SA/588/2003 of SHIV SHANKAR SONI AND OTHERS Vs JAYANTI BHAI on 24 December 2004

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1N THE[HIGH][ COURT][ OF][ JUDICATURE][ AT]T[BILASPR]U§3$OF2003SECOND[APPEAL][ NO.]

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ALLBON0F!SHRIMADA‘GOPALSONT,OFHALWAITRESIDENTBADARLINE,‘BADARAPPELLANTS/1‘WARD‘, RIAIPUR.PLAINTIFFsIVERSUS

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SADARBAZARRESPONDENTLLINE,DEFENDANT

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Civil Suit[valged][ at][ Rsz4/OCf/-][ and][ Court][ Fee][ affixed]Rs. 64 1/(‘3/- and[Court][ F66][ affixed]First Appeal [valued][ at][ Rs§‘((5(']Rs.‘65‘[VThis Appealis valuedat R;540(3 /- and Court Feeaffixed[RsJA]J /—

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APPEAL[IUNDER][ SECTION][ 100][ OF][ CODE][ OF'CIVI]

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||| HIGH COURT OF JUDICATURE ATBILASPUR (C.G) aoo ee |,:.|a7||5:Be|. SECOND APPEAL No.588 of 2003||ro,|Shiv Shankar Soni and others|||_7|7|Jayanti Bhai|oe:os;PoBe,JUDGMENT:|||:i" ;: 7 ayp|Bost for zl 12.2004_ -:(ae-oe|_ Sunil Kumar Sinha a SoaBnaJudgevip 7:VA we-eeBS

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HIGH COURT OF JUDICATURE AT BILASPUR (C.G)‘3SECOND APPEAL No.588 of 2003/

Shiv Shankar Soni and others

Vs.

Jayanti Bhai

Shri B.P. Shanna, Counsel for the appeHants

JUDGMENT(z[1’][ .][ 12.2004)]

Sunil Kumar Sinha, J

Heard on the question of admission.

(2) This appeal has been filed u/s100 of the Code of CivilPmcedum against the Judgment and Decree dated 06.09.2003passed[in][ Civil][ Appeal][ No,29-A/][ 2003 by][ the][ Fourth][ Additional]Distn'et Judge,Raipur (CG)arising out of the judgment anddecree dated 22.4.2003 passed m Civil Suit No.67—A/ 2001 byXlth Civil Judge,Class-II, Raipur.The trial Court decreed thesuit’of the landlords for eviction &om a residential premises(onesmall room)situated in the hrst door of the 4storayedbuilding belonging to them.The lower appellate Comt allowedtheappeal of thetenant and hasset asidethe judgment8r,decreepassedbythetrialCourt.Theappellants/plaintih‘s v a tenant on a monthly tenancy.The plaintin‘s filed the suit for‘3eviction nom the aforesaid rented premises on the ground oftheir bona nde requirement as the according to plaintiEs, thereare 17 members in their family and it has become dimcult forthem to accommodate all of them in the house in question and'they have no reasonably suitable residential accommodation oftheir own in their occupation in the city or township of Rajpur.u;In fact, the plaintin's took grounds specihed in Section 12(1)(e)of the M.P. Accommodation Control Act 1961.The plaintin‘salso took a p‘lea that the rented accommodation is an old oneandtheyaretodemolishthesameandthereafteranewconstruction is to be done which cannot be done Without'theaccommodation being vacatedIn this mannerthe plaintin‘salso took the ground specmed 1n sectlon12(1)(g)[of][ the][ Act]They also took a ground u/s12(1)(a) regardmg arrears of rentin sum of Rs.260/agamst the tenant.

