M/s Shri Radhika Prakashan, Raipur v. Smt. Mohini Gupta

Judgment

1. Civil Procedure (for brevity 'the C P.C.') against the judgment and decree dated 19.12.2006 passed in Civil Suit No. 50-A/2002 by the 1 Additional District Judge, Raipur whereby and whereunder the plaintiffs suit has been decreed.

2. Facts of the case in brief are as under:- v (i)

The respondenVplaintiff filed a suit foreviction, arrears of rent and for damages against the appellanVdefendant. The claim in the suit was based inter alia: the plaintiff - Smt. Mohini Gupta is the owner of house No.248 situated in Samta Colony, Raipur 'the suit accommodation'). (henceforth was let out to the appellant on 30.10.1989 on a monthly rent of The suit accommodation Rs.3,000/- and for this lease deed was executed on 21.03.1990. The monthly rent was increased from January, 1994 to Rs.6,000/-. The appellant has neither paid nor tendered the whole of the arrears of rent amounting to Rs.2,16,000/- legally recoverable within two months of the date of receipt of notice of demand. V The accommodation is required bona fide by the plaintiff for (ii) the purpose of starting business of her son Sudip and she has no other reasonably suitable non-residential accommodation of her own in her occupation in the city of Raipur. (iii) Her husband is also a retired employee and plaintiff is also in bona fide need of the suit accommodation for residence of her husband and for that she has no other reasonably suitable residential accommodation of her own in her occupation in the city of Raipur. (iv) The defendant has caused substantial damages to the suit accommodation and also materially altered the same to the detriment of plaintiff's interest. ! The defendant by filing his written statement denied all (v) It was stated: plaintiff is not allegations contained in the plaint. required the suit accommodation bona fide for starting business of her son or for her residential purpose; no notice demanding arrears of rent was ever served upon him; the suit accommodation was let out for non-residential purpose; the suit accommodation consisting of plotNos. 247 and 248, area 5000 sq. ft., out ofwhich, 3000 sq. ft. is constructed area, has been letout bySmt. Mohini Gupta, wife of ^lff"^ '<3 ^^tu^ ,-^ T.P.Gupta and Gita Gupta, wifeof K.C.Gupta, for a period of 15 years on a monthly rent of Rs.3000/- and not by Smt. Mohini Gupta alone; tenancy cannot be splitted; vide agreement dated 21.3.1990, the suit accommodation area 5000 sq. ft. was leased out to the defendant for a period of 15 years by the plaintiff Smt. Mohini Gupta and Smt. Gita Gupta and the suit filed by the plaintiff that too for a portion of the suit property is not maintainable.

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4. Parties adduced their evidence. The learned trial Court decreed the plaintiffs suit. \--B•^

5. Vide judgment dated 8.8.2011, this Court framed two additional issues, which are as under: i) ii) Whether the suit filed before expiry of 15 years lease period is premature and is liable to be dismissed? Whether the suit accommodation consisting of plot including 3000 sq.ft. No.247 and 248 area 5000 sq.ft. constructed area has been let out bySmt. Mohini Gupta and Smt. Gita Gupta and suit filed by Smt. Mohini Gupta alone for part of suit accommodation, i.e. 3000 sq.ft. not maintainable? After framing the above two additional issues, this Court referred the matter to the trial Court for trial of above two issues with ir-iii"<": ;'.t:i's'i»s' |l'"ll--"ai-E<a:'^s i i8 'Ww^ 1 j ^.^'^&^t'"' a direction to take additional evidence required for decision of above framed issues after permitting parties to file additional documents i.e. demand notices sent by the respondent to the appellant and the lease deed 21.3.1990 and shall return the evidence to this Court together with its finding thereupon and reasons therefor.

6. In compliance of the above order, the trial Court recorded the evidence of the parties on the additional issues and had returned the record together with its finding thereupon and reasons therefor.

7. Shri Shree Kumar Agrawal, learned Senior Advocate along with Shri Manoj Paranjpe for the appellant / defendant submits: the suit accommodation was given on lease to the appellant for a period of 15 years by way of registered lease deed, therefore, the suit filed before completion of above period is premature and liable to be ^, dismissed; as per the notice given by the respondent, Smt. Mohini Gupta and Smt. Gita Gupta were landlords whereas the suit which has been filed only by Smt. Mohini Gupta that too with regard to pari: of suit property i.e. 3000 sq. ft. is not maintainable as tenancy cannot be splitted; premises was let out for non-residential purpose cannot be got vacated for residential purpose; the trial Court has decreed the suit holding respondeht is in bona fide need of the suit accommodation for non-residential purpose is without any basis; the decree passed underSecti^gils2 (1) (a) ofthe C.G. Accommodation Control Act, 1961 (for short 'the Act') is bad; the suit filed for a portion of the suitaccommoclaHsn is not maintainable and eviction decree which was passed holding, appellant has materially altered the suit accommodationwithout written consent and permission of the plaintiff is perverse.

