in the business in one shop by parting the same, but on that
basis the bona fide requirement is not affected.
7. The learned trial Court, after appreciation of the record and evidence
available, has decided the aforesaid issue as framed and passed the final
judgment and decree dated 30.07.2010 in favour of the plaintiff and directed
the defendant to vacate the suit shop.
8. Being aggrieved by the judgment and decree dated 30.07.2010,
defendant has filed an appeal before the learned Addition District Judge,
Ratlam. The learned First appellate court dismissed the appeal of the
defendant on 14.02.2012 by affirming the judgement and decree dated
30.07.2010 passed by learned trial Court. Hence, the present second appeal
has been preferred on behalf of the defendant/appellant before this Court.
9. In support of the appeal, the learned Senior counsel for the
appellant/defendant has submitted that the learned trial Court has passed the
impugned judgment and decree of eviction under Section 12(1)(f) of the
M.P. Accommodation Control Act wrongly without considering the fact that
out of the total six shops, the plaintiff has already sold out three shops to
their respective tenants only at the time of pendency of the suit before the
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6 SA-234-2012
trial Court and later on two shops were also vacated and sold at the time of
pendency of this appeal and the last one which is rented to the present
appellant as suit shop. The learned trial Court as well as the learned first
appellate court have wrongly considered that the plaintiff is in bonafide
requirement of the suit shop. Therefore, the judgment and decree passed
under Section 12(1)(f) of the Act is not in accordance with law and facts.
Since, the plaintiff was having ample space for business for his brother
Mahesh Kumar, there was no need to sale out the earlier shops which are
adjacent to the present suit shop and all are established in the same house
No.62. Therefore, the eviction suit is filed only to sale out the suit shop also,
hence, the provisions of Section 12(1(f) of the Act shall not be applicable in
the present case.
10. It is further submitted that DW-1 Mohsin Ali and DW-2 Vahid
have admitted that the suit shop is having additional space and Mahesh
Kumar is also indulge in the business by parting the shop of the plaintiff,
therefore, it is clear that the shop in possession of the plaintiff is having
ample space. Hence, the learned Courts below have committed grave error of
law and facts in deciding that the suit of the plaintiff solely on the basis of
bona fide requirement in their favour, therefore, the findings are absolutely
adverse. Learned Senior counsel for the appellant has further submitted that
the plaintiff himself has admitted that he wanted to vacate the shop for
expanding his own shop, which is changed version of the appellant. It is
submitted that after the partition between the family members of the plaintiff,
the plaintiff has filed the suit for eviction only to sell the suit shop. If there
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7 SA-234-2012
has been some bona fide requirement, five shops were not required to be sold
out and the same may be used for the bona fide requirement of business for
Mahesh Kumar. In support of this Contention, learned Senior counsel has
placed reliance over the judgment of Hon’ble Apex Court in the case of
[Deena Nath vs. Pooran Lal reported in 2001 (5) SCC 705 prara no.15].
11. Learned Senior counsel for the appellant has further submitted that
for any business of family members, if the plaintiff is having no alternate
places, then their requirement must be bonafide, but in the present case, since
the plaintiff is having the spaces and the same were sold out by the plaintiff
during the course of pendency the suit either before the trial court or before
the appellate court, the bonafide requirement of the plaintiff cannot be treated
as whimsical desire. In support of this contention, learned Senior counsel for
the appellant has placed reliance over para no.9 of the judgment of Hon’ble
Apex Court in the case of Siddalingamma and Another vs. Mamtha Shenoy
reported in (2001) 8 SCC 561. At the fag end of arguments, learned Senior
counsel has concluded that the requirement of the plaintiff is fake and the
learned trial Court as well as learned first appellate Court have committed
grave error of law and facts in passing the judgment and decree under
Section 12(1)(f) of the Act. The findings of learned Courts below are
perverse, improper and unjustified. Hence, prays for setting aside the
impugned judgment and decree.]