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(1-)The defendant] tenant med his written statement denyingthe contentlons of the plamttd'sIt was pleaded by him that thelé[number][ of][ family][ members][ has][ not][ been]correctly stated by thegplamtld‘s.The complete house of the plaintid‘sis a very biggEhouseandallthememberscanbeaccommodatedinthathouse.Another rented accommodation of the plaintin‘ has alsoibeenvacatedthereforesomemoreaddmonalroomshaverI1becomeavailabletothemTheaccommodationis mgoodEcondition and there is no necess1ty of reconstruction and thetyplea taken about the demolition and reconstruction is falseInlacttheplaintih‘sanyhow wanttoev10t him nomthesuitIlk1xri ‘x i i \

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premises,themfore,thesuit has been $ed on thefalse and‘3baselessgrounds.Hespeciallypleadedthattheaccommodation is not required bona ddeby the plaintids.Healso denied about the anears of rent as has been pleaded bythe plaintiifs.

(5) Thelearnedtrial Judge namedvariousissuesinthiscase[and]after recording evidence of theparties[decreed]theVsuit of the plainwon all the grounds taken by them.

(6).Agaipst theaforesaid judgment anddecree passed bythe trial Court, the defendant (tenant) hled an appeal before thelower appellate Court.‘[The][ lower][ appellate][ Court][ allowed][ the]appeal and reversed the judgnent and decree passed by thetrial Court.

(7) Learned counsel for the‘appellant argues that the lowerappellate Court committed an ermr of law in holding that theplaintjh's[were][ not][ in][ bona][ hde][ requirement][ of][ the][ suit]premisesand the judgment of the Court below is perverse on this point.Healso argues that in fact,the accommodation has becomeunsafe and unnt for human habitation and is required bona-hde by the landlords for reconstruction and the same cannotbe carried out without the accommodation being vacated.Healsoarguesthatit has beenestablished on recordthat thelandlordsarenothavinganyotherreasonablysuitable(residential[accommodation]of their own in their occupation inthe township of Raipur,therefore,the trial Court had rightlypassed[a][ decree][ in][ their][ favour][ and][ the][ reversing][ hndings][ of]thelower appellateCourt areperverse.Further he submits ‘

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that the reversing mdmg in relation to arrears of rent is also3‘1perverse.

(8) I have heani learned counsel for the appellant and havealsoperusedtherecordsof thetwocourtsbelowandthejudgmentanddecreepassedbythem.Firstofall,itisimportant to mention this fact here as to what is the nature,.[situation][ and][ size][ of][ accommodation][ for][ which][ the]present[suit]

hasbeennled.Itisundisputedthattherentedaccommodation is a small room and the size of the room is 12ft. x 7.3ft.This is clear nom the additional map tiled by theplaintin‘s[which shows][ the][ situation][ of][ the][ accommodation][ and]the rooms available on various floors of the entire premises ofthe plainn'n's.It is also admitted thatthe room is on the hrstdoor of the house.The map‘ also shows that the houseis amum-storied building in which there are 4 floors including theground[door][ and][ there][ are][ various][ rooms][ on][ each][ floor:]Nowthequestionisasto whether about16-17 membersof thefamily can be accommodated in the said house excepting one'Proom for the tenant, or not The plaintin‘s have examined onlyone witness in support of their case.Heis Bhole Shankar(Plaintin‘[no.3][ as][ P.W.1).][ He][ has][ only][ stated][ that][ there][ are][ 17]members in his family and all are residing in the same house,'they are facing some dihiculty in residing in the said house.Therefore the rented roomis also required by them.He has-admitted in para 5 of his evidence that their family was alsoresidingon rent in the said premises and later on the samewaspurchasedbythem.Healsostatedthatthere were4

