HUKUM CHANDRA (D) THR. LRS. versus NEMI CHAND JAIN & ORS. on 14 December 2018

1. This appeal arises out of the judgment dated 25.04.2012 passedby the High Court of Madhya Pradesh in Second Appeal No.279 of2007 affirming the judgment and decree passed by the first appellateBcourt for eviction of appellant from the suit premises.

2. The appellant is a tenant in the shop measuring 6.3 feet x 15feet on the ground floor of a building located at Sarrafa Bazar, Muraina,Madhya Pradesh. The respondent No.1 filed a civil suit under Section12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 (theCAct) seeking eviction of the appellant from the suit shop on the groundof bona fide requirement to settle his son Rajendra Kumar Jain. Byjudgment dated 30.06.2004, the trial court dismissed the suit holding thatRajendra Kumar was already doing an independent business of utensilsand he was not unemployed and also found that respondent-landlord hasnot established the genuine bona fide requirement. The trial courtDdismissed the suit by finding that there is no ground for decree of evictionagainst the appellant herein under Section 12(1)(f) of the Act. So far asthe arrear of rent is concerned, the trial court found that no ground foreviction was made out under Section 12 (1)(a) of the Act.

3. The respondent - landlord appealed against the judgment of theEtrial court. The first appellate court set aside the judgment of the trialcourt by holding that the documents produced by the appellant that theypertain to the year 1996, 2000 and 2001 and those documents do notshow that Rajendra Kumar was engaged in the business on the date offiling of the suit i.e. on 22.01.1992. The first appellate court held that theFbona fide requirement of the suit shop is to be examined on the date offiling of the suit i.e. 22.01.1992. After referring to the judgment of theMadhya Pradesh High Court in Bishanswaroop v. Rajkumar Kuchata& Ors. 2015 (1) M.P.A.C.J.-151, the first appellate court held that itwould be inappropriate to expect that the land owner should sit idle andnot to perform any work till the suit for eviction is decided on the basis ofGbona fide requirement. Observing that the landlord has established thebona fide requirement for establishing business for his son RajendraKumar, the first appellate court set aside the judgment of the trial courtand allowed the first appeal.

4. The second appeal preferred by the appellant was dismissedHupholding the judgment passed by the first appellate court that once landlord establishes the bona fide requirement by evidence on the standardof preponderance of probabilities under Section 12 (1)(f) of the Act,technicalities raised by the defendant – tenant should be ignored. Insofaras the application filed under Order 41 Rule 27 CPC to bring on recordthe additional documents to show that the respondent - landlord on14.11.2006 obtained vacant possession of the adjacent shop from tenantBabulal is concerned, the High Court held that the same is of no avail tothe appellant – defendant. Being aggrieved, the appellant - defendanthas preferred this appeal.

5. The learned senior counsel for the appellant submitted that theconditions required for exercise of jurisdiction under Section 12 (1)(f) ofthe Act was not proved in as much as, the son of the respondent -landlord was already in the business of utensils from the shop in thesame building and this aspect was not properly considered by the HighCourt. It was submitted that the High Court has not appreciated theadditional evidence adduced by the appellant that the other tenant Babulalhas vacated the shop occupied by him. Placing reliance upon DeenaNath v. Pooran Lal (2001) 5 SCC 705, it was contended that therequirement of the landlord which has not been established in the casemust continue to exist till the final decision of the court.

6. Per contra, the learned senior counsel appearing for therespondent - landlord placed reliance upon Gaya Prasad v. PradeepSrivastava (2001) 2 SCC 604 and submitted that the crucial date fordeciding the bona fide requirement of the landlord, is the date on whichthe suit was filed for eviction and that the subsequent event cannot eclipsethe said bona fide requirement unless the subsequent event overshadowsthe requirement of the landlord. The learned senior counsel furthersubmitted that after detailed analysis of the evidence adduced by theparties, the first appellate court rightly held that the requirement of thesuit shop for the utensils business of landlord’s son Rajendra Kumar isgenuine and bona fide which was rightly affirmed by the High Court. Itwas urged that when there are concurrent findings of fact arrived at bythe courts below that there is bona fide requirement and that therespondent has no suitable accommodation other than the suit shop, thesame cannot be interfered by this Court.

