^•/'^ ^^'^r^ INTHEfflGHCOURTOKiEHBATTKiGARtt AT-BILASPBR Second Apiieal No m^/ *^y^ -yi"\Y:ry w^ ^y -^yx. w t?f' AEPELLANT: RBSPONDENT: , Suitvalued atRS.24,000.00 CourtfeeaffixedRS.2,800.00 First appealvalued Rs, 25,000.00 CQurtfeeaffixedRS./2,800.00 SeodndappealvaluedRs. 4,800.00 Court fee affixed RS. 48CFQO ^Smt. Sarla Dievi Gypfa; aged^O years, wife of Shri Ramesh Chalidra Guptg, resident of ; Sarkahda, Bilaspur, police station Sai'kanda, post 6ffice,tehsil &; districtBilaspur (C.G.) (Defendanl/Responileht/tenant) YERSU& :: :. •"1:-1 •]•.••'-•'.. • J <^ ^J.,)-Smt. TaraDeyi Dubey, aged 66 years.wife f^ • bflate Shri Gauri Shanker ^ubey, resident^ of Sarkanda, Bilaspur, police statibn Sarkanda, post ofBce, t^hsil & distnct Bilaspur (C.G.) i^ , 1-1 / " ' ' •^ ;•'..; ..^^'^•' , (Plaintiff/Appellant/landlady) SECOND APPEAL UNBER SKCTIQN 100 OF TWB CODEOFCrvIL^ QCI;DlJRE,1908, jL'y ^-) ^ HIGH &OURTOFGHHATTiSGARH AT BILASPUR Sinaie Bench : 1-lon'bleShri Dilip RaosahebDeshmukh, J. Second ApDeal No.420 of 2006 Smt. Sarla Devi Gupta versus Smt. Tara Devi Dubey JUDGMENT l^_t... SdA \ DiUp Raosaheb Deshmukh Judge IBifl ^ ^. ^ y^ \^^^ ^ ^ Q. HIGH COURt OFCHHATTISGARH AT BILASPUR Sinale Bench : Hoh'ble ShriDiliD Raosaheb Deshmykh, J. SecondARDealNo.420of2006 Smt. Sarla Devi Gupta, aged 70 years, wife of Shri Ramesh Chandra Gupta, resident of Sarkanda, Bilaspur, Police Station Sarkanda, Post Office, Tahsil & DistrictBitaspur(C.G.) (DefendanWespondenVtenant) versus Respondent Smt. Tara Devi Dubey, aged 66 years, wife of i late Shri Gauri Shanker Dubey, resident of Sarkanda,Bilaspyr,Police Station Sarkanda, Post Office, Tahsil & DistrictBilaspur(C.G.> (Plainiiff/AppeltanWandlady) Second ApDeal under Section 100 of the Code of Givjl Procedure, 1908 Present : Appeilant by Shri Somnath Verma, learned counsel. Respondent by Shri Sanjay K. Agrawat, learned counsel. JUDGMENT (Delivered on this S'u< dav of July, 2007) This is defendant's second appeat. She is aggrieved by the reversal ofthe judgmentand decreepassed in Civil Suit No.39-A/2002 dated 12-08-2004 dismisSingtheplaintiff'ssuitforevictionbytheVlllth Additional District Judge, Fast Track Court, Bilaspur vide judgment dated 22-08-2006 delivered in CivilAppeal No.l-A/2005. (2) Admittedly.ybe appeliant/defendant is a tenant in the suit accommodation. ^ p) y -^ (3) The respondent/plaintiff instituted a suit on 15-10-1998 for eyiction ofthe appellant/defendahtfromthe suit premises pleading that she hadletapotionofthehouse-cum-shoptotheappellant/defendant on rent from 01-04-1997. Itwas pteadedthat she required.the accommodation for own hpuse and foribona ffctereason also. Noother house or shop was ava?labie to the piaintiff within the limits of the Municipal Corporation, Bilaspur. Description of the accommodation let out to the appetlanVdefendant was shown in Schedule 'A' to the plaint. !t was mentioned that the appellanVdefendant was rynning "Gupta JalpanGrih"'\n the acGommodation. (4) On 01-10-2001, the respondent/piaintiff mbved an appiication under Order SRule 17 of fhe Code of Civil Proeedure for amendment not only in the plaint allegatiQns but also to completely amend the description of the accomn'iodation giyen in Scheduie 'A'. Whereas, the Schedule'A' filedoriginally with the plaint showed the area of the accommodation shown as house-cum-shop as 35 Feet x 30 Feet the amended Schedule 'A' showed the description of the accommodation let outas 18 Feet x 17.6 Feet. The size of the suit accommodation was thus reduced to half. The accommodation was described as "the suit shop" in the schedule. in para 1, at two places, by the amendment, the aecommddation described was as "the suit shop"only. It was pleaded that as perthe amendedschedule, onlythe suit shop had failento the share of the respondent/plaintiff. In paragraphs 1 and 5 also, the accommodation was solely described'as the suit shop. It was also mentioned thatsince the appellant/defendant had her own house in the nearby vicinHy, she didnot require the suit shop any more. <f 'f^ (5) The appellant/defehdant denied the pleadings in toto and pleaded that in factshe had taken an open