}0 »»»— c ^.; -Li^l IN THE HIGH COURT OF JUOICATURE AT BILASPUR SECONb APPEAL N0. S^i ^ /2009 ABPELLANT ^^ ^-••'" : ^^Bajrang Vyas, aged 39 years, son of Shn' Sherchond, resident of Batawiya Building, Malviya Road, Raipur (CG) RESPONbENT ^laintiff) Vs Arvind Himmatlal Batawiya, aged about 60 years, son of Late Himmatlal Batawiya, resident of Civil Lines, Raipur. SECONb APPEAL UN&6R SECTION 100 OF THE CODE OF CIVIL PROCEbURE, 1908 Civil Suit & First Appeal valued at Rs.12.000/- & court fee paid Rs.1240/- This appeal valued at Rs.12.000/. and ^ V HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.343 of 2009 f*^» Bajrang Vyas versus Arvind Himmatlal Batawiya ORDER Postfor 16-4-2010 Sd/- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar MJshra Appellant Respondent Second Appeal No.343 of 2009 Bajrang Vyas versus Arvind Himmatlal Batawiya ^ Present: Shri B.P.Sharma, counsel for the appellant. Shri Goutam Bhaduri, counsel for the respondent. Second Appeal under Section 100 of the Codebf Civil Procedure. ORDER (Passed on ^KApril, 2010) The instant second appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant/defendant challenging the judgment and decree passed by the first appellate Court, i.e., the Court of 12th Additional District Judge, Fast Track Court, Raipur on 20-4-2009 affirming the judgment and decree dated 22-12- 2008 passed by the trial Court, i.e., the Court of 2nd Civil Judge, Class-11, Raipur. The Courts below have decreed the respondent/plaintiff/landlord's suit for evictjpn ypon finding that the plaintiff has proved his non-residential bona fide need under Section 12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 (henceforth'the Act, 1961'). - 2. The plaintiff preferred the suit for eviction of the defendant from the suit shop situated in the ground floor of the building known as ^^y~; j •^ -^^^""' ^ ^ t ^y.. .^',-^ <^^'J/ ^^5^ ^ J>1 Batawiya Building at Malviya Road, Raipur. According to the plaintiff, he is the owner and landlord of the premises wherein the defendant was inducted as a tenant in September, 1992 for non-residential purposes on a monthly rent of Rs.1,000/-. It was stated by the plaintiff that when the defendant continued to carry on nuisance in the suit premises, his tenancy was terminated in November, 1993 and a suit for eviction bearing Civil Suit No.170-A/2001 was filed on 8-12-1995, however, the present suit has been filed for the defendant's eviction on the ground that the plaintiff needs the suit shop for carrying on his own business. It was stated that he has received proposals/offers of dealership from Nerolac Paint Company and Blove Plast Limited and is otherwise also able to conduct his business, his family being engaged in the business and he has sufficient experience. 3. During pendency of the present suit, the plaintiff amended the plaint to state that the earlier suit has been dismissed on 18-8-2003 and the principle of res judicata, as stated by the defendant in his written statement, is not applicable in a suit for eviction under the Act, 1961. It was stated that the earlier suit was on different grounds and the present suit has been filed only on the ground of bona fide need, which is maintainable under the Act, 1961. It was also stated by the plaintiff that the plaint map is a map prepared during family partition and that the partition is in the knowledge of the defendant and also that the tenancy agreement dated 1-9-1992 hasbeen executedin between the plaintiff and defendant, therefore, the defendant is estopped from /challenging the plaintiff's ownership in the suit premises. ^•: .;/. ^K^-. :^iy'~ '^ .?^~ ,;:y ^-^^:^^':~ ^ ^tt8^g& 4. The defendant, in his written statement, admittedthat the plaintiff is the landlord and also that he is the joint owner of the suit property though it was further stated in paragraph 2 of the written statement that the plaintiff is not the exclusive owner and that the other legal heirs of late Himmatlal are also the co-owners of the property. It was the case of the defendant that the suit for eviction has been filed on frivolous ground and there was an oral agreement to sell the suit property for Rs.2 Lakhs. According to the defendant, he has not committed any nuisance in the suit shop and that in view of the filing and pendency of the earlier suit, the present suit is not maintainable on the principle of res Judicata. The defendant further stated that since the plaintiff has not stated about his bona fide need in the earlier suit, it is apparent that the need projected in this suit is artificial and is not Jbona//"cfe and that the suit is also barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908. 