HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 205 of 1990
Chintamani
...Petitioners
versus
Sapan Kumar Das
...Respondents
! Shri H S Patel, counsel for the appellant
^ Shri Abhijeet Sarkar, counsel for the respondent
Honble Shri Dilip Raosaheb Deshmukh, J
Dated:16/02/2009
: Judgment
Appeal under Section 100 of the Code of Civil Procedure, 1908
JUDGMENT
(Delivered on this 16th day of February, 2009)
This is the unsuccessful tenant’s second appeal.
Civil Judge Class-II, Jashpurnagar had, by judgment and
decree dated 30-11-1987 in Civil Suit No.55-A/1987,
decreed the respondent/plaintiff’s suit for eviction
under Section 12(1)(e) of the Chhattisgarh
Accommodation Control Act, 1961 (henceforth `the Act’).
The appeal preferred by the appellant/tenant (Civil
Appeal No.10-A/1989) was also dismissed by the Ist
Additional Judge to the District Judge, Raigarh by
judgment and decree dated 02-04-1990.
(2) In this appeal, it is not in dispute that in
relation to the suit accommodation let out purely for
residence, the appellant/defendant is the tenant of the
respondent/plaintiff.
(3) The respondent/plaintiff had, by instituting Civil
Suit No.55-A/1987 on 17-07-1984, sought eviction of the
appellant/defendant from the suit accommodation, i.e.,
House No.203, situated in Kevda Badi, Ward No.15,
Raigarh on the ground that he required the suit
accommodation bona fide for residence as also for his
business since notice dated 23-04-1984 was served on
him by his brothers Tapan and Pawan to vacate their
garage and to shift his gas-welding plant and also to
make arrangement for living elsewhere. It was averred
that the plaintiff had no other reasonably suitable
accommodation of his own in Raigarh for the said
purpose.
(4) The appellant/defendant resisted the suit on the
ground that the alleged notice dated 23-04-1984 was
fake and a mere pretext for making out a ground for
eviction. It was not pleaded that the
respondent/plaintiff had, in his vacant possession any
other reasonably suitable accommodation for residence
in Raigarh.
(5) In Civil Appeal No.10-A/1989 an application under
Order 6 Rule 17 of the Code of Civil Procedure was
filed by the appellant/defendant for incorporating the
following amendment in the written statement:
“okni= dh dafMdk 12 ds mijkUr fuEufyf[kr rF;
laca/kh vfHkopu tksM+us dh Lohd`fr nh tk;%&
dafMdk 12 ds mijkUr 12 ,v+
12 ,v+ ;g fd oknh dk ,d fjgk;’kh edku
oknxzLr edku ds fiNokMs+ esa gS A mDr edku
eas eugj.k flag Bkdqj fdjk;snkj Fkk A mlus lu
1983 ds vizSy & ebZ ekg esa [kkyh dj fn;k A
mDr edku 3 & 4 ekg rd [kkyh jgk rnmijkUr lu
1984 esa oknh us mDr edku dks ,d gjhjke dks
tuojh lu 1984 esa 80+ :i;s ekgokjh fdjk;s ij
fn;k A bl rjg oknh dks edku dh vko’;drk ugha
gS A”
By the impugned judgment and decree, the above
application as also the appeal were dismissed.
(6) The following questions of law arise for
determination in this appeal:
“1. Whether the decree of eviction granted by
lower court against the appellant tenant on
grounds under Section 12(1)(e)(f) of the M.P.
Accommodation Control Act, 1961 is vitiated
due to non consideration of the fact that
there is no evidence led by the landlord that
the existing accommodation with him was not
suitable for his needs?
2. Whether the decree of eviction is bad in
the absence of proof of partition and
allotment of the suit accommodation to the
share of the respondent and the finding in
that respect of the first appellate Court is
sustainable in law?
3. Whether the first appellate Court was
wrong in dismissing the application of the
tenant under Order 6 Rule 17 of the C.P.C. for
amending his written statement?”
