HIGHCOURTOFCHfiAT'IISGARH.BILASPUR SECONSAiq'EALNo. 186 OF 2008 APPELLANTS DEFENDANTS RESBONDBNTS PLAINTIFFS Smt. Kiran Agrawal and others Versus Smt. Heera Bai and others ^y JUDGMENT SlosS{or^-6-2QQ9 .'"?> t .::. ..: :'11~-'/1^. ;^^" asie m^ HIGHeOUR'ttQi''<:;HH^["FISGARH,BILASPUR SEG!ONi^APPEALNo.li860P2008 APPEI.IANTS DEEEl'IDANTS SE^e@aa'EfEtfs& PE^NfIFPS !® ^ [-y~ 1, :2. 3. ::1. 2. 3. 4. 5. 6. 7. Smt. -Kiran Agrawal, W/o late : Shri Kishan Agrawal, aged about 45 years;" • : . :• - , " Vivek .ftgEawal, S/o Late Shri Kishan, Agrawal,,aged afcio'a.t 18 years Ku... Reeina .A^-awal, D/o Late Stin KisKan^grswal^aged about 19 years; AppelMfft,? 1: to 3 ,are the resident Ganja ©ho'wl!: Mynshi Gali, Tehsil ;and Distt.:Raiga!E-h.(GG). • Smt. Seema [: %grawal, W^o Shri Ka^Iesii,,'Agr^al, fagecl^^' a^ yeais; ;,. S^e '. ^h^ai-^ur,,'^. 'TeI^ :CThargKada, ©i^teyRaigaj^'%©), • , .Sm'b..' ?Meera •Bai, .W^o' late E^ntajmaru Sarai^ age^ ffi .years.'. ; :• . ;; ., . ,, KM..Jugnu,M/olateShriChmta^ Saraf;'ageMal3C)i.:tt:18years Kaliya, s/o ; late Shri CKin.taniani Sai-af^ aged about 16 years; Ku. Tuleshwari, D/6 lafe Shri Chinfamai'u Saraf; aged about 12 •years ;• .;.: :. ':, ; :'' ' ,. , : Ku. Sal-tQdra, D/o Late Shri :GKihtam.ani Saraf, aged dbiout 10 .years;'- '; :;; , : . , : • Raja, S/o'Late Shri ehintamaiti Saraf, aged about: 6 years Ku. Durga, D/6 Late Sliri. Chinfamani Saraiii aged^about 2, ^ears; Respondent.No. 2 to 7 are the minors hencei:ftoo'u^ tKeir naMral^^^ i.e. rnofheE Shri.ChulfaInaniSa.raf ' ; All residenfs 6£ Sonar Para, Gaiija Chowk, Raigarh, Tahsil and : Distt. Ra.igarh(GG) Sushri Sharmila Sirighai,'Ady.fQir'the;appellants. SB^HON^] «HIU STl(^il!B^.3^Sl^^ ''SMGii^WffM^ :t2S-6-20©^); ^ Heard on admission. 2. The instant appeal is directed against the judgmeri*^ari'd decree dated 5-4-2008 passed in CivilAppeal No. 29-A/1998 by 3Td Additional District Judge (FTC), Raigarh arising out of the judgment and decree dated 29-7-2005 passed in Civil Suit No. 12-A/1997 by Civil Judge Class I, Raigarh, whereby learned 1st appellate Court affirn-ied the eviction decree passed against the appellants. 3. The appellants are legal representatives of original defendant Kishan Agrawal and the respondents are legal representatives of original defendant Chintaraani Sharaf. Both have died during pendency of first appeal and substituted in place of original plaintiff and defendant. 4. Brief facts of the case are that a suit for eviction and arrears of rent was filed by the plaintiff against the defendant on the ground of Section 12(l)(f) of C.G. Accommodation Control Act (briefly the Act). As per the plaint averment, the plaintiff let out the suit house to the defendant vide agreement dated 8-2- 1996 for 11 months on a monthly rent of Rs. 800/- and the plaintiff bonafidely needs the same for his business and for that, the plaintiff did not have any alternative suitable accommodation in Raigarh city. By sending a notice dated 6-12- 96, the plaintiff requested the defendant to vacate the suit house and to give its vacant possession to the plaintiffby 8-1-97 but by sending its reply, the defendant refused to vacate the suit house, therefore, the instant suit was filed by the plaintiff. 5. The defendant filed his written statement in the case and pleaded that his other brother Billu Mangal is also owner of the suit house. Execution of agreement dated 8-2-96 was not denied by him. He further pleaded that the suit house is not bonafidely required for the purpose of plaintiff's business but the suit has been filed with oblique motive to enhance rent and, therefore, the suit is liable to be dismissed. He also pleaded that a front \ room of the house of the plaintiff is suitable for the alleged •"»>&.. business of the plaintiff and therefore, a suitable altenl(itive, accommodation being available to the plaintiff, the plaintiff is not entitled to get any decree under Section 12(l)(f) of the Act and the suit is liable to be dismissed. 