12. Per contra, learned counsel for the respondent/plaintiff has
supported the impugned judgments and decree passed by learned Courts
below. Ha has submitted that the learned trial Court as well as learned first
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appellate Court were justified in decreeing the suit in favour of the plaintiff
by considering bonafide requirement of the plaintiff and rightly directed the
appellant to evict the suit shop. Counsel for the plaintiff/respondent submits
that admittedly, father of the appellant was tenant since 29.03.1966 and the
firm Vardichand-Ramnarayan was terminated on 13.12.1991. Since, the firm
which has given the tenancy to the appellant is terminated, admittedly, the
appellant has paid the rent to the plaintiff. Counsel for the
respondent/plaintiff has fairly admitted that out of total six shops situated in
House No.62, three shops were sold by the plaintiff during the pendency of
the suit before the trial court and two were sold out during pendency of this
appeal.
13. Counsel for the plaintiff has submitted that since the plaintiff was
under requirement of funds for his business, therefore, the small shops were
sold out by the plaintiff. It is further submitted by counsel for the plaintiff
that since, the learned trial Court as well as the learned first appellate Court
has passed the judgment and decree in favour of the appellant under Section
12 (1)(f) of the act, it cannot be said that the plaintiff is having any alternate
place for business of family members. In support of his contention, counsel
for the respondent ha placed reliance over the judgment of this Court passed
in the case of Sujata Sarkar vs. Anil Kumar Duttani [2009 (2) MPLJ 156 ]
wherein the Court has held that the absence of pleadings in the plaint in
respect of availability of alternate suitable accommodation is not fatal to the
plaintiff’s case when there is adequate and sufficient oral evidence on record
to the effect that the plaintiff does not possess any other suitable
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accommodation in the city. Therefore, the learned Courts below have rightly
decided the plaint/suit of the plaintiff and passed the judgment and decree in
accordance with law after proper appreciation of the record. Therefore, prays
for dismissal of the second appeal.
12. I have heard the counsel for the parties and perused the record.
13. In view of the aforesaid submissions and pleadings of both parties,
this Court has admitted this second appeal on following substantial question
of law :-
“Whether the judgment and decree granted by lower
appellate Court directing eviction under Section 12(1)(f)
of the M.P. Accommodation Control Act is sustainable
in view of the pleadings and evidence brought on record
or not?
14. Prior to examine the case, the application under Order 41 Rule 27 of CPC
filed by the appellant is required to be pondered. In this context, the contents of
the application under Order 41 Rule 27 of CPC, are to be considered within
purview of the concerning provision, therefore, it appears essential to reproduce
the respective provision of Order 41 Rule 27 of CPC, as hereinbelow:-
“R.27. Production of additional evidence in Appellate Court:-
(1) the parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the appellate court. But if –
(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, orSignature Not Verified
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[(aa) the party seeking to produce additional evidence
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or]
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause.
the Appellate Court may allow such evidence or
document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its admission.”
15. At this juncture, the law laid down by the Hon’ble Supreme Court in
Surjit Singh & Ors. vs. Gurvant Kaur and Ors. 2014 LawSuit (SC) 710, while
considering the jurisdiction under Sub-Rule (1)(b) of Order 41 Rule 27 of CPC, is
worth to refer here-
“[21]…..However exercise of the said power is circumscribed by the
limitations specified in the language of the rule. It is the duty of the
Court to come to a definite conclusion that it is really necessary to
accept the documents as additional evidence to enable it to pronounce
the judgment..”
[22]….We are conscious, the spectrum that can be covered under Order
XLI Rule 27 (1)(b) may be in a broader one but in certain cases
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judicial propriety would be an impediment and the present case is one
where the judicial propriety comes on the way…”
16. In this respect, the law laid down by the this Court rendered in Ashok
& Ors. Vs. Bharat Housing Co-operative Society & Ors. 2017 Law Suit (M.P.)