7. We have considered the submissions of the parties and perusedthe impugned judgment and materials on record.

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A8. The respondent - landlord sought eviction under Section 12(1)(f) of the Act, on the ground of bona fide requirement for use of hisson Rajendra Kumar Jain. Section 12(1)(f) of the Act under which theeviction of the tenant was sought reads as follows:-

“12. Restriction on eviction of tenants.—(1) NotwithstandingBanything to the contrary contained in any other law or contract,no suit shall be filed in any civil court against a tenant for hiseviction from any accommodation except on one or more of thefollowing grounds only, namely:

(a) -(e)

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C(f) that the accommodation let for non-residential purposes isrequired bona fide by the landlord for the purpose of continuing orstarting his business or that of any of his major sons or unmarrieddaughters if he is the owner thereof or for any person for whosebenefit the accommodation is held and that the landlord or suchperson has no other reasonably suitable non-residentialDaccommodation of his own in his occupation in the city or townconcerned;”

9. Considering the scope of Section 12(1)(f) of the Act, this Courtin Deena Nath’s case held as under:- “15…. The section, on a plain reading, is clear and specific. TheEcriteria to be fulfilled for an order of eviction under the provisionare:

(i) that the non-residential accommodation is required bonafide by the landlord for the purpose of continuing or starting hisbusiness or that of any of his major sons; and F

(ii) that the landlord or such person has no other reasonablysuitable non-residential accommodation of his own in hisoccupation in the city or town concerned.”

The legislature in enacting the provision has taken ample care toavoid any arbitrary or whimsical action of a landlord to evict hisGtenant. The statutory mandate is that there must be first arequirement by the landlord which means that it is not a merewhim or a fanciful desire by him; further, such requirement mustbe bona fide which is intended to avoid a mere whim or desire.

The “bona fide requirement” must be in praesenti and must beHmanifested in actual need which would evidence the court that itis not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord hasno other reasonably suitable residential accommodation of his ownin his occupation in the city or town concerned. This requirementlays stress that the need is pressing and there is no reasonablysuitable alternative for the landlord but to get the tenant evictedfrom the accommodation. Similar statutory provision is made inclause (e) of Section 12(1) of the Act in respect of accommodationlet for residential purposes. Thus, the legislative mandate beingclear and unambiguous, the court is duty-bound to examine notmerely the requirement of the landlord as pleaded in the evictionpetition but also whether any other reasonably suitable non-residential accommodation in his occupation in the city/town isavailable….”

10. Based on the documents Exs.D-13 to D-15 and Ex.D-25, thetrial court held that the documents show that Rajendra Kumar was doingthe business under the name “Rajendra Bartan Bhandar” and thatRajendra Kumar cannot be said to be unemployed. After referring tothe ration card of Rajendra Kumar, the trial court held that in the rationcard which was issued by the Chief Municipal Corporation Officer toRajendra Jain S/o. Nemichand Jain, Ward No.21/121, Lohiya Bazar,Muraina, it is mentioned that Rajendra Kumar is in the business forutensils. Likewise, in the insurance - Ex.D-27 in the name of RajendraKumar, it is stated that he is presently having a business of “Bartan KiDukaan” and his annual income is Rs.30,000/- per year. The trial courtalso referred to Ex.D-13 - the summary case presented before the ChiefJudicial Magistrate for violation of provisions of the Weight andMeasurement Act, 1976 in which Rajendra Kumar was imposed with apenalty of Rs.1,000/-. Upon consideration of various documents, thetrial court held that Rajendra Kumar is already carrying a business ofutensils and cannot be said to be unemployed and, therefore, held thatthe respondent - landlord has not established bona fide and genuinerequirement of the suit premises for business of Rajendra Kumar.

