IN TEE HIGH COURT OF JUDICATURE AT BILAsPUR (cg) Second Appeal No.€§ of 2064 § ag§$ “3% V O M” 1f}; I; V ( Mgnarandum of second Appeal Ii/s 100 of C.P.C.) ggPEma‘ANTg RES PONDENTS -:.‘ , MEM‘Q RANDU'M 9F 1i Nimala Nanda Wd/o Late shri If Manikchand Nanda, aged about 70 years o. 2? vipin chana Nanda s/o Late Mani]: Chand Nanda, aged abcut 42 yaars. mth resident of Near Pavam ialkies, Main Road, marba (CG). Versu s 1'3“ radheshyam Modi S/o Dhanraj mai. / aged about 63 yeam, r/o §dar Bazar, Ehampa, mstrict Janjgir Ch‘ampa (CG). mun JOshi, Joshi mow Gapiers, In‘éront af Pavan Talkies, Main mad; mrba (CG). w“ $CGND §PPEAL UNDER SEC’KEON 100 OF C.P.C. w; HIGH COURT OF CHHATITSGARH AT BILASPUR SA. No. 603/2004 Nirmola Nanda and another. Appellants Respondents Shri G.K. Beriwal counsel for The respondents. W (Passed onH -3-2005) The appeHan‘rs/defendunts have prefer againsf 1'he judgmen‘r and decree deted Addi‘rional Disfr'ic'r Judge Korbo in Civil Ap whereby the judgmen‘r and decree da‘l’ed Judge mass I Kérba in cavn Sun 36-A/2o The suit of ‘rhe plaintiff / ‘andiord reed by fhe frial Courf on 1he ground red The insfam' appeal 3.12.2004 passed by peal No. 19-A/2001 27.7.2001 passed by Civil 00 has been confirmed. 2. dec under sec‘rion 12 (1) (a) and on fhe ground of sub Tenancy under for evicfion has been of non paymenf of ren‘r -~ w Radheshyam Modi and anofher. 5hri V.C.$harma counsel for the appellants. w sec‘rion 12 (1) (b) of The Chha‘r‘risgcrh Accommoda‘rion Confrol Act (hereinafter referred ‘ro as Ac1' for brevi‘ry) and also on 'rhe ground of bona fide requiremenf of The plainfiff for opening a shop and for- fhe purpose residence, which has been subsequently confirmed by 'rhe firs? appella‘re Court 3. The case of The plain‘l'iff before The Trioi CourT was ThaT The house in quesTion is recorded in The name of his moTher which was ieT ouT by The plainTiff To The defendanT No.1 on monThly renT of Rs. 350/- in which he was carrying on The business in The name of Nanda Rui Bhandar and was also residing in The remaining parT of The said accommodaTion. However, parT of The accommodaTion was renTed by defendan'l' No.1 To defendanT No.2 on mon‘i‘hly renT of Rs. 750/- who is carrying on The business in The name of Joshi PhoTocopiers. The defendanT defoulTed in paying renT from November 1994 To June 1996 ToTaiing Rs. 7000/-. IT was also The case of The plainTiff before The Trial CourT ThaT he required The suiT accommoda‘l'ion for his bona fide requiremenT of his son Anil Kumar who desired To run his business aT Korba and ThaT he did noT have any reasonably suiTable aITernaTive accommodaTion excepT The suiT accommodaTion in Korba Town. RegisTered noTice was senT To The defendanTs on 8.7.96 but The defendanT refused To accepT The same and Therefore The suiT was filed by The plainTiff on The aforesaid grounds. 4. The defendanTs in Their wriTTen sTaTemenT sTaTed ThaT The renT of The house was iniTially‘fixed aT Rs. 100/- per monTh buT subsequenTly The same was increased. The defendanTs have furTher sTaTed ThaT The plainTiff did noT geT The necessary repair work done in The suiT house and when The condiTion of The house became \—3 dilapidawd The defendan'rs go‘r if repaired by spending Rs. 50,000]— on fhe promise 0f The plaimiff/Iandlord to adjusf 'rhe same against fhe rent The aliegafion of sub ‘renancy was however denied by “the defendant If was submi‘Hed ‘rha‘r fhey paid The renf buf 1'he piainfiff refused i0 accept 1'he same. The defendan'r No.2 was proceeded ex parfe before ‘rhe Trial Court 5. Learned counsel for- fhe appellanfs submifs Tha'I' so far- as The ground faken under secfion 12 (1) (a) of The Ac'l' is concerned, from fhe pleadings of 'rhe plaintiff i‘rself i'l' is evidenf tha‘r ‘rhe noi'ice was sen'l' To the defendant on 8.7.1996 and the suit was filed on 1.8.1996. Thus the suit under section 12 (1) (a) of the Act was premature as the same was filed before the expiry of the statutory period of two months after the