» HIGH COURT OF CHHATTISGARH AT BILASPUR SECQND APPEAL N0. 406/2009 APPELLANT RESPONDENTS VERSUS Manish Kumar Barmeda and others. Snit. Kanti Sharma artd others. Post for pronQunces'-ent of iudament on 6/09/2010. • Sd/- T.P. Sharma Judge i\:.- • ' '^^'^tot^. /^r-^%. "^ f'^s^1! ••5*iui»£«u?^.•-„ ^. %.i;-'"v "^L.-.A;1'^ lS^'} HIGH COURT OF CHHATTISGARHAT BILASPUR SECOND APPEAL N0. 406/2009 APPELLANT RESPONDENTS 1.. Manish kumar Barmeda,, s/o late Kanti Lal Barmeda, aged about 41 years, r/o Infroht of Tara Bhavan, Malviya Road;Raipur (C.G.) 2. Chetan Barmeda, s/o late Kanti Lal Barmeda, aged about 38 years, r/o Choubey Golony, Raipur (C.G.) - , Versus - 1. Smt. Kanti Sharma, widow of Krishna kumar Sharma, aged about 66 years 2. Sujeet Kumars/o late Krishna Kumar Sharma, aged about35years- 3. Ku. Jyoti Kiran, d/o late Krishna kumar Sharma, aged about 28 years 4. Ku. Pushpanjali, d/o late Krishna Kumar Sharma, aged about26years All residents of House No. 11/52, Malviya Road, Raipur (Chhattisgarh) 5. Smt. Uma Shukla, w/o Shri Raj Kumar, aged about 42 years, r/o Pawan Vihar Colony, Amlideeh, Raipur (C.G.) , - ^ . ,, 6. Smt. Savita Mishra, w/o Shri Shailesh' Mishra, aged about 38 years, r/o Mohan Nagar, Durg (C.G.) 7. C.P. Gramophone, through- Kanti Lal Barmeda,House No. 11/54, Infrontof Tara Bhavan, Malviya Road, Raipur (C.G.) , . :, 1 ,",^/..,:1::::'. 8. Vijay Kumar Sharma, s/o Late Krishna Kumar Sharma, r/o Aanand Niketan, Shree Patnayak, House No. 11, Avanti Vihar Colony, Raipur (C.G.) SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PRQCEDEURE. 1908. (SB :Hon'ble Mr. T.P.Sharma, J.L Present: Mr. Pramod Venna, Sr. Advocate with Mr. Suniit Verma, Advocate for the appeUanfs. Mr. B.P. Sharma, Advocate for-the respondents: JUDCrMENT (Passed on 6/09/2010) By this second appeal under Section 100 of the Civil Prpcedure Code, 1908 appellants have challenged the illegality and propriety of te" ;(^ )!?" :^ES:.., . "€-,''". 'X ^.. •• ;;'^.<afc*^.^. ' .J ^•;.?-^.-*''l.y ?ss.t'";"-;y'. thejudgment anddecreedated 3/9/2009 passed by lQ*h Addidonal District Judge,F.T.C. Raipur in Civil AppealNo. 3-A/2Q09 affirming thejudgment and decree dated 27/3/2009 passed by 6th Civil Judge Class-I, Raipur inCivil SuitNo.339-A/02. , 2. Present secohd appeal has been admitted for cbnsideration on the following substanfial questions of law:- "(i) Whether both the Courts below have erred in holding that even after tke death oforiginal tandlord Krishna Kumar Sharma who was running the busm.ess ih ohe shop, need- of non-residential - purposefor Sujit Kumar present respondent No. 2 is not satisfied? , . (ii) Whether Court below has not complied the mandatory prouisions ofSection 12 (6) (b)ofthe C.G, Accommodation Control Act, 1961?" 3. As per pleadings of the parties/suit accommodation was let out to present appellants for non-residential purpose. The suit for eviction on the ground of bonafide rieed for business of electorical apparatus repairing shop for respondent No. 2 Sujeet Kumar has filed 'by the husband of respDndent No. 1 and father of appellants No. 2 to 4. After death of plaintiff Krishna Kumar Sharina suit was amended and pleaded that respondent No. 3 daughter of the Krishna Kumar Sharma since deceased has started cpmpyter busiiiess forherfamily in the premises used by his father and suit accommodation is bonafidly required for respcindent No. 2 Sujeet Kumar. Same was objected by appeUants on the ground ttj.at there is no bonafide need pf suit accommodation for non-residential purpose of Sujeet Kuinar. During pendency pf suit Krishna Kumar Sharma original plaintiff ..:*.. -^. ., _'r'" (,.,,. died and his legal representatives were impleaded as a plaintiffs and plaint was amended and it was pleaded that affer death of father of Sujeef Kumar i.e. Krishna Kumar Sharrha original plaintiff, business of Krishna Kumar Sharma was run by Sujeet Kumar iti same - !t- premises used by Knshna Kumar Sharma for running electrical apparatus repairing shop and after spme time on the ground of need qf fariiily respondent No. 3 Ku. Jyoti Kiran da.ughter of Krishna Kumar Sharma has started business of Computer