piece of land on rent of Rs.40/- per month from Gayri Shanker Dubey, the husband of the respondentfpiaintiff in 1972 and had coostructed a room at his own expense. The rent was gradualiy increased upto Rs.400^- per month. The appellant/defendant had filed the suit solely with an intention of letting outthe accommodation ata higher rent. The respondenVplaintiff had about seven other shops in her possession and did not require the suit accommodation fcona ffcte. (6) The learned IXth Civil Judge Class-11, Bilaspur dismissed thesuit while recording a finding that the respondent/plaintiff had faiied to prove bona ffcte requirement of residence for the suit shop. In appeal, the learned-VSIIth Additiona] District Judge, Bilaspur, withoutapplication of judicial mind to the pleadings as alsoto the amendment introduced by the piaintiffon 01-10-2001 while reversing the judgment and decree passed by the lower Court, granted a decree for eviction of the appellant/defendant under Section 12(1)(e) of the Chhattisgarh Accommodation Gontrol Act, 1961 (henceforth 'the Act'), i.e.,on the ground of fcona ficfe requirement for residence. (7) This appeal was admitted on the foliowing substantial question of law:- 'Whether the 1st Appellate Court is justified in reversing the judgment and decree dated 12.8.2004 in civil suit No.39-A/2002 passed by the 9th Civil Judge, Class-11, BilaSpur and granting the relief of eviction of the tenant from an accommoclation let oui primarily for composite purpose of residence as also fornon residence on the ground 6f bonafide requirement for residence oftiie landlord?" ^ ^. ,y (8) Shri Somnath Verma, learned counsel for the appellant aigued that the suit accommodation was predominantly let for non-residential purpose. The plaintiff had speciflcally deposed that she required the accommodationoniyforherresidence.Therefore,adecreeforeyiction of the appellant/defendant - tenant under Section 12(1)(e) of the Act could npt begrantedundertaw. Itwas also urged thatthe pieadings of the respondent/plaintiff did not specifically show the purpose for which the suit accommodation was let out, and from the deseription of the aceommodation being used by the appellantyefendant as "Gupia Ja/pan Grfh"and the admission ofthe respbndent/plaintiff in para 20 of her testimony, it was crystal ctear that the accommodation in question was predominantiy let oyt for rion-residential purpose. Reliance was placed on ShabirAhmaclvs. Sham Lal and anather, MIR2Q02SC 1036, Dr. Gopai DasVwma vs. Dr. S.K.BhardwaJ and Wother, AIR 1963 SC 337 and MissS.Sanyalys. Gian Cftanc^ AIR 1968 SC438 (9) On the otlier hand; Shri Sanjay K. Agrawal, learned counsel appearingon behalfoftherespondent/piaintiffarguedinsupportofthe impugned judgment. He placed relianee on Jagjit Kumar vs. Jagtffeftcftandra, 1982 JLJ 319, wherein it was held by a Division Bench of the Madbya Pradesh hiigh Court that in a case of composite tenancy jf the landiord proyes fiona ffcfe requirement Qf the non- residential part of the accommodation, a decree for eviction of th< 1 ;-i. ^f tenant from the entire premises including the residential portjon could bepassed. •^' ^L1 .A (10) Having heard the rival contentions, 1 have perused the record minutely. (11) Section2(a) of theAct defines"accommodati0n"asunder:- "2. Definitions. - In this Act, unless the context otherwjse requires, - (a) "accommodation" means any building or part of a building, whether residential or non- residential and includes, - (i) any land which is not being used for agripultural purposes; (ii) garden, grounds, garages and out- houses, if any, appurtenant to such building or part ofthe building; any fittings affixed to such buiiding pr part of a building for the more beneficial enjoyment thereof; (iv) any furnituresupplied by the landlord for use in such building or partof building;" (12) Chapter III of the Act deals wjfh controi of eviction of tenants. Section 12oftheActprovidesthegroundonwhich asuitcould befiied against the tenant for his eviction on any one or more ofthe grounds mentioned therein. Clauses (e) and ® ofsub-section (1) ofSectioR 12 oftheAct are