TMI Blog1981 (4) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a non-residential building of which he acquired possession from the firm of Goraldas Parmanand which accommodation was sufficient for starting the business of Chemists and Druggists shop. It was also contended that the building was not in a dilapidated condition and did not need reconstruction and repairs. The trial court recorded a finding that the building was in a dilapidated condition and reconstruction of it was essential and the landlord had sufficient funds to undertake reconstruction. On the question of personal requirement of plaintiff to start a medicine shop, the trial court recorded a finding that in the front portion of building landlord would start his business as Chemists and Druggists and the rear of the building would be utilized by him for his residence. It was further held that as the landlord's requirement was a composite one in that he wanted to reconstruct the building and then use the whole of it for himself, therefore, the tenant was not entitled to be inducted in the reconstructed building which he would have been entitled to claim under section 18 of the Madhya Pradesh Accommodation Control Act, 1961 ('Act' for short). An appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and dismissed the second appeal confirming the decree for eviction. Section 12(1)(f) under which eviction of the tenant is sought by the landlord reads as under:- that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned. In order to be able to seek eviction of a tenant under s. 12(1)(f) the landlord has not only to establish that he bona fide requires the accommodation let to the tenant for non-residential purposes for the purpose of continuing or starting his business but he must further show that the landlord has no other reasonably suitable nonresidential accommodation of his own in his occupation in the city or the town concerned. The landlord in this case seeks eviction of the tenant from a building let for non-residential purpose. He can obtain possession either for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant tenant. Section 12 starts with a non-obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of section 12. It is thus an enabling section. In order to avail of the benefit conferred by section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlord in this case seeks eviction of the tenant under section 12(1)(f). He must, therefore, establish (i) that he requires bona fide possession of a building let for non-residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirements of section 12(1)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under section 12(1)(f) the court after satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit premises being a small portion of the whole building. In the first appeal this contention is disposed of by observing that the alternative accommodation which the defendant has pleaded in his written statement is under litigation and therefore it cannot be treated as available to the plaintiff.' In the second appeal in the High Court the defendant appellant moved an application under Order VI Rule 17 for amendment of the written statement for elaborating what was already stated that not only the decree obtained by the plaintiff against the adjoining tenant of the same building namely firm of M/s. Goraldas Parmanand has become final but the plaintiff in execution of the decree way back in 1972 obtained actual possession of the whole of area occupied by that firm and that forms major portion of the whole building. This application, though, in our opinion, to be wholly superfluous in view of the pleadings hereinbefore set out and in view of the fact that the burden of proof of establishing that the landlord was not in possession of a reasonably suitable accommodation in the same town was on the plaintiff was rejected on untenable ground that the defendant appellant was gui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no where pointed out by the plaintiff that the shop of Chemists and Druggists or a medicine shop would require frontage of more than 18'. 18' frontage on a main road in a city like Bilaspur is sufficiently attractive and accommodating. The depth of the shop as given out to us being 90'; therefore landlord has now in his possession shop admeasuring 18' x 90' plus the area of 7' x 90' at the back of the suit premises being part of the same building. Would this not provide more than ample accommodation to the plaintiff to start his business as a Chemists and Druggists ? Not one word has been said that the accommodation which is already in possession of the plaintiff is neither suitable nor reasonably suitable nor sufficient for starting his business. In fact the very stand of plaintiff landlord as accepted by the High Court that some portion at the back would be utilised by landlord for residence would affirmatively establish that landlord has more than enough vacant accommodation in possession for starting his business. The difficulty which the High Court experienced was whether a tenant under a decree of eviction could invite the Court to take into co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of 'tenant' excludes from its operation is the person against whom the decree or order for eviction is made and the decree or order has become final in the sense that it is not open to further adjudication by a court or heirarachy of courts. An appeal is a continuation of suit. Therefore a tenant against whom a decree for eviction is passed by Trial Court does not lose protection if he files the appeal because if appeal is allowed the umbrella of statutory protection shields him. Therefore it is indisputable that the decree or order for eviction referred to in the definition of tenant must mean final decree or final order of eviction. Once an appeal against decree or order of eviction is preferred the appeal being a continuation of suit, landlord's need must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate court has to examine, evaluate and adjudicate the same. Otherwise the landlord would derive an unfair advantage. An illustration would clarify what we want to convey. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te authority and the appellate authority in turn remitted the case to the Trial Court for fresh disposal in accordance with certain directions. The landlord preferred a revision petition against the order of remand by the first appellate court. The High Court dismissed the action of the landlord taking cognisance of a subsequent event namely that the landlord acquired possession of a reasonable suitable non-residential building in the same town. In appeal to this Court it was seriously contended that it was improper for the High Court to take into consideration the subsequent events and this contention was negatived inter alia on the ground in the passage extracted above. Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord's requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for evic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfil namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the Trial Court and the first Appellate Court committed a manifest error apparent on the record by upholding the plaintiff's case by awarding posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upation of the accommodation or part thereof from which he is to be evicted and, if the tenant so elects, shall record the fact of the before election in the order and specify therein the date on or which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re-building, as the case may be. The courts declined to grant any relief to the tenant under section 18 on the ground that as the landlord's requirement is a composite one, the tenant is not entitled to be re- inducted in the building that may be reconstructed by the landlord after obtaining possession of the same. Now once it is held that the landlord is not entitled to possession for his residence and he has more than enough accommodation in his possession for carrying on his business, the composite requirement disappears. Landlord's case will, therefore, have to be exclusively examined in the context of section 12(1)(h). Two contentions were urged on behalf of the appellant to negative the case of the landlord in this behalf; one that the building is not in a dilapidated condition and secondly it can be repaired without vacating the premises. As all the courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first appellate court as well as the High Court, to the first appellate court to ascertain :- (i) Whether the landlord is interested in reconstructing that portion of the building which is in possession of the tenant as demised premises; (ii) Whether the landlord would be in a position to reconstruct the building in his possession without the tenant being required to vacate the demised premises; and (iii)if the first two queries are answered in favour of the landlord, what should be the appropriate directions to be given in favour of the tenant as enjoined by S. 18 ? Accordingly, this appeal is allowed and the decree of eviction made by the trial court and confirmed by the 1st appellate court and also by the High Court is set aside. The prayer of the landlord for possession under section 12(1)(f) is negatived as he is not entitled to recover possession on the ground mentioned in section 12(1)(f). The matter is remanded to the 1st Appellate Court for the limited purposes set out in the just preceding paragraph. In the circumstances of the case there will be no order as to costs. PATHAK J. This is tenant's appeal by special leave against the judgment of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t possession of the adjoining portion of the building from Goraldas Parmanand in the year 1972, and that the case should be remanded for deciding whether the accommodation acquired was reasonably suitable for starting a medicine shop, the purpose for which the plaintiff said he required the accommodation held by the defendants. The High Court rejected the application observing that it had been moved three and a half years after the event had taken place, that it was not made bona fide but was intended merely to gain time and would result in grave injustice to the plaintiff. The High Court also observed that even if the amendment was allowed it would not affect the decision of the case, because as the plaintiff's need extended to entire building his securing vacant possession of one part would not conclude the matter. It was pointed out that the plaintiff intended to reconstruct the entire portion of the building including the accommodation occupied by the defendants, as well as effect major repairs to the rear portion of the building. In place of the shop of the defendants with a frontage of 7 and a depth of 22 and the adjoining shop with a frontage of 10 and a depth of 90, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, while the second appeal was pending in the High Court the appellants applied for amendment of their written statement to include the plea that the respondent had meanwhile obtained possession from Goraldas Parmanand. The High Court declined to permit the amendment. In doing so, it seems to me that the High Court erred. It was an essential part of the appellants' defence from the outset that the portion let out to Goraldas Permanand constituted suitable alternative accommodation, and therefore they should not be ejected. It is immaterial that the amendment was sought more than three years after possession of the portion had passed to the respondent. The High Court was bound to take the fact into consideration because, as is well settled now, in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary the requirement must continue to exist on the date when the proceeding is finally disposed of either in appeal or revision, by the relevant authority. That position, to my mind, is indisputable. The High Court should have allowed the amendment. The High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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