5. The defendant further stated that in the absence of any document regarding partition of the joint family property, the plaintiff cannot be treated as exclusive owner of the suit shop and thus it should be held that the plaintiff has not become the absolute owner. 6. The trial Court framed two preliminary issues to the effect as to whether the co-owners of the suit shop are necessary parties and whether the plaintiff's suit is barred by principle of res judicata. By order dated 29-12-2005, the trial Court decided that the co-owners are not necessary parties to the suit and that the present suit is not barred under the principle of res judicata because the earlier suit was not on '••^s.'s^ ^ ^ ^ the ground of bona fide need on which the present suit has been preferred. 7. In course of trial, the plaintiff examined himself as P.W.-1, whereas the defendant also examined himselfas D.W.-1. 8. The trial Court, vide its judgment and decree dated 22-12-2008, decreed the suit after finding that the plaintiff has proved his non- residential bona fide need for carrying on his own business in the suit premises and that he has no other reasonably suitable alternative accommodation in the city of Raipur. 9. The judgment and decree passed by the trial Court has been affirmed by the first appellate Court vide judgment and decree dated 20-4-2009, which is impugned in this second appeal. The first appellate Court affirmed the findings of the trial Court on the issue of bona fide need as well as on the issue that the plaintiff has no other reasonably suitable accommodation in the city of Raipur to satisfy his need. The first appellate Court has also dealt with the argument raised by the appellant that the trial Court has not property appreciated the fact that in the absence of proof ofpartition amongst the family members, it should be held that the plaintiff has not been able to prove his ownership and on this count it should be held that the suit is not maintainable. The appellate Court has negatived this contention of the appellant in paragraphs 22 and 23 ofthe impugned judgment. 10. Learned counsel for the appellant has argued and has also submitted a written submission to canvass that the plaintiff has not proved his ownership ofthe suit shop and since to succeed in a suit for s eviction on the grounds enumerated under Section 12(1)(f) of the Act, 1961 proof of ownership is necessary, therefore, a substantial question of law arises for determination. He has also submitted that on account of non-filing of the deed of partition in the present suit to prove ownership, the Court should have drawn adverse inference. He has relied on Jagdish Prasaofvs. Ramkumari, (1988) 2 RCJ 264, Punjab Urban Planning & Development Authority vs. Shiv Saraswati Iron & Steel Re-Rolling Mills, (1998) 4 SCC 539, T.K.Abu Baker vs. A.S.M. Abu Baker, (2009) 14 SCC 224, (1999) 4 SCC 539 (though no case law starts from this page of SCC). To buttress his submission regarding non-maintainability of the suit as it is barred by Section 11 of the Code of Civil Procedure, 1908 as well as under Order 2 Rules 2 and 3 of the Code of Civil Procedure, 1908 the appellant has relied on Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas andanother, (2008)11 SCC 753. 11. This Court shall first deal with the argument raised by learned counsel for the appellant that the suit is barred under Section 11 read with Order 2 Rules 2 and 3 ofthe Code of Civil Procedure, 1908. This argument is advanced on the ground that when the present suit was filed, an earlier suit preferred by the plaintiff for the appellant's eviction under Section 12(1)(c) ofthe Act, 1961 was pending (which was later on dismissed), therefore, the subsequent suit on the ground of bona fide need was not maintainable and that the plaintiff could have amended his earlier suit to plead the newly available ground of bona fide need instead of filing the present suit and as such the instant suit ^/ 1 Ml-1 ^ -^^ ^ is barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908 and is not maintainable. The Supreme Court in Surajmal vs. Radheyshyam, (1988) 3 SCC 18 has held in paragraph 8 ofthe report thus: "8. The learned counsel for the appellant Sunderbai contended that in substance the case of the plaintiff- respondent in the earlier eviction suit and in the present suit is the same and since the earlier suit was dismissed the present suit also should be dismissed. The High Court /'/? paragraph 4 of its judgment pointed out