JUDGMENT
A.M. Sapre, J.
1. Appellant is the defendant/tenant. He has suffered eviction decree at the instance of plaintiff inter alia on the ground covered under Section 12(1) (f) and (c) of M.P. Accommodation Control Act from two Courts below. It is against this judgment/decree, the defendant/tenant is in second appeal under Section 100 of C.P. Code. It arises out of judgment/decree, dated 30-10-1999, passed by learned 1st Additional District Judge, Shajapur, in C.A. No. 4-A of 1998, which in turn arises out of Civil Suit No. 15-A of 1987, decided by Vth Civil Judge, Class I, Sarangpur, on 23-7-1997. It was admitted for final hearing on following substantial questions of law :–
“(1) Whether the learned Judge has erred in passing a decree on the ground of Section 12 (1) (c) when the appeal has only challenged the derivative title ?
(2) Whether the learned Judge has erred in confirming the judgment and decree under Section 12 (1) (f) without deciding the point of genuine need of the plaintiff and without deciding whether he is the owner of the property or not ?
(3) Whether the learned Judge has ‘erred in confirming the decree on the ground of Section 12 (1) (f) when the plaintiff admittedly come into possession of alternative accommodation without there being a pleading of existence of such alternative accommodation and its unsuitability or insufficiency ?
(4) Whether the impugned judgment and decree is perverse and illegal ?”
2. Heard Shri G.M. Chafekar, learned Senior Counsel with Ku. V. Kasrekar, learned Counsel for the appellant and Shri A.K. Sethi, learned Counsel for the respondents.
3. Having heard the learned Counsel for the parties and having perused the record of the case, I find no substance in the appeal and hence, it merits dismissal.
4. It is now a too well settled principle of law laid down by the Supreme Court in series of cases and which is being consistently followed by the High Courts as law laid down under Article 141 of Constitution of India that a question of bona fide need set up by the plaintiff (landlord) whether for residential purpose or non-residential, is a question of fact. It is only when the finding so recorded on this issue is found to be de hors the pleading or against the evidence led or is based on no evidence, or is against the statutory requirement of law [12 (1) (i) of the Act], or it is so bad that no judicial man can ever reach to its conclusion, then such finding is amenable to interference in second appeal. When I examine the facts of this case keeping in view these parameters then I am unable to notice any such infirmity in the impugned judgment and hence, it deserves to be upheld.
5. Coming to the facts of this case. As observed supra, it is a case of eviction where the decree for eviction was claimed on two grounds namely–Section 12 (1) (c) of the Act, i.e., denial of title and Section 12 (1) (f) of the Act bona fide need, of one of the plaintiff – Dilip for opening grossery shop (Kirana shop). As observed supra, both the Courts have held that both the grounds taken by the plaintiff stood proved entitling the plaintiff to get rid of the defendant/tenant from the suit accommodation.
6. As regards the ground falling under Section 12 (1) (f) of the Act is concerned, when both the Courts have held the need to be bona fide and genuine, this Court would be very slow to interfere in such concurrent finding of fact as has been already taken note of supra. Here is a case where the plaintiffs (three in number) have purchased the suit accommodation by registered deed of sale (Ex. P-1) from its previous owner/landlord and then have filed a suit on the strength of they becoming owners of the suit accommodation. There is nothing to disbelieve the case set up by the plaintiff so far as his (Dilip – one of the plaintiff) bona fide need for grossary shop is concerned. It has neither any element of malice or mere desire or vengeance against the defendant. Indeed, nothing has either been pleaded and/or proved so far as defendant is concerned by way of rebuttal.
7. Submission of learned Counsel for the appellant was mostly on the ground of availability of some alternative accommodation. I do not find any merit in this submission. Firstly, it is again an issue relating to facts involving no substantial question of law as such. Secondly, this issue was expressly taken note of by the Court below and negatived on facts by holding that so far as some shops are concerned they are owned by Dilip’s mother and hence, can not be made basis for considering the need of Dilip. It was also held that even those shops are not available for being used. Thirdly, one shop which according to defendant is available to plaintiff was found by the two Courts to be not suitable. Indeed, for coming to this conclusion, the Courts below relied upon the admission of defendant himself when he said that the said shop is in damaged condition and thus can not be used for carrying on any business. What is material in such case is not the availability of shop alone but it must equally be proved to be suitable for being used a shop. When it has come in the evidence of parties that the shop pointed out by the defendant is in a dilapidated condition and is damaged, then in such case, the same can not be held to be an alternative and suitable accommodation being available to the plaintiff. As held supra, it being again a question of fact and being probed into by two Courts against the defendant can not be faulted with so far as this Second Appellate Court is concerned. It is much more so when it does not involve any perversity in its approach.
8. Once, I uphold the finding in so far as ground under Section 12 (1) (f) of the Act is concerned, I need not consider any other ground namely Section 12 (1) (c) though upheld by the two Courts against the defendant. It then becomes academic and unnecessary.
9. It is a settled principle relating to law of eviction that defendant can be evicted only on one ground of eviction and it is not necessary that plaintiff should be called upon to make out ail the grounds taken by him in the plaint for defendants eviction as has happened in this case.
10. As a result of aforesaid discussion, the appeal fails and is dismissed. However, taking into account all facts and circumstances of the case and the fact that defendant has been in possession, I grant appellant/defendant three months time to vacate the suit accommodation from the date of this judgment, provided appellant deposit entire arrears of rent together with the cost, if awarded within two weeks from the date of this judgment. The appellant shall also deposit three months rent in advance by way of damages for use and occupation within fifteen days and shall further submit an undertaking before the Executing Court duly supported by an affidavit that he shall vacate the suit accommodation on the expiry of three months from the date of this judgment. In case, if appellant complies with these conditions, the respondent will not execute the decree upto three months. Failure to comply, will entitles the respondent to execute the decree.
No costs.
C.C. within a week.