^ye^ HieH,COURT_ OF ^CHHATTI^ARH AT RI.L4SPl.« (SB; Hon'bteMr.T.P.SHARMA. JJ Second Appeal No. 38/2007 Ravi Kumar and ot^ers Vs. Prjtpal Singh and o^nother JUD6AAENT BE POSTED FOR PRON.OUNCEMENT ON 25/9/2009 Sd/- T.P. Sharma Judge ^B^m <-. y ^ 'M" ";!i'/ • HI©HCOURT OF CHMATTISeARH AT BIL4SPUR Seeond ^poeal No. 38/2007 HQ. i. Defendant No. 1 AppsJJant N@. 2 befendant No. 2 Appellant N0. 3 Defendant No. 3 1. 2. 3. Respondent No. 1, AppeJlarst No. 1 ResporsdeRt No, 2. Appellant No. 2 VERSUS 1. 2. Ravi Kumar, aged about 42 years, son of ftamkumar/ Radh ika Devi, aged about 75 years, widow of Late ftamkumar Khare (Since &ead), Satyendra Kumar, aged about 40 years, Son of Late ftam Kumar Khare, AIS are resident of In ,front of Jagannat+i Mandi'r, 6andhi Chowk, Rajnandgaon, &sstt,Rajnandgaon (C^.), Pnipa! Singh, aged about 44 years, son of Jeet ftam 80990, Smt. Keshar Devi, aged about 66 years, wife of Jeet ftam Both are resident of" Cinema ' Li.ne, Rajnondaaon, TahsiJ and Distt, ftajnandgaon (CS). •(Second ^ppcaS under Sectlon 100 of CPC) (SB :H®n<bSeMr.TP. ShcimiQ J.) Present.-< Shrj Aii Asgar, Advocate for the appe-iiwts. Shri Pramod Verma, Sr. Advocate with Mr. Sumit Verma, Advocate for the respondents. I i 1 JUD@EMENT (Deiivered on 25th September, 2009) 1. This second appea! is directed against the Judgment ond decree dated 28.12.2006 passedby the First ^.ddjtjona! District Judge, RaJnandgQon, In Clyjl Appeal No.4^-A/03 modsfying 1+ie Judgment <snd decree dated 23<9.2003 passed by fne Secqnd Civi! Judge Class-II,'Rajnandgd^n, in Civil Suit No.33-A/2001 whereby tearned Se.cond CiviE Judge Class-II has- decreed th@. suit for* arrears of rent and denled the chw of 'N,. (^) G.> c^. 2. 4. evlctlon but wh.ile reversing the Judgment and decree, Jearned bwer appeilate Court has decreed the suit for eviction- For de.clsion of the present q^pea!, folbwing substantlal question of law has been formuiated by this Court yide order dated 12.9.2007:- "Vl/hether the. judgment and decree. for evictjon of ^ 1+se respondents/tenan+s passed by the bwer appeJlate Court under Section 12 (1) Qa), (e) <& (h) of Chhattisgarh Accommodation Contro! Act is llable to be set aside being contrary to lawand facts^? Brief facts leading to filing of'thjs present appe-al, as per pieading of. the. parties are that present appeljants are pyrchaser of siiit property, They have purchased th.e property from Sonkunwar vlde sale deed dated 18-4,95 and beccme- bndbrd- The respondents are tenants on the suit iand. Origlnaliy, father of appeiiants No, 1 & 3 .and husband of respondent No< 2' was tenant. The. suit bnd was tenanted for residentjal purpose. The monl+ily rent was Rs,5Q/«.The defendants/appeliants have failed to pay monthly rent» SuSt house Is 70 yearsiold and is dilq^idated condjtion, The plaintiffs require the suit land for bonafide need of himself and for hls family members for'residence and for rebuilding. Suit for eviGtion was fjtedbytheplaJntiff/respondents.As per pleading of the appejiarits, appellant No. 1 is not a member of Joint family of appeliants No 2 & 3. House is not old and is not in Q dilapidated condition. The pteintiffs/respondents are in possession of alternate suitabJe accommodation and they are residing in the aitemate accommodation. House is not requjre-d for rebuijdjng or for bonafsde need of the plaintsffs/respondents, Quantum of re-nt and ainount of rent was disputed. On the basis of oyerments made by the partles, the trla! Court framed the issues and after affording an opportunjty of hearing to the.parties hos decreed the suit for Qrrears of rent, but dented. the .plaim of eyiction on theground of 12 (1) (a), (e) &. (h) of Chhatt-isgarh Accommodation Contro! Act, 1961 (in short'the Act, 1961'). 5- Judgment and decree was chatlenged by the respondents before the bwer appelSate Court and lower appelSate Court has modlfied the iadgment Qnd decree of the trsal court and passed the decree of eviction against the present appellcints. 