1332, is also relevant to quote here:-
“13. This Court in the matter of Reg. Vidhichand Dharamshala Trust,
Gwalior vs. Shyam Singh and Ors. 2010 3 MPLJ 428 considering the
scope of Order 41 rule 27 of CPC has held that the defendant was well
aware of the document since long and no reason were assigned for not
producing the certified copy at earlier stage and the proposed
document was withing the knowledge of the defendant and no
explanation was given as to why certify copy of the same was not
procured at trial stage and it was not a choice of a litigant to obtain
certified copy at any stage despite having its knowledge from the
beginning and to seek leave for being taken on record at appellate
stage, hence, there was no propriety in admitting such document as
additional evidence.”.
17. In view of that provision, matter has been considered. The said
document/map related to prove about the establishment of the shops in the said
house and the same is in possession of the appellant from initial stage, the
explanation showing for belated filing, is not found satisfactory. That apart, this
document is also not helpful in pronouncement of the judgment. This document
has not only been produced at the fag end of trial but at the second appellate Court
stage while this Court sitting for deciding the appeal. Hence, the said map is not
required to be taken on record at this stage even in the case of eviction, there is no
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12 SA-234-2012
important role of the map in deciding this second appeal and the court has to deal
with the question of bona fide requirement of the plaintiff only. Therefore, the
application I.A. No.9662 is hereby dismissed.
18. It is an admitted fact that out of six shops, five have already been
sold out by the plaintiff/respondent. However, it is also admitted that the said
shops were sold by the plaintiff for expanding their business. The learned
senior counsel for the appellant has stressed on the point that absence of
pleadings with regard to non-availability of alternate suitable
accommodation, in the suit, is fatal to the plaintiff’s case. But, since the
plaintiff have sold their shops during pendency of the suit, it cannot be
assumed that the plaintiffs have bonafide requirement of the suit shops.
19. In the case of Ram Narain Arora vs. Asha Rani and Others 1999
(1) SCC 141, the Hon’ble Apex Court, while dealing with the similar issue
has specifically held that even if in the absence of pleadings, the Court can
examine the evidence on record to determine the issue as to whether the
landlord is in possession of some alternate accommodation or not and mere
absence of pleadings would not be fatal and Courts cannot take up a
pendantic or dogmatic approach in the matter. Para nos.10 and 11 of the are
important to quote here as under:-
10. In making a claim that the suit premises is
required bona fide for his own occupation as a residence
for himself and other members of his family dependent
on him and that he has no other reasonably suitableSignature Not Verified
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accommodation is a requirement of law before the Court
can state whether the landlord requires the premises
bona fide for his use and occupation. In doing so, the
Court must also find out whether the landlord or such
other person for whose benefit the premises is required
has no other reasonably suitable residential
accommodation. It cannot be said that the requirement
of the landlord is not intermixed with the question of
finding out whether he has any other reasonably
suitable accommodation. If he has other reasonably
suitable accommodation, then necessarily it would mean
that he does not require the suit premises and his
requirement may not be bona fide. In such
circumstances further inquiry would be whether that
premises is more suitable than the suit premises.
Therefore, the questions raised before the Court would
not necessarily depend upon only the pleadings. It could
be a good defence that the landlord has other reasonably
suitable residential accommodation and thereby defend
the claim of the landlord.
11 . There cannot be a pedantic or a dogmatic
approach in the matter of analysis of pleadings or of the
evidence adduced thereto. It is no doubt true that if the
pleadings are clearly set out, it would be easy for the
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Court to decide the matters. But if the pleadings are
lacking or vague and if both parties have understood
what was the case pleaded and put forth with reference
to requirement of law and placed such material before
the court, neither party is prejudiced. If we analyses
from this angle, we do not think that the High Court
was not justified in interfering with the order made by
the Rent Controller.”
20. Following the aforesaid law laid down by Hon’ble the Apex Court
in the case of Sujata Sarkar (supra), this Court has held that mere absence of
pleadings in the suit with regard to non-availability of suitable alternate
accommodation in the city is not fatal to the plaintiff and the suit of the
landlord cannot be thrown out.