11. Contention of the appellant is that when the trial court recordedthe findings of defendant that Rajendra Kumar was already in the businessof utensils, this aspect was not properly appreciated by the first appellatecourt and the High Court. The learned Senior Counsel submitted thatthere is a distinction between a mere desire and need of the landlord andmere desire cannot be equated with the genuine requirement. It wassubmitted that, since Rajendra Kumar was already in business, therewas no bona fide and genuine requirement of the suit premises and the A

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AHigh Court ought not to have affirmed the order of eviction. In supportof his contention, the learned senior counsel placed reliance upon twojudgments T. Sivasubramaniam and Others. v. Kasinath Pujari andOthers. (1999) 7 SCC 275 and Hameedia Hardware Stores,represented by its partner S. Peer Mohammed v. B. Mohan LalSowcar (1988) 2 SCC 513.B

12. The first appellate court considered the various documentsproduced by the appellant - tenant and held that those documents do notrelate to the date of filling of the eviction petition. So far as Exs.D-13,D-14 and D-15, the first appellate court held that those bills were issuedin the year 1996, 2000 and 2001 and that they do not show that RajendraCKumar was engaged in the business on the date of filing of the suit foreviction i.e. on 22.01.1992. Insofar as, the levy of fine of Rs.1,000/- inthe criminal case for the violation of provisions of the Weights andMeasurements Act, the first appellate court held that the said penaltywas of the year 1988 and not relating to the period of 1992 - the time ofDfiling of the eviction petition. So far as Ex.D-25, application made to thetelephone department, the first appellate court pointed out that the datebelow the signature of Rajendra Kumar has been mentioned as08.06.1996 and not relating to the year 1992. Likewise, regarding Exs.D-26 and D-27, the documents concerning the life insurance policy, thefirst appellate court pointed out that the insurance was taken for theEyear 1994 and not for the year 1992. Likewise, referring to the otherdocuments filed by the appellant/defendant, the first appellate court heldthat those documents are not related to the time of filing of the suit i.e.1992 and they do not show that Rajendra Kumar was engaged in thebusiness of utensils in the year 1992 i.e. at the time of filling of theFeviction petition. Upon consideration of the documents, the first appellatecourt and the High Court recorded concurrent findings that the respondentlandlord has clearly established that Rajendra Kumar was not employedon the date of filling of the eviction petition i.e. 22.01.1992 and the bonafide requirement has been proved.

13. In the present case, mere fact that Rajendra Kumar wasGinvolved in the business of utensils – “Rajendra Bartan Bhandar” abona fide need of the premises cannot be doubted. It would beinappropriate to expect the son of the respondent – landlord to sit idlewithout doing any work till the eviction petition is decided on the basis ofthe bona fide requirement. If there is categorical averment by theHrespondent that the premises is required for his son Rajendra Kumar; engaging in the business of utensils in the meanwhile, cannot be a groundto deny a decree for eviction.

14. The other contention of the appellant is that respondent –landlord had obtained possession of the adjacent shop from another tenant- Babulal subsequently and the landlord, therefore, has an alternativeshop in the same building in the same market and, therefore, the conditionprecedent for exercise of jurisdiction under Section 12(1)(f) of the Actwas not satisfied. Before the High Court, the appellant – tenant hadfiled I. A. No.18652/09 under Order 41 Rule 27 CPC to bring on recordthe eviction of the tenant Babulal as per judgment in S.A. No.472/2002dated 01.09.2005, pursuant to which the respondent – landlord hasobtained vacant possession on 14.11.2006 of another shop by vacatinganother tenant – Babulal. The contention of the appellant is that theavailability of another shop by subsequent event was not properlyappreciated by the High Court and the requirement of the landlord wasnot praesenti.

15. Rights of the parties stand crystallised on the date of institutionof the suit. However, in appropriate cases, court can take note of all thesubsequent events. Observing that the court may permit subsequent eventbeing introduced into the pleadings by way of amendment as it would benecessary to do so for the performance of determining the rule incontroversy for the parties provided certain conditions are being satisfied,in Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256, it washeld as under:- “11. The ordinary rule of civil law is that the rights of the partiesstand crystallised on the date of the institution of the suit and,therefore, the decree in a suit should accord with the rights of theparties as they stood at the commencement of the lis. However,the Court has power to take note of subsequent events and mouldthe relief accordingly subject to the following conditions beingsatisfied: (i) that the relief, as claimed originally has, by reason ofsubsequent events, become inappropriate or cannot be granted;(ii) that taking note of such subsequent event or changedcircumstances would shorten litigation and enable complete justicebeing done to the parties; and (iii) that such subsequent event isbrought to the notice of the court promptly and in accordancewith the rules of procedural law so that the opposite party is nottaken by surprise. In Pasupuleti Venkateswarlu v. Motor &General Traders (1975) 1 SCC 770, this Court held that a fact A