as under:- "12. Restriction pn eviction of tenants. - (1) Notwithstanding anything to the contrarycontained, <7 in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely: (a) xxxxx (b) xxxxx (c) xxxxx (d) xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx (e) that the accommodation let for residential purposesis required bonafide by the landlord for occupationas a residence for himself or for any member of his family, if he is the owner thersof, or for any person for whose benefit the accommodation is held and that the landlord 6r such person has no other reasonably suitable residential accommodation of his own in his occupation in thecity or town concemed; (f) that the accommodation let for non- residential purposes is required bonafide by the landiord for the purpose of continuing or starting his businessor 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 heid and thatthe landlord or such person has no other reasonably suitable non- residential accommodation of his own in his oecupation in the city or town concerned;" (13) Besides "residential or non-residentiai", the definition of "accommodation" does not include "for any other purpose" as in the case of Dr. Gopal Das Verma vs. Dr. S.K.Bhardwaj and another (supra), which relates to Delhi and Ajmer Rent Control Act, wherein the definition of theword "premises" in Section 2(g) includes"for anyotlaer purpose" also besides residehce and commerce. tt is, therefore,^ dBS'—- $5 r' necessary to first ascertain the predominant purpose for which the accommodation was let out. It is also very importantto note that the nature ofthe accommodatibn prior to being let out iswholly immaterial and the purpose for which it was letout isoniy to be looked into. The words"letforresidentialpurpose"appearinginclause(e) ofsub-section (1) of Section 12 of the Act and "let for non-residential purpose" appearing in clause (f) ofsub-section (1) of Sectiori 12 of the Actliave no room for any doubtthat the pyrpose for which the aceommodation vras letoutwouid determine theground ayailable t6 the tandlord under Section 12(1) ofthe Act. An gcc0mmodation,which,may bea house- cum-shop, could be let out solely for residence or fornon-residehce or for both. The plaintiff is required to specifically aver and prove the purpose for which theaccommodation was let out. The pleadings in the piaintdonQtshowanywherethepurposeforwhichtHeaccommodation was let out to the appellant/defendant. Schedute 'A' originally annexed to the plaint showed that the appellanVdefendant was running "Gupte Jalpan Grift" in the suitaGcommodation. it is very surprising to note that the learhed lower appellate court failed to notice that Uie respondenVplaintiff had specificaily pieaded in para 1 that she had let out "a portion of the" {emDhasis supplied bv me) house-cum-shop to the appellant/defenclant, but did not specifically mention which portion was let out to' the appeilant/defendant.i.e., whether residential or non- residentia!. It is also equally surprising that both the Courts below did not notice thatthe amehded Dleadinas ctearlv reveal that after Dartition oniy that portion of the accomm.odation which was shown in the, amended Schedule 'A' had fallen to the share of the; respondenBplaintiff. The description and Size of thjs araencled portiQn | of the accommpdation is materially different from the description of the j c^ s^ ^ accommodatiQn given originatly in Schedule 'A'. Both the Gourts below also failed to notice that the respondent/plaintiff by amending the plaint had changed the description of the accommodation from "house-cum- shop" to "suit shop only" ahd had specifically pleaded in para 3 that'only the suit shop had fallen to the share ofthe respondent/plaintiff. The respondent/plaintiff, in para 20 of her testimony, had stated that the appellant/defendant was running a hotel in the suit accommodation. Hertestimony that the appellanVdefendantwas atso residing in thesuit accommodation was rendered unworthy of credit by the unrebutted testimoiiy of Rajesh Gupta, D.W.-1 and Durga Prasad Kashyap, D.W.