21. Again, this Court has similarly followed the aforesaid law in the
case of Dheeraj Rohra vs. Shyam Bihar pandey 2023 (2) MPLJ 104 . The
relevant excerpt is reproduced here as under:-
“15. Undisputedly, the plaintiff has more shops in the
same building and it is his case that after demolishing
the shop, he wants to reconstruct a shop for the non-
residential purposes for his sons and nephew. The
plaintiff cannot be compelled to squeeze himself in a
small premises specifically when the said small
premises is not sufficient for the appellant himself toSignature Not Verified
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run his business in a decent manner. Thus, even if one
shop had fallen vacant during the pendency of the suit,
still the appellant has failed to prove that the said
alternative accommodation is suitable for meeting out
the requirement of the sons of the appellant for non-
residential purposes.”
22. The provision under Section 12(1)(f) of the Act is very clear that
the plaintiff does not possess any other suitable accommodation in the city.
Rameshchandra (PW-1) in his cross-examination has admitted that 4-5 years
ago, he has made a partition in the shop of Vardichand-Ramnarayan and he
has given the portion of north side to Mahesh and in South side, he himself is
indulge in the business. It has also been admitted by the witness that the
width of the suit shop in only 6-7 feets and if one is entered deeply, the same
is remained only 4 feet at the end of shop, meaning thereby, the initial part of
the shop is wide and last portion of the shop is narrow. The witness has also
denied that there is any godown behind the said suit shop. It is also denied by
PW-1 that they have any other shop in the city. PW-1 has admitted that the
shops which were sold to the tenants, were sold due to needs of funds to
initiate the business for Mahesh Kuamar. He has also admitted in his
statements after the vacant possession of the shop, they will remove partition
and shall carry their business in a routine manner.
23. Further, Mahesh (PW-2) has also admitted and supported the
statements of the witness Rameshchandra (PW-1). Kailash (PW-3) has stated
in his statements that since the shop of the plaintiff is very small, they have
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used to keep the goods of the shop in the house. With regard to the question
of bona fide requirement, the statements of Kailash (PW-3) are very
significant and this witness has specifically stated that the suit shop is very
small and the plaintiff is in requirement.
24. Keshrimal (DW-1), has fairly admitted in his cross-examination
that in the shop of Vardichand-Ramnarayan, partition was made and the part
of the shop was provided to Mahesh for business purpose. Apart that Saleem
(DW-2) has stated that he has no knowledge about the fact that the plaintiff
has sold the shops adjacent to the suit shop in need of amount to initiate the
business for Mahesh, however, he has admitted that the shop of Vardichand-
Ramnarayan was earlier occupied by Rameshchandra and by partition, one
part was provided to Mahesh for his business. This witness has also admitted
that he has no knowledge about any other shop or house of the plaintiff in
the city.
25. In view of the aforesaid statements of the witnesses and admission
of Keshrimal (DW-1), the learned trial Court has found that the shops were
sold to the tenants only by the plaintiff due to bona fide requirement of
amount to initiate the business of his brother Mahesh Kumar. Thereafter, sale
of the said shops, partition was made and business was started by both of
them in the small shop.
26. So far as the payment of rent of the shop from 01.02.1995 to
31.03.1995 is concerned, the plaintiff has denied that he has never received
the rent for two months, but the appellant has stated that he has paid the said
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rent. Keshrimal (DW-1) has admitted in statements that he has not paid the
amount of rent of these two months to the plaintiff but, sent the same amount
to him through money order, but in this regard no receipt of money order has
been placed on record by Keshrimal (DW-1). Therefore, it cannot be said
that he has duly paid the remaining rent. However, later on, he has stated that
the rent amount of those months were deposited in the Court. Hence, the
learned trial Court as well as the learned appellate Court were justified in
deciding this question also.