and present resppndents is continuing in his business bymoving door-to-door and still accommoda.fion is bonafidly required for business of Sujeet Kumar. Allegations made in plaint reveals that after death ofKrishna Kuinar Sharma premises used by Krishna Kuraar Sharma came in to possession of Sujeet Kumar who started/continyed his business ^ ^ satisfied.. ' 4; Affer affording an Opportunity of hearing to the parties leamed 6tl1 Civil Judge Class -I,Raipur decreed the suit on the groundbf bonafide need of Sujeet Kymar, Judgment and decree was challenged before the Lower Appellate Court, while judgmeaf and decree impugned Lower Appellate Court has affirmed the judgment and decree of eviction of suit accorriniodation on the ground-of i. bonafide need for non-residentia.l purpose for.respondeht No. 2 Sujeet Kumar. 5. Mr. PramodVerma, Sr.Advocate with Mr. Sumit Vernia, Advocate for the appellants and Mr. B.P. Sharma, Advocate for the respdndents ^.•are:;heard.' - •• '; ,. !^ '' . . ' ' :: ' , ." ". .' '.^' :' ;': 6. ,Judgment and decree of both the Courts below and record of both the Courts below perused. ^ ,.A. \ ^^--> 7. Aforesaid two substantial questions of law has been formulated for decisipn of this second appeal. 8. Leamed counsel fcr the appellants vehemently argued that as per admitted pleading and evidence, original plaintiff Krishna Kumar Sharma was runnirig the business of electrieal apparatus repairmg in phe premise, which was sufGcient to run such business for him. The eviction was sought on the gfound of bonafide need of suit accdmmodation to run the same business by respondent.No. 2 Sujeet Kumar whb was not havihg any aecommodation to ruh his business but when Krishna Kumar Sharma died the accommodation used by Knshna Kumar Sharma was fallen vacant and the present respondent No. 2 continued his business in same premises therefore need of Sujeet Kumar is satisfied thereafter with a view to evict the appellants, respondent No. 3 has started the busmess of computer in the suit premises, although there is no reslriction for eviction of suit premises for business of any of the family member entifled for eviction but in the present case respondents were required tp lile the fresh suit for evictipn against the appellants on the grcfund of bonafide need of respondent No. 3 Ku. Jyoti Kiran therefore on the ground of need ofSujeetKumar decree for eviction was not legally possible but bdth the Courts beldw has decreed the suit for eviction. 9. Learned counsel for the appellants placed reliance in the matter of Hiisniat Rai and another v.»Raehunath Prasad1 in which Apex , , Court has held that the ground pf bonafide requirement of landlord inust not only exist on the date ofthe action butrnust subsist fill the final decree and alsp to continue to exist at appellate stage, in ease,- 'AIR 1981SC 1711 ~ri '""f. iftenant is in a possession to show that the need or requirement no mQre exists because of subsequent events, it would be open tQ him tb ppint out such eyents and the Court including the appellate Coyrt,, ,; has to examine, evaluate and adjudicate the saine. 10. On the other hand, leamed counsel for the respondents opposed the second appeal and veheniently argued that the accorornodation was required for bonalidely for business of respondent No. 2 Sujeet Kumar even still today Sujeet" Kumar is not havihg any aGCommodation for running his business therefore the Courts below hayerightly decreedthe suit. ' , . 11. Learned counsel for the respondeats plaeed reliance in thejudgment'' ' dated. 8/9/2009 passed by this Court in S.A.No. 465/2001 (Eloayers Tailor v. Ravishankar Awasthi) in which it has been held that bonafide need of landlord must be respected. 12. Learned counsel for the respondenfs further placed reliance in the judgment dated 8/9/2009 passedbythis Court inS.A. No. 7 of 2002 (Manoi Kuhiar Sao and another v. Ravishankar Awasthi) in which it has been held that on proof bonafide need by the landlord, landlord is entitled for eviction. 13. Leamed counsel for the respondents also placed reliance in fhe judgmentdated 7/10/2009 passedbythis CourtmS.A.No.