8. On the other hand, Shri H.S.Patel, learned counsel appearing the respondent supported the judgment and decree and submitted: the judgment and decree of the trial Court is based on properappreciation ofevidence adduced in this case and needs no interference. 41 ^..

9. I have heard learned counsel appearing for the parties and perused the record including judgment and decree and the finding recorded by the trial Court on the above two additional issues framed by this Court.

10. The core issues, therefore, arise for determination of Court are: i) ii) Whether the suit filed before expiry of 15 years lease period is premature and is liable to be dismissed? Whether the suit accommodation consisting of plot induding 3000 sq.ft. No.247 and 248 area 5000 sq.ft. constructed area has Ibeen let out by Smt. Mohini Gupta and Smt. Gita Gupta and suit filed by Smt. Mohini Gupta alone for part of suit acdommodation, i.e. 3000 sq.ft. not maintainable? iii) Whether the plaintiff has successfully made out a case appellant/tenant from the evicting accommodation on one or more of the grounds as enumerated in Section 12 ofthe Act? -j-sy Bff"~'"f" "'^ ^ ^ Issue (i):

11. As per registered lease deed dated 21 March, 1990 (Ex.P.10) and amended lease deed dated 29' January, 1991 (Ex.P.11), the respondent - Smt. Mohini Gupta had let out the suit accommodation situated at Plot No.248, Samta Colony, Raipur, having plot area of 4000 sq.ft. with the building constructed thereupon about 3000 sq.ft. at a monthly rent of Rs.3,000/- w.e.f. 10th October, 1989 for a period of 15 years. Clause II (a) of the lease deed (Ex. P.10) reads as under: "(II) And the lessor hereby covenants with the as follows: lessee a) That the lessee shall punctually pay the rent and observe and perform the covenants on the part of the lessee shall quietly enjoy the demised premises during the said term without interruption by the lessor or any person lawfullyclaiming under or intrust or the lessor." \.' A bare perusal of the above clause would reveal,lease period was subject to prompt and punctual payment of rent on the part of lessee/tenant.

12. Ample evidence available.on record including two dishonoured cheques (Ex.P.2 and Ex.P.4) would reveal, the appellant had committed successive defaults in payment of rent and was not paying rent regularly. It is also not out of place to mention here that the lease period has already expired more than two years prior to passing of the judgment by the trial Court.

13. The Supreme Court in the case of Laxmidas Bapudas Darbarv. Rudrawa has held in para - 18 of its judgment as under: "18. The effect of the non-obstante Clause contained under Section 21 of the Karnataka Rent Act on the fixed term contractual lease may be explained as follows: <ft '^ (i) (ii) (iii) (iv) than or the Act shall On expiry of period of the fixed term lease, the tenant would be liable for eviction only on the grounds as enumerated in Clauses (a) to (p) of sub-section (1) of Section 21 of the Act. Any ground contained in the agreement of lease in addition to the grounds enumerated in Clauses (a) to (p) of sub-section (1) of Section 21 of remain inoperative. Proceedings for eviction of a tenant under a fixed term contractual lease can be initiated during subsistence or currency of the lease only on a ground as may be enumerated in Clauses (a) to (p) of sub-section (1) of Section 21 of the Act and it is also provided as one of the grounds for forfeiture of the lease rights in the lease deed, not otherwise. The period of fixed term lease is ensured and remains protected except in the case indicated in preceding paragraph."

14. By applying the ratio of law laid down by the Supreme Court in the aforesaid case in the facts and circumstances of the present case, is crystal clear that the fixed term lease granted by the respondent in appellant's favour was subject to prompt and punctual payment of rent, in which, the appellant utterly failed, inasmuch as, he successively made defaults in payment of rent. Therefore, in the aforesaid circumstances, it is not correct to say that the suit filed by the respondent, being premature, was liable to be dismissed and the '(2001) 7 SCC 409 &1 judgment of the Supreme Court relied upon by the appellant is of no help to him.