tenantsin the house,out of them two have already[vacated]‘atheir respective accommodations[and][ the]possession[has][ been]received by them.Except the above, nothing[has][ been][ deposed]'I‘heby him. hrst appellate Court has considered his evidencevideparas10 &11of the Judgment and[has]reversedthefinding of thetn'al Court holding[that][ in]fact,the bona ndeneed of the plaintiffs is not proved[by][ them.]It has also referredto the evidence of the[defendant][ who][ was][ examined][ as][ D.W.1]. and has deposed that[the][ house][ of][ the]plaintiEs[is][ having][ 4][ ~][ 6]rooms on'each door.The lower appellate[Court][ has][ determined]that in fact, the house[of’the]plaintids[is][ having][ 14-15][ rooms]alongwith the attachedfacilities andunspecified requirementshown by them does[not][ seemsto][ be][ bona][ nde.]In fact,the,plaintiEs[have][ not][ taken][ any]specificpleading[in]relationtotheirrequirementwhichcanbesaidtoheabonanderequirement within the meaning[of][ section][ 12(1)(e)][ of][ the][ Act.](9)[The]legislaturehasusedtwoimportant wordsinsub-section (1)(e) of Section [12‘of][ the][ Act,][ these][ are][ "][ required”][ and]“bonaiide”.The word[“require”][ carries][ a]greater[meaning][ than]the word[“desire”.]The distinction lies in degree [of][ need.]Theword“require”ashas been used bythelegislature'intheaforesaid provision carries[an][ element][ of][ “must”][ whereas][ the]word[“desire”]does not carry[any][ such][ meaning][ or][ weightage.]Theuserof thisterm andplacementthereof inoneof theimportant grounds for eviction goes[toshow][ the][ intention][ of][ the]legislature thatthe need[of][ the]premises[should][ be][ a]real needand should not be a desire[simplicitor][ that][ the landlord][ wanted]

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to get[his]premises vacated for some reason. That is to say thatanimportant element of real needalwaysattaches withWthe,“require”.WordInfact,thisimportant wordusedinthisbenevolentlegislationcannotbemeantasamere wishorthinkingofthelandlord,whichmaydependuponhisconveniencelor having some more better facilities for him or hisfamily.Theuseroftheword“bona—nde"withthewordV“require " clearly goes to show that the action of the landlordshouldnotbearbitraryoradevisedmethodofforcifullythrowingthetenant fromtherentedpremises..Infact,therequirement. must be proved sincere, honest and genuine, thenonly the same can be classihed as .a “bonahde requirement” ofthe landlord.The Hon’ble Apex Court in the matter of PratapRai Tanwani and another -Vs- Uttam Chaud and anotherreportedin (2004i 8 SCC 490 held that[“one]of the groundsLE1f0;evictioncontemplatedbyallthelegislationswhichotherwise generally lean heavily in favour of the tenants, is thernefed of the owner landlord to have own premises, residential ornoh-msidenu'al,for his own use or his own occupation.Theexpressions employed[by][ dinerent]legislations may vary suchas“bonanderequirement”“genuine“requires ,maisonably andin goodfaith”,andso on.Whatever betheexplanation employed,the underlying legislative intent is oneandthathasbeendemonstratedinseveraljudicial"proinouncements.(Please[see]para 12 of the JudgmenthiReferring to the decisions of the Apex Court in the matterof Girlabbaii—Vs- Nalin Narsi Vohra reported in [19911 3 SCC

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483 and Beqa Beaum[—Vs-]Abdul Aha'd Khan reported in (1 979)1SCC273,theapexCourtfurtherheldthatW“thewords“reasonablerequirement”undoubtedlypostulatethattheremust be an element of need as opposedto a mere desire orwish.Thedistinctionbetweendesireandneedshoulddoubtlessbekept in mind but not so asto make even thegenuine[need][ as][ nothing][ but][ a][ desire”.](Please[see]para[14][ of]theJudgment).ReferringtoanotherdecisionreportedinV [17999)6‘ SCC 222LShiv[Sump][ Gupta]V.DnMahesh ChandGupta),the apex Court held that[“the]the concept of bonahderequirement in the sense of felt need which is an outcome of asincere,honestdesire,incontradistinctionwithamerepretence[or]pretext[to evict][ a][ tenant][ refers to]a state of mind'i prevailing with the landlord. The only way of peeping into themind of the landlord is an exercise undertaken by the judge offacts by placing himself in the armchair of the landlord andthen posing a question to himself—whether in the given facts,substantiated by the landlord, the need to occupy the premisescan be said to be natural,real,sincere, honest.If the answerbe in the positive, the need is bona tide.”(Please[see]para[15][ of]the Judgment).