6. The trial Court after appreciating the pleadings of the parties, evidence led oral as well as docum.entary held that the plaintiffs need regarding the suit house is genuine and decreed fhe suit in favour of the plaintiff. The judgment and decree of the trial Court was assailed before the first appellate Court mainly on the following grounds:- i. The trigj Court erred in holding that the suit house is genuinely required by the plaintiff for his business; ii. The trial Court erred in not holding that the plaintiff is having suitable alternative accommodation in Raigarh city and, therefore, the decree under Section 12(l)(f) of the Act cannot be passed in favour of the plaintiff; iii. The plaintiff being not the sole owner of the suit property, the suit ought to have been dismissed by the trial Court; iv. The plaintiff's brother Billu Mangal is a necessary party of the suit and, therefore, the suit is bad forjon-joinder of the necessary party. v. The requirement or need of the plaintiff /landlord has come to an end on his death during pendency of appeal and, therefore, the civil suit filed by him ought to have been dismissed as his legal heirs/appellants could not have continued the suit which was based on personal bonafide need ofthe deceased plaintiff/landlord. 7. The first appellate Court after appreciating the arguments putforth by the appellants dismissed the first appeal. Hence this -appeal. ^ sjjpure^d guiuunj JQJ uoT^pouiiuoooB SAI^UJS^^B 3^qi3^Tns 13 ST asnoq ^'epuspisaj jo i-red 'e ST qoiqA uiooj aq^ t'Bqi pres aq ^oucreo ;T 'sjojsjsq^ 'pue asnoq sq^ UT ja^ue o^ A^M A]:uo sq^ si mooj pres sq^ TBW P3WU-IP'B CISI'B 3H '^iiiisp{o§jo ?[J:OM 3Lp pip J3A3U jjpureid 9vft vav^ uopBUTU-rexa-ssojo Suunp ^uamai-B^s aq: jo gg Bjed UT ps^iuipB SBA ^T 'jjpure^d aq^ jo SJO^SSOLTB 3Vft &q doqs q^iiusp{o§ SB pssn janjea OSIB SBM pire pBoj ureui 3L[; JO ^UOJJ UI ST qoiqM 'ssnoq sjjpure{d jo 3zis <OTXiOT JO LHOOJ ^UOJJ V ST JJT^UTBld 31? O^ aiq'G^TBA'B UOT^'BpOUILUOOO'B 3AI1BIU311B aq^ t'eq^ TT pire QT ^-red ui pa^.'B^s SBAV ^1 ''Q'd'O jo -|7 3\rcQ IIIAX -tap-iO -ispun ^JABpijjB jo UJJQJ aqq. ui j:psujii( ^u'epusjsp pss^sosp sq^ A!q p3{ souspTAS sqi. ui 'psujsauoa ST 'uopBpouiiuoooB aApBujs^ jo uopssnb sq^ s'e JBJ sy " T T •]T33ddl3 pUOOSS JO 3§P^S 3L(^ ^3 33U3J3JJ3^UT SUT^O A^isjSAjad of spBS^ qoiqM A^i^eSa^T Xire pug ^ou op i pire pje§3j STqi UT sspjed sqi A:q p3\ souspiAa sqt pB3j A'nnjajeo 3A'eq i •sai^jed sq^ A:q pa^ Are^usuinoop s^ yaw. sia {BJO aouspiAS 'sepjBd 3Vft JO S§UIp'B9{d JO UOt^BpSjddB uo pssBq si jjpureid av^ jo paau suinuag §uipje§3jMopq s^jnoQ avp. vftoq jo Suipuy aqj^ •Q'[ -:spunoj§guiMonoj sq^ uo ^usui ou SBq {BsddB ^UB^SUT sq^ 'uoiuido psjspisuoo A'ui UT 'uopoadsmnojp ^souji.n q:TM P-I033J sq^ pasnjad SuiA^q ptre s^Lre{pdd'e SL;^. joj psunoo pauj^ai ^q pasrej suopua^uoo av^ p-re3L[ SUIABH '6 •ssjaAjad ST pasu 3UTnu3§guipjBSaj Suipuij (m) pLre 'sssuisnq §uiuuru joj s^q^^ins ST jjpure{d aq^ jo ssnoq {Bpuapissj jo uopjod ;uojj v 'A{p3^irapB sv ssjaA-isd ST uoi:'BpommoooB 3Ai:Buja^T3 jo ^Hiq^ireA-B SuTpjegaj guipuy sqj, (n) 'A^-i'ed Aresssosu jo japuior-uou uio-ij pajajjns ^ins sq^ 'ajojajaq: pue '^ins sq^ jo ^jed Ai'esssoau siSfA JSUMO-OO §upq {B§U'B]/\[ nnig jaq^ojg (i) -V3v^ sje s-tirenadd'B si.i^ joj psunoo paujeai 'rei.