-2. In this view ofthe matter, it is crystal clear from the pleadings, particularly the amendment in the plaint and Schedule 'A' that the accommodation let outto the appellanVdefendant was solely for noh- residential purpose, i.e., for running "Gupte Jalpan Grih": That being , d^C so.the legal position is crystal clear begat^eanaccommodation let out solely for non-residential purpose eould not be got evicted on the ground of bona fide requirement for residence. The learned lower appellate Court committed a material error ih ignoring the pleadings and the amended piaint and schedute map and was whoily unjustified in granting a decree for eviction of the appellant/defendant under Seetion 12(1)(e) of the Act. The impugned judgment and decree, being wholly Gontraryto law, is iiable to be set aside. (14) It is true that an accommodation could be let out for Tesidential as well as for non-residential purpose as in the case of a doubled storied building where the ground floor may be let out for a shop whereas the first floor may be let out for residence. In sueh aease, for eviction of the tenant under Section 12(1 )(e) and (0 of the Aet, th% (b '•.•• •' :(: .': plaintiff would be required to plead and prove that the accommodation is required bonaSde notonly for her residence in first floor but also for non-residential purpose in the ground floor. In a different situation like the present one, where the house is merely a"Khapra Posh (Tiled Accommodation)" and predominantly letout for non-residential purpose, i.e., for runninga hotet, in such a case, ifonly a small portion of the accommodation is being used by the tenant for residence also, the accommodation being predominantly non-residential in nature, the plaintiffwould be required to aver and prove bonafide requirement for a non-residential pyrpose. On such pleading and proof, in the facts and circumstehcesof each case, the plaintiff may be entitted to a decree for eviction of the tenant from the entire premises even though a smali portion of the same house was being utilized for residence aiso. Vice versa in a case where the accommodation is fet out predominantly for the purpose of residence andonty a small portion is being utilized for non-residentiat purpose like a Pan-Shop or a Tea-Shop or a small provision store, then upon pleading and proof of bona fide requirement for residential purpose, the plaintiff, inthe facts and ciroumstances of such case, may be entitled to a decree for eviction of the tenant Torm the accommodation atthough a smalt portion was being used for non- residential purpose. This is preciselythe law as has been hetd in Jagjit Kumar.vs. JagdfeAchandra (supra) by a Division Bench pfthe Hon'ble High Court of Madhya Pradesh. The facts pleaded, evidenee led relating to size ofthe accommpdatioft primarily let out for a particular purpose and thesize ofthe portion ysed for a purpose otherthan the purpose for which the accommodationwas let out wouid have to Be considered. .".^^ ^¥ 10 ^•' (15) The case law relied on by leamed counsel for the respondent/plaintiff does not apply to the present case, since in view of the amendment to the plaint and Scheduie 'A'.the accommodation let outto the appellant/defendantand in his possession was showh to bea suit shOp.i.e., a non-rgsiciential accommodation, which hadfaiien to the share ofthe respondent/piaintiff, The evidence led bythe plai.ntiffto show that a part of the accommodation was being used for residenee also is wholly ynworthy of credit. Therefore, such an accommodation could not be got evicted on the ground 6f bona ffcfe requirement for residence of the respondenVplaintifF. The lower apRellate Court was thuswholly unjustified and aetedcontraryto law in granting a decreefor evietioh underSection 12(1)(e)oftheAct. 1; & t'A (16) In the resylt, the appeal is allowed. The substantial question of law is answered in hegative jn favour of the appellanVdefendant and against the respondent/plaintiff. The impugned judgment and deeree passed bythe lowerappe!!ate Court in Civil Appeal No.l-A/2005 is set aside. In the faicts and circumstances of the ease, there shaii be no orderastocosts. Adecree be drawn accprdingly. '*-srBwtt |Gi<pal