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Aarising after the lis, coming to the notice of the court and having afundamental impact on the right to relief or the manner of mouldingit and brought diligently to the notice of the court cannot be blinkedat. The court may in such cases bend the rules of procedure if nospecific provision of law or rule of fair play is violated for it wouldpromote substantial justice provided that there is absence of otherBdisentitling factors or just circumstances. The Court speakingthrough Krishna Iyer, J. affirmed the proposition that the courtcan, so long as the litigation pends, take note of updated facts topromote substantial justice. However, the Court cautioned: (i) theevent should be one as would stultify or render inept the decretalCremedy, (ii) rules of procedure may be bent if no specific provisionor fair play is violated and there is no other special circumstancerepelling resort to that course in law or justice, (iii) such cognizanceof subsequent events and developments should be cautious, and(iv) the rules of fairness to both sides should be scrupulouslyobeyed.”D

16. The normal rule is that in any litigation the rights and obligationsof the parties are adjudicated upon as they obtained at the commencementof the litigation. Whenever, there is subsequent events of fact or law,which have a material barring on the rights of the parties to relief or onthe aspects of moulding appropriate relief to the parties, the court is notEprecluded from taking cognizance of the subsequent changes of factand law to mould the relief (vide Ramesh Kumar v. Kesho Ram (1992)Supp 2 SCC 623)

17. In Gaya Prasad relying on earlier decisions, this Court heldthat the crucial date for deciding as to bona fide requirement of landlordFis the date of his application for eviction. It was a case of bona fiderequirement of the premises in question for starting a clinic by the son ofthe landlord. The litigation continued for 23 years and during that periodthe son of the landlord joined Provincial Medical Service and was postedat different places. The Court refused to take notice of the subsequentevent holding that the crucial date was the date of filing of the evictionGpetition.

18. In the light of the above principles and considering the case inhand, the fact remains that the present case is of a landlord – tenantdispute. As discussed infra, the shop vacated by other tenant – Babulalis for the bona fide requirement of respondent – landlord’s another sonHRajesh Kumar Jain. In that view of the matter, the court would not be justified in taking notice of such a subsequent fact sought to be projectedby the appellant to oppose the relief granted by the courts below. In thefacts and circumstances of the present case, the subsequent event reliedupon by the appellant – tenant cannot be taken cognizance.

19. Admittedly, respondent – landlord obtained vacant possessionof the adjacent shop from the other tenant – Babulal on 14.11.2006 inpursuance of an order dated 01.09.2005 passed by the High Court inSecond Appeal No.472 of 2002. But the learned Senior Counsel appearingfor the respondent – landlord submitted that the decree for eviction ofthe said tenant – Babulal was on the ground of bona fide requirement ofRajesh Kumar Jain (other son of respondent – landlord) as envisagedunder Section 12(1)(f) of the Act. It was submitted that respondent –landlord’s another son Rajesh Kumar Jain has occupied the said adjacentshop and doing the business of “Sara”. Respondent – landlord has foursons and the other shop vacated by tenant – Babulal is meant for thebona fide requirement of another son Rajesh Kumar Jain. If that shop isnot actually occupied by the other son Rajesh Kumar Jain, the othertenant Babulal has a right to initiate the proceedings against the landlordfor his re-entry in the said adjacent shop in terms of the provisionscontained in Section 17 of the Act. Therefore, it cannot be said thatalternative accommodation was available for the respondent – landlord’sson Rajendra Kumar due to vacation of the said adjacent shop by anothertenant Babulal.

20. Considering the pleadings and evidence on record, the HighCourt rightly held that there is no ground to entertain the additionaldocuments and no substantial question of law arises. Upon considerationof oral and documentary evidence, the first appellate court and the HighCourt recorded concurrent findings of fact that the suit shop is requiredbona fide for the son of the landlord for the purpose of doing businessand that the respondent – landlord has no other reasonably suitable non-residential accommodation for the business of his son. We do not findany good ground warranting interference with the impugned judgmentand this appeal is bound to fail.

21. In the result, the judgment passed on 25.04.2012 in SecondAppeal No.279 of 2007 by the High Court of Madhya Pradesh isconfirmed and this appeal is dismissed. The appellant – tenant is grantedthree months’ time to vacate and handover the possession of the suitproperty. No costs.

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