JUDGMENT
Ram Pal Singh, J.
1. By this civil second appeal, the appellant-tenant challenges the judgment and decree passed by the Additional District Judge, Sheopur Kalian, camp Morena, in Civil Appeal No. 3A of 1982 dated 14-7-1982.
2. Respondent-landlord filed a suit against the appellant-tenant, for his eviction from the non-residential suit premises situate on Malgodam Road, Morena, on the grounds mentioned in Section 12(1)(a) and (f) of the M. P. Accommodation Control Act, 1961 (for short, hereinafter referred to as ‘the Act’) and also prayed for a decree of Rs, 282.50. In brief, the case of the respondent-landlord was that the appellant-defendant is his tenant of the suit shop, but he now bona fide requires the said non-residential accommodation for his major son Laxminarayan, to start his business and he has no other reasonably suitable non-residential accommodation of his own in his occupation in the town of Morena.
3. Appellant-defendant repelled the contents of the plaint and averred that the alleged need of the landlord is not bona fide. He further pleaded that just by the side of the suit shop, the landlord has a vacant non-residential accommodation in which his son can start the business without evicting him from the suit shop.
4. The trial Court after framing the issues and recording the evidence of the parties, answered the issues as given below : —
(i) Defendant has deposited the due rent within two months from the date of notice of demand for arrears of rent and is, thus entitled to get the benefit of the provisions of Section 12(3) and Section 13(1) of the Act.
(ii) Plaintiff requires bona fide the suit premises for his major son Laxminarayan for the purpose of starting transport business.
(iii) Plaintiff has no other reasonably suitable non-residential accommodation of his own within the municipal area of Morena.
The trial Court, thus, decreed the suit of the plaintiff with regard to the ground provided under Section 12(1)(f) of the Act. The appellant-tenant aggrieved by this judgment and decree passed against him, preferred an appeal. The first appellate Court expressed its concurrence with the judgment and decree passed by the trial Court and dismissed the appeal. Hence, now the appellant-tenant invokes the jurisdiction of this Court under Section 100, C.P.C.
5. This Court on 1-12-1982 admitted this appeal on the following substantial questions of law : —
“(1) Whether under Section 12(1)f) of the M. P. Accommodation Control Act, 1961, the burden to prove non-availability of reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned, lies upon the landlord-plaintiff?
(2) Whether the lower Court’s finding as to non-availability of alternative non-residential accommodation is vitiated on account of wrong placing on the defendant the burden to prove availability of alternative non-residential accommodation?”
6. Before taking up these questions, I propose to decide I.A. No. 2383 of 1985, filed with an affidavit by the appellant-tenant under the provisions of Order 41 Rule 27, C.P.C. By this application Shri R.D. Jain, learned counsel for the appellant, prays that the appellant be allowed to produce, as additional evidence, two photographs of the suit shop and that of the adjacent non-residential accommodation in the plaintiffs own possession. Shri R. C. Lahoti, learned counsel for the respondent, has not only hotly contested and opposed the said prayer orally but also in writing. According to him, this application of the appellant is not only mala fide, but the photographs are the result of trick photography, and it has been filed with an ulterior motive of delaying and defeating the decree passed in the plaintiff-landlord’s favour. He further contends that on the face of the concurrent findings of fact and also on the ground that the appellant had full opportunity to adduce his evidence before the trial Court, this mala fide chess-move at this stage on the part of the appellant be thwarted in the ends of justice. The objection is well taken and needs elaborate judicial treatment. For a proper appreciation, Rule 27 of Order 41 C.P.C. is reproduced below :
“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, or
(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.”
A bare reading of this provision indicates that the additional evidence shall not be allowed in the Appellate Court unless one of these conditions is satisfied :
(i) improper refusal of evidence by the trial Court which ought, to have been admitted, or
(ii) non-production of . evidence notwithstanding exercise of due diligence, or
(iii) requirement of the Appellate Court itself for pronouncing judgment, i.e., impossibility to pronounce judgment without the said evidence, or
(iv) any other substantial cause.
Besides these causes, reasons must be shown as to why the evidence was not produced in the trial Court. The rule is clearly not intended to enable a party to the litigation to patch up the loop-holes or pitfalls of his case. I have to observe that none of the above-noted grounds is available to the appellant for the purpose of admitting his evidence. His prayer for adducing the said additional evidence at this appellate stage deserves to be turned down.