notice as required under section 12(1)(a) of the Act and thus suit could not be decreed under section 12 (1) (a) of the Act. o 6. The instant objection is taken by the defendant for the first time at the time of argument. After perusing the records of both the Courts below, the plaint and written statement it is evident that the defendant at no point of time raised this dispute by way of preliminary objections and this was not an issue either before the trial Court or before the First Appellate Court. Even in the substantial questions of law proposed by the appellants/defendants in the memo of second appeal this objection does not find place. 7. Learned counsel for the respondents submitted that the suit is based on the ground of bona fide requirement of the plaintiff and arrears of rent and therefore, the objection of the plaintiff in this regard is untenable at this stage. It is further submitted by the counsel for the respondents that even after the institution of the suit ‘ft @ and service of nofice by fhe Cour‘r, 'rhe appellan'rs/defendan'rs have neiTher Tendered The rem nor deposHed the same in 1he Couuw which has been admi'r'red by fhe defendanf in'paragraph 16 of his deposi‘rion fhaf affer filing of the suit he has no? paid fhe ren‘i for last 1 % - 2 years ”though he fendered the ren‘r fhr-ough money order buf no receip‘i has been filed. 8. In view' of The above boih the courts below have recorded the concurrent finding that the defendant has defaulted in payment of rent and passed the decree of Rs. 7000/- towards arrears of rent. Thus considering the fact that the suit for eviction was filed on the ground of non payment of rent, for bona fide necessity of the sUit accommodation, the sub tenancy and the fact that the tenant never raised this objection before the Courts below, I am of the opinion that the objection raised by the defendant in this regard can not be entertained at this Stage. 9. The second objection raised by the appellant is that the Courts below have heavily relied on the statement of PW-l, the Branch Manager of the Bank who has stated on oath that defendant No.2 had obtained loan from his bank by submitting the lease deed executed by the land lord Vipin Chand Nanda son of late Manikchand Nanda. 10. Learned counsel for the appellants submitted that both the l Courts below relying on the statement of PW—l have held that the suit accommodation was given on rent by the defendant No. 1 to defendant No.2 though the document on the basis of which PW-l has deposed ldoes not bear the signature of defendant No.3 and that person has not been examined. t 5) ./V @ 11. The above confenfion has no force as bofh 'l’he Cour-1's below on fhe basis of 1'he evidence of The wi‘rnesses and maferia! available on record have arrived a‘r fhe conclusion fha? +he defendan‘r No.1 inducved defendan‘r No.2 as sub fenonf on The mon'rhly ren‘l' of Rs. 750/-, con no1' be assailed in The second appeal. 12. The fhird ground raised by fhe appellan‘rs/defendanfs is ‘rha? bofh fhe Courfs below have erred in arriving af ‘rhe conclusion ‘rha'r‘ The plainfiff bonafidely required fhe suit accommoda‘rion for 1’he purpose of opening a shop for his son Anil Kumar and also for 1'he residenfial purpose as from fhe bare perusal of 'rhe plain'r i'r is eviden‘l' 'rhaf fhe necessity of ‘rhe sui'l' accommodafion is no'r bona fide bu'l' if was a mere desire. The a'rrenfion was drawn 1’0 fhe pleadings in paragraph 9 of ‘rhe plain? wherein if is s'iafed fha‘l‘ fhe son of The plainTiff namely Anil Kumar wanTs The suiT house To open The elecTricaI .. shop and furTher To reside in The suiT accommodaTion and for ThaT purpose The same was required by The plain‘fiff as he had no o‘lher alTernaTive accommodaTion available in Korba Town. He furTher submiTs ThaT wanT/desire can noT be a bona fide requiremenT as The defendanT can noT be evicTed simply on The desire of The landlord. 