15. Moreover, the period of lease has already expired before passing of the decree, i.e., in the year 2004 and it would not be equitable to non-suit the respondent on the above ground, eight years after the expiry of lease period. ^ \_,Ip" Issue (ii)

16. The leasedeeds (Ex.P.10 and Ex.P.11) are not in dispute. As per the above lease deeds, the landlord is Smt. Mohini Gupta, the appellant is tenant and the plot number is 248. The suit has been filed claiming eviction from the same suit accommodation, as described in the lease deed. As per letter Ex.P.7, the two months rent amounting to Rs.12,000/- has been sent by the appellant by Draft No. 292536, dated 11.08.1995 to respondent - Smt. Mohini Gupta. True, the notices Ex.D.2 and D.3 were given by the respondent - Smt. Mohini Gupta as well as Smt. Gita Gupta for eviction of the appellant from the suit accommodation comprising of plot No.248 and part of 247. But as the lease deed with regard to plot No.248 has been executed by Smt. Mohini Gupta and not by Smt. Gita Gupta and Smt. Mohini Gupta is also not claiming eviction of plot No.247 and the area of suit accommodation is same, as mentioned in the lease deeds Ex.P.10 and Ex.P.11, therefore, cannot be said suit accommodation consisting of plot No.247 and 248 areaSOOO sq.ft. l^t.out by that Smt. Mohini Guptaand Smt. Gita w :,i^ '^ ^..SI;K- -€. 'a :'%. ''!i*6ss8i!!!i'!' ^•HCS" ^J 10 Gupta and the suit filed by Smt. Mohini Gupta for part of the suit accommodation, i.e., 3000 sq.ft. is not maintainable. In such situation, there is no question of splitting of pendency and thus the above contention raised by the appellant is also devoid of merit. Issue (iiil

17. Coming to this question, the trial Court has passed the decree underSection 12 (1) (a), 12 (1) (e), 12 (1) (f), 12 (1) (k) and 12 (1) /-' ^ (m) of the Act.

18. Indisputably, the trial Court, vide order dated 28.11.2000 had fixed the interim rent as Rs.6,000/- per month, which was being regularly deposited by the appellant and respondent's application filed under Section 13 (6) of the Act was earlier impliedly rejected vide order dated 16.02.2004 and later on also rejected vide order dated 13.01.2005. Under Section 12 (3) of the Act, no order for ••C"v C-- eviction of a tenant shall be made on the ground specified in Section 12 (1) (a) of the Act, if the tenant makes payment or deposit, as required by Section 13 of the Act. Here, in the instant case, appellant has deposited the rent, as required by Section 1 3 of the Act, therefore, the decreepassed under Section 12 (1) (a) ofthe Act is not sustainable in law. The decree passed by the trial Court under Section 12 (1) (k) and 12 (1) (m) of the Act, on the face, is without there being evidence and the same is also not sustainable in law. ....3S%:N i^.ff-^^''^' "^Wff"' ^Aw'S- 11

19. It is trite law, in a case where the premises were let out for a non-residential purpose, the landlord is not entitled to get eviction of the same for his requirements of residential purpose (please see Laxman Prasadv. Sridev Janakiraman).

20. However, the plaintiff has established her need under Section 12 (1)(f) of the Act, i.e., for the business of her son - Sudip Gupta. ^ The defence of the appellant was that plaintiffs son - Sudip Gupta has been in regular and permanent employment and the need for his business is not genuine and bona fide. There is nothing in the evidence of the appellant suggestive of the fact that the plaintiff's son is employed somewhere else in a permanent job and the need is not bona fide. The defendant did not enter into witness box. Chandrakant Daund, examined by the appellant as D.W.1, has stated that he does not know in which Electronic Company of Bangalore, the plaintiffs son Sudip Gupta is working nor is in l-/ possession of any document with regard to employment of Sudip Gupta.

21. It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the mattet (please see Ragavendra Kumar v. Firm Prem Machinery & Co. ). In the instant case, respondent/landlord has filed the suit for.eviction of the appellant as the suit accommodation is required for starting of business of her 2 1973 MPLJ 842 (DB) 3 (2000) 1 SCC 679 vi%^. •" '* 1;S£ % 1 lf"""'^ ;.<!,ya!-!' <^ is. 12 v son and for that purpose she has no reasonably suitable accommodation in the concerned city. In view of above, the trial Court has rightly passed the decree on the ground of 12 (1)(f) ofthe Act and it cannot be found faultwith.

22. For the foregoing, the trial Court has not committed any error in granting decree of eviction in favour of the respondent as although the respondent is not entitled for eviction decree on the ground of 12 (1) (a), 12 (1) (e), 12 (1) (k) and 12 (1) (m) of the Act but this will not affect the ultimate result as the respondent is entitled for eviction decree on the ground of 12(1)(f) oftheAct.

23. In view of above, the appeal fails and is hereby dismissed.

24. No order as to costs.

25. A decree be drawn accordingly. Sd/- N.K. Agrawal Judge