6. I have heard learned counsel for the parties and perused the smpugned Judgment and decree and records of the Courts below< 7. Learned counsel for the c^peilants argued that the appellants had especsaily ralsed the dlspute regarding Itie rent and the Court was under obligation to decide 1+ie dlspute of rent before decsding cxny other issues and untess the dlspu-te of rent is decided, any decree on the ground of Section 12 (1) (a) of the Act, 1961|would not be possible. Learned counsel further argued that the present QppeJSants are residlng in the house owned by them which ss sufflcient for tiiejr1 ressdcnce. The appeibnts have not complled with the mandatory requirewents of Sectlon 12 (1) (h) of -riie Act, 1961 and have not fiSed any estimate and plans required under Section 12 (7) of the Act/ 196L The piaintlffs/resppndents are requlred to prove bonafide need Instead of bare need, but the respQndents have utteriy fQlSed to prove 1+ieir bonafide 'need. • ' Learned • counsei . also argued that the plaintrff/respondent No.l hos admitted in hss eyidence that after partition of the present premises, the accommodatsonsu?t wi!l be requjred for him and his family- It shows that requjrement is not on the doite of flling <5f the suit; but requirement is future requirement which is not consonant with the statutory provisions of 'rtie Act, 1961. 8. Learned counse! for the appel!ants placed reliance in 1+ie matter of Chhogiol y. Idol of BhagwQn Shri Satyanapayan Throij^h Piyari KomoSdas gunj, NorQyoi^Ics Bairagi in which ful! ^nch oflfse High Court of Madhya Pmdesh has held that if the disput®as to the rote and awount of r%int payGble by hiw in the written statement, that wouid be sufficient for purposes of the sub-section- A dispute so raised wilS 1A1K 1976 MF 5 ^^3s^iS«^'SSSS^^S^t 9. make it oblsgatory^ on the Court to fixthe reasonable provisional rent. Learned counsel fur1+»erplaced reisance In the matter of N.R.Narayan Swcmy v. B.Frands Jagan2 in which the Apex Courthas hsid that genuineness and bona fide need is to be. decided on the basis of requlrement on 1+ie date of the fresh suit. Learned coun^! olso pbced r^-Iiance in th©matter of Deersa Nath v\ Poorars UsS sn which it has been he!d by the Apex Court that findlng of fact must be consonarst ^ith the statutory mandate. On the other hand, learned counse! for the respondents argued that present respondents haye proved the bona fide need of 1+ie suit accommodation for thejr residence and construction and also deposjted 1+ie rent, thoygh they haye raised the dispute of rate of rent, but even he has not deposited the agreed rentor admitted rent by the tenant, therefore, no protection is avaihble to them for eviction under Sectlon 12 (1) (a) of 1fie Act, 1961. The respondents haye fij®clthe suit for present need and not for future need. The respondents/piajntjffs have specificaljy deposed that in fyture after partition took place, the premises wii! requsre also for another need, 10. In order to appreciate the grounds ralsed by the parties and to declde the sybstantial questions of law formubted for decision of thls appeal, I have examlned the eyidence adduced on behaif of 1+ie parties, At the outset, pleading and evidence adduced on beha!f of the partles are sufficlent for drawsng inference that 1ti@ present respondents are Sandbrds and father of appelbnt No.l Ramkumar jChare was tenant (wd after death of Ramkumar1 Khare .present appellants are tenQnts. Present appeSIant No.l has speclflcaily pleaded in para-3 of written Staterpent that deceased Ramkumar has neyer paid rent more than Rs.40/- per month. The appetJants have denied the fact -that rate of 2(2001)6SCC473 '(2001) 5 SCC 705 - Ki&,. rent was Rs-50/- per month. Records of the Courts below reveal that dispute of rent has not been declded by the trial Court. I!, In the matl-er of Chhogla! (sypra), Fu!i Bench of liie High Court of Madhya Pradesh has he!d that unless the dispute as to the rate and amount of rent is decided, the operatbn of Section 13 (1) of 1+ie Act 1961 will not come into play. 12. In the present case, the appeitants have pleaded that thejr father has not pajd rent more than Rs.40/- per month and rent was no+ Rs.50/- per mon1ti.It appears from their pteading that according to them/ rent was Rs.40/- per month, but this is unfortunate c<xse in which the oppelbnts have not pdd rent on the rate, even as ctalmed and agreed by them. 13. The Act, 1961 is benefjcla! iegislation and it protects the tenant from frjyoSous iitigation, but does not authorize the tenant to p!ay any mischtef in the garb of any provisions of the Act. Section 13 (2) of the Act, 1961 reads as under:;- "13(2) Ifsn any sult or proceeding referTed to in sub-section (1); there is any dispute as to the amount of rent payable by 1fie tenantythe court shalS, on apiea made either by landiord or tenarst m that behoJf which .shai! be taken at 1^e earllest opportunity durin9 such suat or proceedsng, fix a reasonabte provisionaJ rent, sn relation to the accommodation/ to be depossted, or pdd in accordance with the provssions of sub- section (1) and no Court shall, save for reasons to be recorded in wrjting, entertdn any plea on this account at the subsequent stage. Section 13(2) of the Act, 1961 provldes -rtiat any dispute as to the amount of rent paYcbie by the tenant, the court shaS!