13. On The oTher hand learned counsel for The responden‘I's submiTs ThaT The desire of The plainTiff is based on necessiTy for opening a shop‘and also for The residence of The plainTiff and in This regard reference To The admission of defendanT No.1 in paragraphs 15,19 and 20 of The sTaTemenT recorded in The CourT, has been made wherein The defendanT has admiTTed ThaT son of The plainTiff An’il Kumar is engaged in The Training of elecTrical appliances in Korba as The 56 Ju ~é, prospects of business are more in Korba and +he necessity of ‘I'he plain?iff for fhe aforesaid purpose has no'r been denied. 14. Thus in view of fhe fads mentioned above bofh fhe Cour‘ts below have nof commif‘red any iiiegali'l'y in arriving a1' The conclusion 'rhaf The sui1' accommodafion is required for 1'he bona fide need of residence and .shop for 1'he son of The piainTiff namely Anil Kumar. Learned counsel for The appellan'l's relied on The decision of The Supreme CourT in The maTTer- of MsT. Bega Begum and oThers Vs. Abdul Ahad Khan (dead) by LRs and oThers reported in AIR 1979 SC 272 and submiTs ThaT in The said judgmenT disTincTion has To be made beTween The desire and need. However, in The presenT case The need of The plainTiff is well esTablished and The same is admiTTed by The defendanT also. He furThe‘r submiTTed ThaT son of The plainTiff is living separaTely and Therefore, The need of The son can noT be considered To be The need of The plainTiff and in supporT of This conTenTion he relies on The judgmenT of The Supreme CourT in The maTTer of Laichand ChoiThram Sindhi Vs. Loxmandas Narayondas . Sindhi reported in 1992 MPLJ 352 wherein iT is held ThaT where son is separaTe, he could noT be TreaTed as parT of (€75 The gamily M/ and The suiT for bona fide requiremenT under secTion 12 (1) @of The ACT can noT be decreed under such circumsTances. However, in The presenT case, There is no maTerial available on record To show ThaT The plainTiff's son is noT The member of The plainTiff. IT was noT even The case of The defendanT before The Trial CourT and no evidence has been led To This effecT in The presenT maTTer and Thus The objecTion of The defendanT in This regard is also noT mainTainable. a ~7 1 d @ , , Jyo‘HS‘hi ..._ '7 ,. 15. Learned counsel for the appellanfs has also challenged fhe judgmem' of The fir-sf Appellate Courf by which the agpellafe Cour? has reversed The finding of ‘rhe Trial Court 1ha't fhe fenanT/defendan‘r invesfed Rs. 50,000/- in repair work of ‘l'he house. He fur'rher submi‘rfed fha'r The frial Cour? on 1he basis of the material available on record has arrived at 'the conclusion that Rs. 50,000/- were invested by the appellant in the repair work of the house with the prior permission of the landlord and the same has been erroneously reversed the by first appellate Court. However, the appellate Court has held moi in The pleadings me defendant has s'mted Thai he invested Rs. 50,000/- in the repair work of the house but in his statement on oath he has stated that he invested Rs. 3-4 lakhs and thus there is contradiction in the pleading and the evidence of the defendaht and further that he had not obtained any written from the 0\ permission plaintiff to make the repair work nor» any permission has been sought from the local authorities for undertaking 7w the said repair work in the suit house, and arrived at the conclusion that the factum of investment of Rs. 50,000/- by the defendant in the the repair work of the suit house has not been proved. The above finding has been recorded in accordance with the material available on record and the same does not call for any interference. 16. Consequently, in view of the discussion made above this Court is :\/\ of the. view that there is no flaw in the impugned judgment and decree {4 i which prompts this Court to interfere with the same in this appeal. Accordingly, the appeal is liable for dismissal and the same is ;. dismissed as such. l 17. However, there shall ' be order l as to costs. if l Sdl~ /_'/' 7; \ l Dhirendra Mishra l l Judge