1N THE HIGH COURT OF JUDICATURE AT T BILASPR SECOND APPEAL NO. §3$ OF 2003 @hgjg gawk: (KSHIV'SHANKAR SONI, AGED ABOUT ‘47 /YEAR@. é RAVI' SHANKAR SONI, AGED ABOUT 45 YEARS , 3.3H01LE“ ’SHANKAR ‘ SONIQ, AGED ABOUT 37 YBARS. ALL BON 0F! SHRI MADA‘ GOPAL SONT, RESIDENT OF HALWAIT LINE,‘ BADAR BADAR 1‘ WARD‘, RIAIPUR. I /3AYANTI! BHAI, AGED ABOUT 6:2 YEARS, SON OF ’BHAI, . APPELLANTS/ PLAINTIFFs VERSUS w 1 l l \ \ \ l \ Rs.‘65‘ [V This Appeal is valued at R;540( 3 /- and Court Fee affixed RsJA J /— 1 i K E \ i ' / APPEAL IUNDER SECTION 100 OF CODE OF'CIVI T V U v ‘ / L HALWAI LINE, SADAR BAZAR RESPONDENTL DEFENDANT WARD, RAIPUR. § Civil Suit valged at Rsz4/OCf/- and Court Fee affixed ‘E \ Rs. 64 1/ (‘ T First Appeal valued at Rs§‘((5(' 3/- and Court F66 affixed Kw HIGH COURT OF JUDICATURE AT BILASPUR (C.G) ‘3 SECOND APPEAL No.588 of 2003 / Shiv Shankar Soni and others Vs. Jayanti Bhai Shri B.P. Shanna, Counsel for the appeHants 1 JUDGMENT (z 1’ . 12.2004) Sunil Kumar Sinha, J Heard on the question of admission. (2) This appeal has been filed u/s 100 of the Code of Civil Pmcedum against the Judgment and Decree dated 06.09.2003 passed in Civil Appeal No,29-A/ 2003 by the Fourth Additional Distn'et Judge, Raipur (CG) arising out of the judgment and decree dated 22.4.2003 passed m Civil Suit No.67—A/ 2001 by Xlth Civil Judge, Class-II, Raipur. The trial Court decreed the suit’of the landlords for eviction &om a residential premises (one small room) situated in the hrst door of the 4 storayed building belonging to them. The lower appellate Comt allowed the appeal of the tenant and has set aside the judgment 8r, decree passed by the trial Court. The appellants/plaintih‘s v a tenant on a monthly tenancy. The plaintin‘s filed the suit for eviction nom the aforesaid rented premises on the ground of 3 their bona nde requirement as according to the plaintiEs, there are 17 members in their family and it has become dimcult for them to accommodate all of them in the house in question and ' they have no reasonably suitable residential accommodation of their own in their occupation in the city or township of Rajpur. In fact, the plaintin's took grounds specihed in Section 12(1)(e) of the M.P. Accommodation Control Act 1961. The plaintin‘s also took a p‘lea that the rented accommodation is an old one and they are to demolish the same and thereafter a new construction is to be done which cannot be done Without'the accommodation being vacated In this manner the plaintin‘s also took the ground specmed 1n sectlon 12 (1)(g) of the Act They also took a ground u/s 12(1)(a) regardmg arrears of rent in sum of Rs.260/ agamst the tenant. (1-) The defendant] tenant med his written statement denying the contentlons of the plamttd's It was pleaded by him that the é number of family members has not been correctly stated by the g g plamtld‘s. The complete house of the plaintid‘s is a very big Ehouse and all the members can be accommodated in that house. Another rented accommodation of the plaintin‘ has also been vacated therefore some more addmonal rooms have become available to them The accommodation is m good Econdition and there is no necess1ty of reconstruction and the yplea taken about the demolition and reconstruction is false In act the plaintih‘s anyhow want to ev10t him nom the suit ‘3 u; > l I 1 i r t 1 i l I l k x r 1‘; ~ i premises, themfore, the suit has been $ed on the false and ‘3 baseless grounds. He specially pleaded that the \ ‘ § accommodation is not required bona dde by the plaintids. He also denied about the anears of rent as has been pleaded by the plaintiifs. (5) The learned trial Judge named various issues in this case and after recording evidence of the parties decreed the V suit of the plainwon all the grounds taken by them. (6) . Agaipst the aforesaid judgment and decree passed by the trial Court, the defendant (tenant) hled an appeal before the lower appellate Court. ‘ The lower appellate Court allowed the appeal and reversed the judgnent and decree passed by the trial Court. (7) Learned counsel for the‘appellant argues that the lowe ‘x appellate Court committed an ermr of law in holding that the plaintjh's were not in bona hde requirement of the suit premises and the judgment of the Court below is perverse on this point. He also argues that in fact, the accommodation has become unsafe and unnt for human habitation and is required bona- hde by the landlords for reconstruction and the same cannot i be carried out without the accommodation being vacated. He also argues that it has been established on record that the landlords are not having any other reasonably suitable (residential accommodation of their own in their occupation in the township of Raipur, therefore, the trial Court had rightly passed a decree in their favour and the reversing hndings of the lower appellate Court are perverse. Further he submits r -Lt” that the reversing mdmg in relation to arrears of rent is also 3‘1 