-244of 2000 (Davaldas Ganewani and another v. Sint. Shanti Shukla and others) in which it has been held that crucial date for existence of landlord's requirement is the dated of filing of eviction application, even after the death of landlord during pendency of appeal, bona.fide need cannot be said to have lapsed as the business in questfpn caa be carried on by his widow or heirs i.e. family raeinbers. ^Mfiis,, '"%, ""h ''i<S£^9y' y'f_ f' "',(•''•• l1..'> 14. Leamed counsel for the respondents also plaGed reliance'in the matter of Maganlal sonof Kishanlal Godha V. Nanasaheb son df Udhaorao Gadewar2 in which Apex Court has held that in case of eviction landlbrd-tenant litigadons prolong for a long time, neither can the person who has started the litigation sit idle nor can the deyelopment of the eveht be stopped by him. Therefore, the crucial ii. event should be taken as on the date when the suit for eviction was Bled, uiiless the subsequent events materially change the ground of relieT. • ^ . •• '. ''.! '' . '! ^,, . . ^ ; :'.' .' ' '. , . ' .: . •.•^. 15. LigaFned counsel for the respondents also placed relianpe in the matter of Shakuntala Bai and others_y.^Iaravan Das and others3 in wUichApex Court has held that even after death of landlord the bonafide need subsisf in relation tothe legal representatives of the 1' landlord. '.•.., ' 1.;- . ' ' -,. ". : ,'''/'11''.''/:' 16. As per pleadmg and evidence of the parties, suit was'bonaiidly required for business of respondent No. 2 Sujeet Kumar. As per Para -13A of plaint during pendency of suit original plaintiff Krishna Kumar Sharma died. Krishna Kumar Sharma was running the business of electrical apparatus repau'ing shop is his pwn premises after his death the business was continued by respondent N0. 2 Sujeet Kumar thereafter on account of need of family respondent No. '. it. 3 Ku. Jyoti Kiran started Computer business in the said premises leftby Krishna Kumar Sharmaoyaccount ofhis death. 17. As per argument and contentions of the leamed counsel-for the appellants, when accommodafion used by Krishna Kumar Sharma 2(2008)13SCC758 3 (2004) 5 SeC 772 £ . .»>»TaR5l.. t,f!it\._ .^j. . -''k:''."\ .'^"'fe, '\ %*as^ & .*fe- %»- ^ .j :?' ^^s'f' was fallen vacant on account ofhis death and his business which is •-• lt. also a business of respondent No.2 Sujeet Kumar is continUed in the same premises by respondent No. 2 then the bonafide need of suit premises for Sujeet Kumar caine to an end and is sa.tisfied. Therefore once the business is started by Sujeet Kumar the eause of action of the suit came in to end and on that day fhe suit was without cause of acdon therefore no decree of eviction on fhe ground ofbonafide need for Sujeet Kumar was legally possible although respondents were entitled for filing fresh suit for eviction on the ground of bonafide need of suit accommodation for respondent No. 3 or any other member of their family. 18. The entire pleading and evidence reveals that on the death of Krishna Kumar Shanna the business of Krishna Kumar Sharma was contlnued by respondent No. 2 Sujeet Kumar for some time but thereafter i-espondent No. 3 started Computer busmess in the premises left by Krishna Kumar Sharma this things cannot be considered mechanically. Definitely, pn the death of father ~of ii respondent No. 2 the respandents were not expected to destroy his business or accQmmodadon ysed by him. They have continued the same for some time after death ofKrishna Kumar Sharma, this fact cannot be considered as independent business of Sujeet Kuinar in -thepremises left by KrishnaKumar ^Sharma on accouritof his desth. 'Virtually this was only the* eontinuance bf business by feumily members/heirs of the deceased Krishna Kumar Sharma and not by • 't. Sujee.t Kumar independently and finally family have started the'' ' ' bysiness of computer in the said premises throygh their bne farnily meinber respondent No. 3. ^':^^-'^'s:f^i^'^'^^^:^^!