that the nature of requirement pleaded in the earlier suit was different from that in the present suit. The first appellate court while deciding the issue against the defendant observed that the bona fide need must be considered with reference to the time when a su'it for eviction is filed and it cannot be assumed that once the question of necessity is decided against the plaintiff it has to be assumed that he will not have a bona fide and genuine necessity ever in future. We are in agreement with the views as expressed by the two courts." In the present case, the facts are still more favourable for the plaintiff/landlord inasmuch as his earlier suit was not on the ground of bona fide needbut was on the ground ofcommission of nuisance by the tenant which is a ground under Section 12(1)(c) of the Act, 1961. When the Supreme Court has found that in spite of the plaintiff filing the previous suit on the ground of bona fide need, his subsequent suit again for a bona fide need is not barred, the said principle would apply in favour of the plaintiff in the present case and thus the argument raised by'learned counsel for the appellant has no substance. ^^ 1 1 wy"'^ i '%. ^s^' ^ 'l^.^ ^%^^ »^»N» y ^ 12. This Court shall now deal with the argument raised by learned counsel for the appellant that in view of the plaintiff's failure to submit and prove the partition between the family members, wherein the suit shop has fallen in the share of the plaintiff, it should be held that he has failed to prove his ownership and as such he is not entitled for a decree underSection 12(1)(f)oftheAct, 1961. To deal with this argument, it is apt to refer to the law settled by the Supreme Court as to whether a suit filed by the co-owner for eviction of the tenant is maintainable or not. The Supreme Court in the case of Sri Ram Pasricha vs. Jagannath and qthers, MR 1976 SC 2335 and in the case of Si/per Forgings & Steels (Sales) Pvt. Ltd. vs. Thyabally Rasuljee (Dead) through LRs., (1995) 1 SCC 410 has held that in a suit for eviction filed by one co-owner, all the co-owners are not necessary parties and that such a suit on the ground of bona fide need on behalf of a co-owner is maintainable. In the case of Santosh Kumar Jain vs. Shambhulal Krishna Kumar Suhane, AIR 1993 MP 46, it has been held that in a suit for eviction on the ground of bona fide need, plaintiff is required to prove his prima facie title and not as if he is proving his title in a title suit. In the present case, the defendant has not denied that the plaintiff was a co-ownerof the suit premises. The argument proceeds on the ground that since the plaintiff has set up a case of partition to submit that the suit shop has fallen in his share in the partition, the plaintiff cannot subsequently fall back upon the plea of co-ownership and that once having raised aplea of absolute ownership, he can succeed under Section 12(1)(f) of the Act, 1961 only when he proves his absolute 'bwnership. This Court is not convinced with the argument raised by ^t:""4 '^:::. " ^,•'%, '-^y% 1 .2^ 8 learned counsel for the appellant. The defendant/appellant has himself executed a tenancy agreement which finds mention at paragraphs 12, 13 and 16 of the plaintiff's examination-in-chief, which has not been challenged in the cross-examination. Moreover, in paragraph 2 of the written statement, the defendant has made categorical statement that the plaintiff alone is not the owner of the premises but it is a joint family property. This admission of the defendant about the plaintiffs ownership even though it is admission of co-ownership would be sufficient to hold that even though the plaintiff has not filed the deed of partition, the suit cani be thrown out on the ground of non- maintainability. 13. The next argument of learned counsel for the appellant that the plaintiff has not been able to discharge the burden of proof has also no substance because once both the parties have led evidence to prove their respective cases, the question regarding discharge of burden of proof becomes insignificant in a suit for eviction. This Court is only required to examine whether on the basis of evidence available on record the plaintiff is entitled for a decree of eviction or not. 14. In view of the concurrent finding recorded by the Courts below in favour.ofthe plaintiff regarding bona fide need, this Court does not find any substantial question of law arising for determination in this appeal. The present second appeal, thus, fails and is dismissed at the admission stage. Sd/- prashantKumarMishra Judge _„„ (. ^ Gopal