perverse. (8) I have heani learned counsel for the appellant and have also perused the records of the two courts below and the First of all, it is important to mention this fact here as to what is the nature, . situation and size of accommodation for which the present suit V has been nled. It is undisputed that the rented accommodation is a small room and the size of the room is 12 ft. x 7.3 ft. This is clear nom the additional map tiled by the plaintin‘s which shows the situation of the accommodation and the rooms available on various floors of the entire premises of the plainn'n's. It is also admitted thatthe room is on the hrst door of the house. The map‘ also shows that the house is a mum-storied building in which there are 4 floors including the ground door and there are various rooms on each floor: Now the question is as to whether about 16-17 members of the family can be accommodated in the said house excepting one room for the tenant, or not 'P The plaintin‘s have examined only one witness in support of their case. He is Bhole Shankar (Plaintin‘ no.3 as P.W.1). He has only stated that there are 17 members in his family and all are residing in the same house, ' they are facing some dihiculty in residing in the said house. Therefore the rented room is also required by them. He has - admitted in para 5 of his evidence that their family was also residing on rent in the said premises and later on the same was purchased by them. He also stated that there were 4 judgment and decree passed by them. tenants in the house, out of them two have already vacated ‘a their respective accommodations and the possession has been received by them. Except the above, nothing has been deposed by him. 'I‘he hrst appellate Court has considered his evidence vide paras 10 & 11 of the Judgment and has reversed the finding of the tn'al Court holding that in fact, the bona nde need of the plaintiffs is not proved by them. It has also referred to the evidence of the defendant who was examined as D.W.1 . and has deposed that the house of the plaintiEs is having 4 ~ 6 rooms on'each door. The lower appellate Court has determined that in fact, the house of’the plaintids is having 14-15 rooms alongwith the attached facilities and unspecified requirement shown by them does not seemsto be bona nde. In fact, the, plaintiEs have not taken any specific pleading in relation to their requirement which can be said to he a bona nde requirement within the meaning of section 12(1)(e) of the Act. (9) The legislature has used two important words in sub- section (1)(e) of Section 12‘of the Act, these are " required” and “bonaiide” . The word “require” carries a greater meaning than the word “desire”. The distinction lies in degree of need. The word “require” as has been used by the legislature'in the aforesaid provision carries an element of “must” whereas the word “desire” does not carry any such meaning or weightage. The user of this term and placement thereof in one of the important grounds for eviction goes toshow the intention of the legislature thatthe need of the premises should be a real need and should not be a desire simplicitor that the landlord wanted a A, ~ to get his premises vacated for some reason. That is to say that W , an important element of real need always attaches with the Word “require”. In fact, this important word used in this benevolent legislation cannot be meant as a mere wish or thinking of the landlord, which may depend upon his convenience l or having some more better facilities for him or his family. V r expressions em as LE1 -6’ The user of the word “bona—nde" with the word “require " clearly goes to show that the action of the landlord should not be arbitrary or a devised method of forcifully throwing the tenant from the rented premises. . In fact, the requirement must be proved sincere, honest and genuine, then . only the same can be classihed as .a “bonahde requirement” of the landlord. The Hon’ble Apex Court in the matter of Pratap Rai Tanwani and another -Vs- Uttam Chaud and another reported in (2004i 8 SCC 490 held that “one of the grounds f0; eviction contemplated by all the legislations which otherwise generally lean heavily in favour of the tenants, is the nefed of the owner landlord to have own premises, residential or noh-msidenu'al, for his own use or his own occupation. The ployed by dinerent legislations may vary such “bonande requirement” , t i t ; l V “genuine “requires maisonably and in good faith”, and so on. Whatever be the explanation employed, the underlying legislative intent is one and that has been demonstrated in several judicial proinouncements. " (Please see para 12 of the Judgmenth i Referring to the decisions of the Apex Court in the matter of Girlabbai i —Vs- Nalin Narsi Vohra reported in [19911 3 SCC ‘u v»a 483 and Beqa Beaum —Vs- Abdul Aha'd Khan reported in (1 979) W 1 SCC 273, the apex Court further held that “the words “reasonable