27. On this aspect, the effect of subsequent events on bonfide need is
required to be considered by the Courts of law at the time of deciding the
eviction suits filed by the landlord. However, if every subsequent
development during the post-petition period is to be taken into account for
judging the bona fides of the requirements pleaded by the landlord, there
would perhaps be no end so long as the unfortunate situation in our litigative
process system subsists. After facing a long financial crisis, if the landlord
moved for eviction on the ground that he needed the premises for joining
new assignment or starting new work for the family since neither the
landlord nor his family members are expected to sit idle without doing any
work,lest, joining new assignment or starting any new work would be at the
peril of forfeiting his requirement to occupy the premises for business or
startup. If a young entrepreneur decides to launch a new enterprises and on
that ground, he or his family members seeks eviction of the tenant from the
premises, the said proposed enterprise would not get faded out by subsequent
developments. Therefore, the sale of three shops to the tenants themselves,
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cannot said to be malafide and shall only be a bona fide requirement for
starting of the business of family member.
28. Apart that, choice of the landlord is an everlasting right during his
lifetime. The choice of the landlord cannot be discarded by law. If the need
of the landlord for additional accommodation is proved and the predilection
shown by him is not perverse or abnormal, his choice is to be respected. The
Court cannot replace its own opinion for that of the landlord in regard to his
requirements. What the Court has to see is that the landlord is not actuated by
an ulterior motive. The Court is not the rationing authority for house
accommodation under the Act,
29. On this aspect, para no.13 of the landmark judgment of Hon’ble
Apex Court rendered in the case of Shiv Sarup Gupta vs. Dr. Mahesh Chand
Gupta [(1999) 6 SCC 2022], is condign to quote here as under:-
13. …..Once the court is satisfied of the bonafides of the
need of the landlord for premises or additional premises
by applying objective standards then in the matter of
choosing out of more than one accommodation
available to the landlord his subjective choice shall be
respected by the court. The court would permit the
landlord to satisfy the proven need by choosing the
accommodation which the landlord feels would be most
suited .for the purpose; the court would not in such a
case thrust its own wisdom upon the choice Of the
landlord by holding that not one. but the other
accommodation must be accepted by the landlord to
satisfy his such need. In short, the concept of bonafide
need or genuine requirement needs a practical approach
instructed by realities of life. An approach either too
liberal or two conservative or pedantic must be guarded
against.”
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 24-04-2025
18:08:54
NEUTRAL CITATION NO. 2025:MPHC-IND:10884
19 SA-234-2012
30. Even the last argument, raised on behalf of the appellant to the
effect that the premises in question is very small premises and it is not likely
with the respondent/landlord and his brother although can start his business
in that premises, also appears to be worthless. It is also contended by learned
Senior counsel that since the respondent and his brother have separated their
part, this suit filed by the brother should not be entertained for bonafide
requirement of Mahesh Kumar. On this aspect, it is replied by counsel for the
respondent that this portion of the property has been given to Mahesh Kumar
in partition.
31. So far as the contention regarding maintainability of the suit is
concerned, at the stage of second appeal, it cannot be entertained. Such
arguments was required to be raised before the trial Court itself. Certainly, if
the suit is filed by some as to today in such case, the same would be filed
only by the person for whom the bonafide requirement is exist. Since,
respondent was owner of the suit shop at the time of filing the suit, he can
not be non-suited only on the basis that after partition the suit shop was given
to his brother Mahesh. Moreover, it is pertinent to mention here that this suit
was filed by Ramesh Chandra for the bonafide requirement of Mahesh
himself. Hence, point of maintainability of the suit at this stage is not
sustainable in the eyes of law.
32. In view of the aforesaid elaborate discussions as well as looking to
the law settled on the point, the plaintiff has duly proved the bona fide
requirement of business before the learned trial Court. Therefore, the learned
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 24-04-2025
18:08:54
NEUTRAL CITATION NO. 2025:MPHC-IND:10884
20 SA-234-2012
trial Court as well as the learned appellate Court were justified in granting
the decree in favour of the plaintiff under Section 12(1)(f) of the Act of
1961. Accordingly, the findings of learned Courts below do not warrant any
interference by this Court and the same deserve to be upheld. The substantial
question framed by this Court is answered in negative against of the
appellant. Resultantly, the appeal fails and is accordingly dismissed and the
findings of both the courts below are hereby affirmed.
33. Pending application, if any, stands closed.
(PREM NARAYAN SINGH)
JUDGE
AMIT
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 24-04-2025
18:08:54
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