^^ss»y^< 19. As held in case of Hasmat Rai and another (Supra) that the landlord is required to prove cause of action subsist on the dafe pf filing of the suittill final decree andalso to continue to exist at appellate stage; Part of Para-14 reads thus:- "Where possession is sought for personal . ' requirement it would be correct to say that the requirement pleaded by lahdlord must not ohly exist on the date ofthe action but must subsist till — the final decree or an orderfor eviction ismade. If iri the meantime events have cropped up which would show tkat the landlord's requirement is wholly satisfied then that case his actwn mustfail and in such a ^ituation itisincorrecttosaythatas decree or order for eviction is passed against the tenant he cannot invite the'Court to take intb ~ , consideraticin subsequent events. Once an appeal against decree or order of evictionis preferred, tHe appeal being a continuation of suit, the landlord's need must be shown to continue to exist at appellate stage. If the tenant is in a pdsition to show that the need or requirement no rrwre exists , becaUse of subsequent events, it would be opento him to ppin.t out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same. " \ 20. As held in case of Elnayers Tailor (Supra) and Mano.j Kumar Sao and another (Supra) that landlord is a best person to prpve his bonafide need. . 21. As held in case of Dayaldas Gangwani and another (Supra) that defiHitely plaintiff is required to prove the existence need also at appellate st^e. , l.t.'. •\1..', '. l.t.', 'liliinm' %>: %M ^ ;fc..-^^? ""'••'ftw.-^' • ' lt. •!•' '".f\".. •;'-'' 22. While considefing the same question in the matter of Maeanlal son of Kishanlal Godha (Supra) Apex Court has held that Court is required to consider the crucial event and subsequent event if material changes the ground of relief. 23, In case of Shakuntala Bai and others (Supra) Apex Courf has held that Gourt is required to consider whether the cause of action subsist and existence evenat the appellate stage or not. 24. In the present case, suit was filed for business of Sujeet Kumar stiU> r Sujeet Kumar is not having any accommodation for his business. Premises left by Krishna Kumar Sharma on account of his death was used by his family members for some time through his son Sujeet Kumar thereafter to save their family and to eam money for their livelihood, respondent No. 3 who is in better position to run better business has started better business. Sarae cannot be treated that Sujeet Kumar has started or continued his bysiness in the premises left by his father and his need came into an end. Consequently, substantial question of law No. 1 formulated for decisicin ofthis second appeal is deeided as negative. As regard the substantial question oflaw No. 2 is concerried same is technical one and Court has'not satisfied the premises ofdecree although Courts below Were under obligationto satisfythe decree in terms ofSection 12 (6) (b) of the C.G.Accommodation Gontrol Act, 1961. 25. In the present case present respondents have filed I.A. No. 3 and has .Ct^" .. '. ' .. . , :' '. . : : undertaken that they will coniplyi^ the aforesaid provisions. Definitely'as per pleading of the parties accommodation is situated at Raipur, eviction decree has been passed on the ground Qfbonafide , need for non-residential purpose therefore, the decree must speciEed s i^%^%ii^^^it^^^i^^^^^^^^^^^^B^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^a m that respondents shall not be entitled fpr obtained possession before the expiration ofperiod Qf2 months from the date ofdecree. Present appellants were tenants for the peripd ofmore than 10 years therefore respondents are also liable to pay the double of anhual . :standard rent. . • ^ 26. For the foregoing reasons, substantial question pf law No. 2 is decided as positive. On the basis of decision on substantial questions Qf law No. 1 8s 2, second appeal is liable to be disraissed and is hereby dismissed with follQwing niodification in the decFee:- Respondents shall pay fhe dQuble of annual standard rent to the appellaats and the decree shall be executed only after lapse of 2- • mOnths from the date Qfdecree. ;27, Parties shall bear their own cost. . , 28. Advocate fee as per schedule. 29. Decree be drawn up accordingly. Sd/- T.P. Sharma Judge ^s^®^^