(7) Shri H.S.Patel, learned counsel for the
appellant/defendant placed reliance on North Eastern
Railway Admin, Gorakhpur vs. Bhagwan Das (D) By Lrs.,
2008 SAR (Civil) 490 while arguing that the lower
appellate Court ought to have allowed the application
for amendment under Order 6 Rule 17 of the Code of
Civil Procedure filed by the appellant/defendant to
introduce a subsequent event by way of pleadings. It
was urged that the amendment if allowed would have
shown that a reasonably suitable accommodation in
Raigarh had been let out by the respondent/plaintiff
after it fell vacant. It was also argued that the
decree for eviction of the tenant on the basis of a
composite need could not be passed since the
accommodation was let out purely for residential
purpose. Reliance was placed on Smt. Sarla Devi Gupta
vs. Smt. Tara Devi Dubey, 2007 (3) C.G.L.J. 88.
(8) On the other hand, Shri Abhijeet Sarkar,
learned counsel for the respondent/plaintiff argued in
support of the impugned judgment and decree and urged
that the respondent/plaintiff had proved the notice
dated 23-04-1984 Ex.P-6 given by his brothers which
would go to show that the respondent/plaintiff was
asked to vacate the joint family residence and also the
garage where he was carrying on his gas-welding
business. It was further urged that the suit was
instituted on 17-07-1984 and the amendment sought by
the appellant/defendant revealed that the accommodation
on vacation by Manharan Singh Thakur, a tenant in April-
May, 1983, the respondent/plaintiff had let out that
accommodation in January, 1984. It was urged that the
notice to vacate the joint family residence was given
by the brothers of the respondent/plaintiff on 23-04-
1984, i.e., much after the respondent/plaintiff had let
out the abovementioned accommodation to Hariram in
January, 1984. In a suit for eviction, the
respondent/plaintiff was required to establish bona
fide requirement on the date of the suit, therefore,
the lower appellate Court was wholly justified in
rejecting the application under Order 6 Rule 17 of the
Code of Civil Procedure filed by the
appellant/defendant.
(9) Having heard the rival contentions, I have perused
the impugned judgment and decree as also the record. It
is well settled that an accommodation let out for
residential purpose cannot be got evicted under law on
the ground of bona fide requirement for non-residential
purpose. In a case where the accommodation is let out
purely for residential purpose and a composite need for
residence as well as non-residence is put forth by the
landlord, the Court has to examine whether the
requirement of the accommodation by the landlord is
predominantly residential or not. If the Court comes to
the conclusion that the landlord predominantly requires
the accommodation for residential purpose, then a decree
for eviction under Section 12(1)(e) of the Act could be
passed. On the other hand, if the Court comes to the
conclusion that the landlord predominantly requires the
accommodation for non-residential purpose, a decree for
eviction could not be passed against the tenant.
Statement on oath of the respondent/plaintiff Sapan
Kumar Das was recorded under Order 10 Rule 2 of the Code
of Civil Procedure by the trial Court on 21-01-1986,
wherein he stated as under:
“——————-esjk Lor% dk xSl osfYMax
dk nqdku gS- tks fd esjs NksVs HkkbZ dh fgLls
dh gS- blfy;s eq>s oknxzLr edku esa nqdku
LFkkfir djuk gS- blfy;s eq>s oknxzLr edku dh
t:jr gS-”
This clearly goes to show that the respondent/plaintiff
required the suit accommodation for setting up his gas-
welding plant, i.e., non-residential purpose. In his
testimony recorded on 09-01-1987, Sapan Kumar Das had
stated in paragraph 3 as under:
“oknxzLr edku ds vykok jk;x<+ 'kgj esa esjs
ikl jgus ds fy, dksbZ edku ugha gS] eSa xSl
osfYMax dk dke djrk gWwA eSa vius HkkbZ ds
xSjst esa dke dj jgk gWwA oknxzLr edku esa eSa
fuokl djuk pkgrk gWw vkSj lkFk gh lkFk xSjst
[kksydj xSl osfYMax dk dke djuk pkgrk gWwA"
A perusal of the notice Ex.P-6, which furnished a cause