[§uig •Bpmjeqs uqsng A:q pasrej suopus^uoo ureui sq^ MOM -g '17!s^ •y^ ^ '^-^'' ^^£^ business. More over, the law is well settled in this regard that accommodation in possession of the land lord used for residential purpose cannot be treated as non-residential and, therefore, cannot be termed as suitable alternative accomm.odation for the purpose of non-residential need. 12. The second point raised by the learned counsel for the petitioner is also of no substance inasmuch as law is well settled in this regard that a co-owner is as much an owner of the entire property as any sole owner of fhe property is. The Supreme Court in Sri Ram Pasricha -v- Jaeannath and others reported in (1976) 4 SCC 184, while dealing with the word "owner" under Section 13(l)(f) of the West Bengal Premises Tenancy Act, 1956, which is in para materia of provisions contained in Section 12(l)(f) of the C.G. Accommodation Control Act, held in para 28 that a co-owner is as much an owner of the entire property as any sole owner of a property is. 13. The question regarding the effect of deafh of original landlord / plaintiff after passing judgment and decree by the trial Court on the ground of his personal requirement has already been settled by the judgment of Supreme Court Shakuntala Bai and others -v- Narayan Das and others reported in (2004) 5 SCC 772, a case which arose out of the provisions of M.P. Accommodation Control Act and the Supreme Court in para 14 held thus:- "14. Sub-section (1) of Section 12 oftheAct says "no suit shall be filed in any civil court against a tenant for his eviction ...". The language employed does not say no decree shall be passed ...". So the bar created is against filing of the suit except on one of the grounds enumerated in clauses (a) to (p) of the sub-section. Therefore what is to be seen is whether the suit was validly filed i.e. u^hether on the date of filing of the suit one of the grounds was made out. A suit validly filed cannot be scuttled or held no longer maintainable in afcsen.ee of any spedfic provision to that effect. Therefore the principle that "the need of the landlord /^ ui .-.A"''^ ^^9' a t •.i"v~ y :^ must exist till the decree for eviction is passed by the last court and attains finality" can even otherwise have no application here in view of the express language used in the section. 14. While dealing with the scope of Section 100 of C.P.C., the Supreme Court in case of Santosh Hazari -v- Purushottam Tiwari reported in (2001) 3 SCC 179 in para 12 held thus:- 66"12. The phrase "substantial question of law", as occu.rn.ng in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic rnerely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffbdng the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(l)(a) ofthe Constitution. The substantial question oflaw on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172), the phrase "substantial question of law as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as betuieen the parties................................... 15. Therefore, the concurrent finding recorded by both the Courts below regarding bonafide need of the plaintiff was essentially a finding of fact, was rightly recorded based on appreciation of oral as well as documentary evidence led by the parties and on settled principles of law. Therefore, I am of the •.J'?^fe considered opinion that no substantial question of law arises for determination in this appeal. 16. The appeal is therefore, liable to be and is accordingly dismissed at admission stage. Sd/- N.KAgar^/ai.