requirement” undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire”. (Please see para 14 of the Judgment). Referring to another decision reported in V [17999) 6‘ SCC 222 LShiv Sump Gupta V. DnMahesh Chand Gupta), the apex Court held that “the the concept of bonahde requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind i prevailing with the landlord. ' The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself—whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona tide.” (Please see para 15 of the Judgment). In the opinion of this Court, in fact, if the aforesaid tests t are applied in the present matter, the plaimilfs could not establish their bonaflde need for a very small room of 12 ft. x 7.3 ft. size and the reversing judgment and decree of the appellate Court is Well founded in this regard. -g~ (10) Coming to ~the next question of rsquirement for 'a ' reconstruction, this Court can only say that the plaintih's could not plead or establish any such ground as has becn mantioned in section 12(1)(g) of the Act. Section 12(1)(g) reads as under: (g) that the accommodation has become unsafe, or unnt for human habitation and is required bonahde by the landlord for 'carrying out repairs which cannot be carried out without the accommodation being vacated.” The pleadings in this regard are made vide para 8 of the e plaint which are as follows: "(3) wad): wwwagagwm‘vww‘? aw 1? gawmwwww rga‘WwWmé‘ IWWW as??? aris‘area WHgWWa WWW @WWWW #‘ We /" It is clear from the aforesaid paragraph that the plaintin‘s are claiming that they will demolish the construction and thereafter they will carry on new construction (reconstruction) works. This Court is surprised to see the pleadings of above nature. How a single room situated on the hrst door of a multi- storayed building can be demolished for the purposes of re- construction. It is not the case of plaintih's that they want to demolish the entire building and thereafter they want to raise certain new construction over the suit land. Though the hrst appellate Court has not dealt with the matter on this line, but it has dealt vide para 18 of the judgment holding that for the purposes of condition of the building and reconstruction, no documentary or oral evidence has been led by the plaintih's. ‘3» Eyen the certificates &om the Municipal Corporation or the ma‘p &om the Architect oi“ the other documentaly evidence which could have been produced m this regard have not been produced by them The hrst appellate Court has nghtly reversed the hndmg 1n this regard and this Court also feels that the reversion is proper. Not only this, the plaintm‘s have also not established that there'was some arrears of rent which was " calculated @ Rs.260/- payable by the defendant; The hnding inithis regard, arrived at by the trial Comt is not correct as the same 1s not based on any posmve ev1dence on record and the F' i t Appellate Court has rightly held that the plaintih‘s could not prove that the defendant has not paid arrears of rent as ‘ cla1med by the plaintih’s. (11) In the opinion of this Court there 1s no pervers1ty 1n the finding recorded by the lower appellate Court that the plamtnEs could not estabhsh that the accommodation was bonatidely required by them for res1dence of their family members or it is bona-nde required for carrying out repairs or reconstruction as the same has become unsafe or unfit for human habitation and the repairs cannot be carried out without the accommodation being vacated or the defendant was in arrears of rent. (12) This Court is also conscious about the jurisdiction to be exefrcised u/s 100 of the Code of Civil Procedure. The Hon’ble Apefx Court has laid down in the matter of Reap Singh (Dead) i g . t through LRs-Vs- Ram Singh (DeLdz through LRs reported in ’ 1 . v , (20pm 3 sec 708 that under Section 100 of the Code of Civil Proicedure, the jurisdiction of the Court to entertain a second ‘u t l i i ff\— C? qua appeal is comed only to such appeals which involve a ‘1 Substantial question of law and it does not confer any jurisdiction on the High Coult to interfere with the pure questions of fact while exercising its jurisdiction u/s 100 C.P.C. It has been further laid down by the Apex Court that the existence of substantial question of law is the sine qua non ‘for the exercise ofjlirisdiction under the amended provisions of Section 100 of the Code of Civil Procedure and unless such questions ‘aie involved, the appeals are not to be entertained (Please ‘see Thiagaraian and others Vs. Sri Ven o B. Koil and others reported in (2004) 5 scc 762). (13) Since no substantial questions of law are involved in this case, this Court is not inclined to interfere in the judgment and the decree passed by the lower appellate Court and the appeal is required to be dismissed at the admission stage itself. Accordingly, the appeal is dismissed at the admission stage with no orders as to costs, air—ma— 71 Sd/— _, Sunil Kumar Sinha i Judge "*l ‘JLlng sa