of action in favour of the respondent/plaintiff also
shows that on account of the use of the garage by the
respondent/plaintiff for a gas-welding plant, lot of
disturbance was being caused. It is, therefore, safe
to presume that the requirement of the suit
accommodation by the respondent/plaintiff was
predominantly for non-residential purpose. In
paragraph 10 of his testimony, the respondent/plaintiff
further stated that about 1+ years before deposing on
09-01-1987 before the trial Court, the accommodation
occupied by Dharnidhar Shadangi in the first floor of
his house had also fallen vacant. This clearly goes to
show that the requirement for residence projected by
the respondent/plaintiff was not bona fide and he
predominantly required the suit accommodation for using
it for establishing his gas-welding plant. In
paragraph 11 of its judgment, the trial Court had also
mentioned as under:
“11. mijksDr rF;ksa ds vykok oknh liu dqekj
(ok0lk0 1A ds vuqlkj og xSl osfYMax dk dke
djrk gS vkSj mls xSl osfYMax dh e’khu cVokjs
esa feyh gS vkSj og vius HkkbZ ds xSjst esa
xsSl osfYMax dk dke dj jgk gS mlds HkkbZ mls
nqdku ls tkus ds fy, dg jgs gSa blfy;s og
oknxzLr edku esa xSjst [kksydj xSl osfYMax dk
dke djuk pkgrk gSA izfroknh fpUrke.kh (iz0lk0
1A us ;g crk;k gS fd oknh M&k;Ogj gS vkSj igys
vkj0ds0 fey jk;x<+ esa thi pykus dk dke djrk
FkkA ysfdu oknh }kjk ukSdjh fd, tkus ds laca/k
esa izfroknh us u rks dksbZ izek.k is'k fd;k
gS vksSj u gh oknh ls ftjg ds nkSjku mDr rF;
dks yk;k gSA cfYd mlds foijhr Lo;aa izfroknh
fpUrke.kh rFkk mlds xokg 'kaHkw (iz0lk0 2A us
oknh dks iqfyl ykbu ds lkeus xSjst esa xSl
osfYMax dk dke djuk Lohdkj fd;k gSA tSlk fd
mij dh dafMdk dzekad 10 esa ;g mYys[k fd;k x;k
gS fd oknxzLr edku fuokl ds vykos xSjst ds fy,
Hkh mi;qDr gSA"
The above observation of the trial Court also
substantiates the inference drawn by me that the
requirement of the suit accommodation projected by the
respondent/plaintiff was predominantly for non-
residential purpose. In this view of the matter, an
accommodation let out for residential purpose could not
be got evicted on the ground of requirement for non-
residential purpose. Both the Courts below have, thus,
erred in law in granting a decree for eviction of the
appellant/tenant under Section 12(1)(e) of the Act.
The first substantial question of law is accordingly
answered that the decree for eviction under Section
12(1)(e) of the Act granted by the trial Court and
affirmed by the lower appellate Court is liable to be
set aside.
(10) Since the learned counsel for the
appellant/defendant had, at the very outset, admitted
that the relationship of landlord and tenant existed
between the appellant/defendant and the
respondent/plaintiff, the second substantial question
of law loses its significance and would not arise for
determination of this appeal.
(11) So far as the rejection of the application under
Order 6 Rule 17 of the Code of Civil Procedure by the
lower appellate Court is concerned, the trial Court had
decided Civil Suit No.55-A/1987 on 30-11-1987. There
is nothing to show that the application for amendment
could not have been filed in the trial Court despite
due diligence. Since the cause of action had accrued
to the plaintiff pursuant to a notice dated 23-04-1984,
the letting out of an accommodation that had fallen
vacant, by the respondent/plaintiff in January, 1984,
would be of no consequence because the bona fide
requirement projected by the landlord is to be assessed
on the date of suit. The lower appellate Court was,
thus, wholly justified in rejecting the application
under Order 6 Rule 17 of the Code of Civil Procedure.
The last substantial question of law is, therefore,
answered in the negative.
(12) In the result, the appeal is allowed. The
impugned judgment and decree passed by the lower
appellate Court as also the judgment and decree passed
by the trial Court are set aside. The suit is
dismissed. In the facts and circumstances of the case,
the parties shall bear their own costs.
(13) A decree be drawn accordingly.
JUDGE