6A. But mischief has been done. This Court was shown the photographs. The appellant has advanced extensive arguments making these two holographs as the launching pad. During this process he has completely abandoned and forgotton the substantial questions of law framed. Shri Jain, learned counsel for the appellant, has also addressed this Court on facts and contended that from the photographs it is apparent that the accommodation, in which the respondent is said to be residing by the side of the suit shop, is actually a non-residential accommodation being used by the landlord as a residential accommodation with an ulterior motive of evicting the appellant from the suit shop. Shri Jain has drawn my attention to a Single Bench judgment of this Court in the case of Moolchand 1973 Jab LJ 430 : (AIR 1973 Madh Pra 301). In Moolchand’s case it was held that the question whether a suit accommodation is a residential or non-residential accommodation, is a mixed question of law and fact. According to the ratio of Moolchand’s case (supra), if the primary purpose is residential, the accommodation will be classified as residential even if it is also used for some non-residential purpose and vice versa. The ratio is correct, but there is no dispute in the case in hand as to whether the suit shop is residential, or non-residential accommodation. The suit shop is definitely a non-residential accommodation. What Shri Jain wants is that he wants to apply Moolchand’s case’s ratio to the adjacent accommodation, which, according to him, is non-residential, though, for the present, it is being used as a residential accommodation, while this ratio is clearly meant to be applied to suit premises only and not to other accommodation. Even if we stretch, as Shri Jain wants, still it is the primary purpose of the nature of the accommodation which is important. According to the concurrent findings of fact, the alternate available accommodation is being used by the landlord for residential purpose only.
7. Shri Jain, learned counsel for the appellant, has relied on the case of Bhagwan Das, 1981 M.P.R.C.J. (Notes)80. In this Single Bench judgment of this Court, it has been held that if the nature of the accommodation is of structural design, location and the purpose of initial letting are determining factors, and the earlier use of the accommodation is not material. This ratio is meant to be applied to the suit accommodation and not to alternate accommodation. Further observation in Bhagwan Das’s case (supra) is that nothing prevents a landlord from converting his premises from residential to non-residential accommodation. This argument of Shri Jain was considered by the trial Court in paras 15 and 17 of its judgment and also by the first appellate Court in paragraphs 9, 10 and 11 of the impugned judgment. It would be relevant to observe that the fact of non-availability of an alternative accommodation in the town of Morena was pleaded and proved by the plaintiff-landlord, and the ratio of the decision of the Supreme Court in the case of Hasmat Rai 1982 MPRCJ 1 : (AIR 1981 SC 1711) is of no help to the appellant.
8. If an alternative accommodation in the possession of the landlord is being used by him as a residential accommodation, though in a business locality, and the outward appearance of the said accommodation looks like a non-residential accommodation being fitted with an iron shutter at the front side, it cannot be said to be a non-residential accommodation. It is for the landlord to use his accommodation according to his necessity in any manner he likes. Because an accommodation is situate in a business locality, because it can be put to use for non-residential purpose, because its front is fitted with iron shutters and gives the look of a shop from outside, because it is situate by the side of the main road, such an accommodation cannot be branded as a non-residential accommodation on the face of the finding of fact that the said alternative accommodation is a residential accommodation. The photographs produced by the appellant clearly show that domestic materials of daily use, and not commercial articles, are inside the alternative accommodation,
9. Shri R.D. Jain, learned counsel for the appellant, has not addressed this Court on the substantial questions of law framed, and seems to have abandoned them, but while passing I observe that according to the settled proposition of law it is for the plaintiff and the plaintiff only to prove the fact of nonavailability of non-residential alternative premises in the town and not the defendant. I further observe that the finding of the first appellate Court that there was no other reasonably suitable non-residential accommodation of the plaintiffs own in his occupation in the town of Morena, cannot be said to be erroneous. In the concurrent findings of fact there seems to be no misreading of the evidence, and both the Courts below have taken all the important circumstances into consideration.
On being persuaded by Shri Jain’s forceful advocacy, I have gone through the entire evidence — both oral and documentary — on record, but in the judgments of both the Courts below, no misreading of evidence was found. The law by now with regard to the jurisdiction of this Court under Section 100, Civil Procedure Code, is well settled.
10. It is settled that the concurrent findings of fact arrived by the Courts below cannot, in a second appeal, be interfered on the ground of erroneous findings of fact, howsoever gross the error might seem to be. But it is also true that if the High Court is satisfied that the ‘decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court. The following observations of the Supreme Court in the case of V. Ramachandra Ayyer, AIR 1963 SC 302 will be relevant to quote :
“the error or defect in the procedure to which Clause (c) of Section 100(1) refers is, as the clause clearly and umambiguously indicates, an error or defect connected with or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of facts the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure, if in dealing with questions of fact, the lower appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate Court fails to consider an issue which had been tried and found upon by the trial Court and proceeds to reverse the trial Court’s decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate Court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure. But the High Court cannot interfere with the conclusions of fact -recorded by the lower appellate Court however erroneous the said conclusions may appear to be to the High Court.”
The ultimate end of the aforesaid discussion is that this appeal has no force and is, therefore, dismissed with costs throughout. The judgment and decrees passed by the Courts below are maintained. Counsel’s fees Rs. 100/- if certified.
11. But, before parting, having full realisation of the plight of the appellant-tenant, who is being uprooted from the suit Premises by the process of law, and who will face Himalayan difficulty in finding a new suitable non-residential accommodation for his business in the town of Morena, under Section 12(6) of the Act, the defendant-tenant is, therefore, .directed that he shall hand over the vacant possession of the suit premises to the respondent-landlord on the expiry of six months from the date of this judgment. He is further directed to pay the mesne profits for the occupancy of the premises during the abovenoted period, to the respondent every month regularly and punctually, on the 10th day of each month. Failure in compliance with this direction may result in shortening the period stated hereinabove.