/ on a ptea made either by landJord or tenant In that behalf which shall be taken at the eariiest opportunity during pendency of such suit or proceeding, flx a reasonable proylsionat rent. It cast duty upon the Court to flx a'reasonable proyjsiona! rent, but does not debar from paying rent a9rleed by him or which he used fo poy or 'has paid regubrly under the garb of such dispute as to the rate and amount of rent. 18. The Court is under obligation to fixan interim or proyisionai rent In case of dispyte of amount of rent and tenants are aiso under obllgation to show l^eir bona fidy depQsited the rent as agreed/admltt'ed by them In accordance wlth Section 13 (1) of the ^ct, 1961. While deciding the provisional or interlm rent/the Courts must be causes and arerequlred to decide the dispute promptlY and in case of agreed or admitted rate of rent or arrtount of rent, the Court shouSd direct the tenant to deposit agreed/admstt'ed rent or rent on the rate which they used to pay in accordQnce with Section 13 (1) of the Act, 1961 til! flxation of proyisionQl/interim rent. 19. The present respondents are landSords aid present appellQnts are tenants. The present respondent No<l Prstpal Singh Bagga has specificaJly deposed in his eyidence that he has purchased the house. Other tenants had vacated the tenanted portlon. Presently he and his fQmlly are ressdin9 In the parentaS housewhich is not sujtable for hiw- Her old mother is not in a position to mount up stair on the ground of jnsufflciency of parental accommodation. He has purchased the present accommodatson for his residence/ He has cate9orica!ly deposed that he will use the accommodatson^ In para -12 of his evidence/he has deposed that he wiil use tenanted part for residenc^ of his famijy and hjs mother and he wi!l use another part for go-down of household and commercsal artictes, He has also deposed that sf his brother wll! separate him, he would require to start his anQther business. Appeltonts witness Madhu (PW-2) has deposed that house is in question in a diJapidated condition. The appeltants wltness Ravi Kumar Khare and Satendra Kumar Khare have depo^d that the present accommodatson is not in a dilapsdated condition and it is in good conditlon, They have expended much amount for roof, tape, electric.and fboring- Jhey haye admitted that other tenants have "^, -~/! v< <-•-.. vacated their tenanted portion. The piaintiffs and their witnesses have not deposed or adduced any evidence to show that they have prepared the plans for rebuildlng and they have submitfred the estimate and plans as required under sub-section (7) of Sectson 12 of the Act, 1961. 20. Sub-sectlon (7) of Section 12 of the Act, 1961 reads as under;- "(7) No order for the eviction of a tenant shall be made on the ground specified in cicuse (h) of sub-section (l): unless 1+ie Court is satisfied Itiat the proposed reconstruction wiSi not radically after the purpose for which the accommodation was iet or that radicGl aJternation is in the public interest, and that the pians and estirrtGtes of such reconstruction have been properly prepared and that necessary funds for the purpose areavGtiable with the landbrd, 21. In the present case, pla'ntjff/respondent No.l has neither pieaded nor adduced any evjdence to show that he has prepared pbns and estimate of such reconstruction and he Is having sufficient fund for reconstruction. In the absence of esscntiaJ requirement of Section 12 (1) 0^) of the Act, 1961, respondent No.l Js not entstled foreviction on the ground of reconstruction. 22. As regards the eyiction oh the ground of bonaflde need for residence of the pSaintiffs/respondents is concerned/ respondent NQ«I Pritpal Singh (PW-1) has specificaJSy depo^d that presently he is residing in joint familyQccomsnodatlon which is not suffident for him and hls famHy. He has spccificoljy deposed in para 12 of his eyidence that presently one room and one common drawing room is sn his Joint possession. This fact has not been controverted by the c^pellants by adducing any evldence to show that respondent No<l is m possession of reasonable sufficient alterndte accommodatlon in Rajnandgaon city. 23. Burden to prove the fact that respondent No.l is not jn possession of syttabie dternate vacant accommodation was on the pJQjntsff/respondents. By adducing aforesaid eyidence, respondent No.l has dischdy^ged-hls onus ond onus was shifted upon the appellants ^, 'I-^ 24. 