In the opinion of this Court, in fact, if the aforesaid testsareappliedinthepresentmatter,theplaimilfscouldnotestablish their bonaflde need for a very small room of 12ft. x7.3ft.sizeandthereversing judgmentanddecreeof theappellate Court is Well founded in this regard.

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(10) Comingto~thenextquestionofrsquirementfor''areconstruction, this Court can only say that the plaintih's couldnot plead or establish any such ground as has becn mantionedin section 12(1)(g) of the Act.Section 12(1)(g) reads as under:

(g) that the accommodation has become unsafe,orunntforhumanhabitationandisrequiredbonahdebythelandlordfor'carrying[out][ repairs][ which][ cannot][ be][ carried]outwithouttheaccommodationbeingvacated.”

The pleadings in this regard are made vide para 8 of the[ e]plaint[which][ are][ as][ follows:]

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It is clear from the aforesaid paragraph that the plaintin‘sareclaimingthattheywilldemolishtheconstructionandthereafter they will carry on new construction (reconstruction)works.This Court is surprised to see the pleadings of abovenature.How a single room situated on the hrst door of a multi-storayedbuilding can be demolishedfor the purposes of re-construction.It is not the case ofplaintih's[that][ they][ want][ to]demolish the entire building and thereafter they want to raisecertain new construction over the suit land.Though the hrstappellate Court has not dealt with the matter on this line, butit has dealt vide para 18 of the judgment holding that for thepurposes[of][ condition][ of][ the][ building][ and][ reconstruction,][ no]documentary or oral evidence has been led by theplaintih's.

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Eyenthecertificates &omtheMunicipalCorporation or the‘uma‘p &omtheArchitectoi“ theother documentalyevidencewhich could have been produced m this regard have not beenproducedbythemThehrstappellateCourthasnghtlyreversed the hndmg 1n this regard and this Court also feels thatthe reversion is proper.Not only this, the plaintm‘s have alsonot established that there'was some arrears of rent which was"calculated @ Rs.260/- payable by the defendant;The hndingtinithis regard, arrived at by the trial Comt is not correct as thesame 1s not based on any posmve ev1dence on recordand theF'it Appellate Court has rightly held that the plaintih‘s couldnot prove that the defendant has not paid arrears of rent as‘ cla1med by the plaintih’s.

(11) In the opinion of this Courtthere 1s no pervers1ty 1n thefinding recorded by the lower appellate Court that the plamtnEscouldnot estabhshthattheaccommodation wasbonatidelyrequired by them for res1dence of their family members or it isbona-nde required for carrying out repairs or reconstruction asthe same has become unsafe or unfit for human habitation andthe repairs cannot be carried out without the accommodationbeing vacated or the defendant was in arrears of rent.

(12) This Court is also conscious about the jurisdiction to beexefrcised u/s 100 of the Code of Civil Procedure.The Hon’bleiApefxi Courtg has laid. down in thet matter of Reap Singh (Dead)through.v LRs-Vs- Ram Singh (DeLdz through LRs reported, in’1(20pm[3][ sec][ 708]that under Section 100 of the Code of CiviliProicedure,the jurisdiction of the Court to entertain a second sa qua appealiscomedonlytosuchappealswhichinvolvea‘1SubstantialquestionoflawanditdoesnotconferanyjurisdictionontheHighCoulttointerferewiththepurequestionsoffactwhileexercisingitsjurisdictionu/s100C.P.C.It has been further laid down by the Apex Court thatthe existence of substantial question of law is the sine qua non‘for[the][ exercise][ ofjlirisdiction][ under][ the][ amended][ provisions][ of]Section100of the Code of Civil Procedure and unless suchquestions ‘aie[involved,]the appeals are not to be entertained‘see(PleaseThiagaraianandothersVs.SriVenoB. Koil and others reported in (2004) 5scc 762).

(13) Since no substantial questions of law are involved in thiscase, this Court is not inclined to interfere in the judgment andthe decree passed by the lower appellate Court and the appealisrequiredtobedismissedattheadmissionstageitself.Accordingly,theappealisdismissedat the admissionstagewith no orders as to costs,air—ma—71_,