25. 26. to disprove the afore^xsd fact, but the appeltants have not adduc^d any eyidence to shift the onus to disprove the afQresaid fac+ In absence of any such evidence, evjdence of respondent No.l ss sufficient for proying the fact that the respondent is not havsng any suitabiealtemQtevacantaccommodation in Rajnandgaon cit/, As regdrds the bonafide need of 1+ie suit accommodation is concerned respondent No.l has specifically deposed that after purchasing the acGoi^modation at his instanc^, other tenants have' yacated 1+ie tenanted accommodation and they are lying vacant. There will be sufficient to sotssfy the need of tandbrd aiong w$1+i the pre^nt sust occommodation. Plasntiff/respondent No.l has purcha^^d the suit house. He succeeded in yacation of other tenanted portion. He has not given other tenanted portion in rent. It shows the bonafide need of the plaintiffs and need is not bare. Respondent No.l has deposed that he wil! use some portion for keepin9 some article of his business, It reyea!s that masnly the accommodotion is required for residence and small portion would be used for keeping his artscle of business. As held by the Apex Court in the spatt-er of N.R.Nar'ay<an SwGmy (sypra)/the ground for eviction for residence and keeping books by bndterd who is adyocote is a ground of bonafide need of residence and not composite ne^d< The dedsion rendered in case of N,R.NcirQyan SwQmy (suprQ) is applicable in the present case. In the matter of Deena Nath (sypra)/the Apex Court has held that the requirement of 1+ie landbrd must be consonant wi1fi thestatutory mandate. In the aforesaid case, the Apex Court has also held that sn case of a'ternate VQcant suitable accommodation, the tondbrd is not entitted for evjction. In the present case, the Jandlord is not in possession of dternate suitable vacant accommodation to satisfy his need, therefore. the case of beersa Nath (aipro) is distinguishable on the facts of the present case. t--_,, •^....,:}: - ^-^: w 27. 28. 29. ^ In the present case/ the requirement is based on present need and not for future need. The landlbrd ¥jho has purchased the suit accommodation for his residence shou!d not bc deprived of hjs enjoyment in tiie suit accommodation unless need ?s not bonafide and eviction is sought with an ulterior motive. The evidence adduced on behaif of respondent No.l is sufficiant to prove the bonafide need of th@ Jandbrd for residence of him and hss family and he is not in possession of alternate sultable vacant accommodation +o satlsfy the need, but evidence is not sufficient to prove need under Section 12 (1) (h) of the Act, 1961. No provisJona! rent has be^n fixed by the Courts below; therefore, the respondents are not entitled for evictson under the ground mentloned in Section 12 (l) (a) of the Act, 1961. The bwer appeilate Court has arriyed at a wrong concbsjon by deciding the issue . of evictlon under Section 12 (1) (a) & (h) of the Act, 1961, but fjnding rehting to ground avaiSabie under Section 12 (1) ^) of the Act, 1961 is based on the evidence sustainable under the bw For the foregoing reQSons, substantial question of law formuSated for decision of this appeal is partty decided as positsve and declared that the judgmentand decree on the basls of findjng relatsng to eyictson under Section 12 (1) (e) of the Act, 1961 is not contrary to !aw and facts, but jydgment and decre^ on 1+ie basis of flnding relating to Section 12 (1) (a) & (h) of the Act, 1961 is contrary to bw and facts. On the basis of aforesaid finding on 1fse substantiai question of law, the appeal Is partly albwed, Judgment and decree of evsction on the ground of bonafide need for residence under Section 12 (1) (e) is hereby maintalned and Judgment and decree on the ground of Section 12 (1) (a) ^ Qi) of the Act, 1961 is lisble to be set aside and it is hereby set aside. Parties sha!! bear costs of the appea! as we!! as costs of the sui^ Advocate fee as per schedule, 30. Decree be drawn up dGcordin^ly. ^, fr\ Sd/- T.P. Sharma Judge ^