Case: Hasmat Rai &amp; Anr Vs. Raghunath Prasad

2. Respondent-landlord filed a suit for recovery of possession of premises being a small shop admeasuring 7 feet X 22 feet forming part of a big non-residential building situated in Sadar Bazaar, Bilaspur town in Madhya Pradesh on two grounds, to wit : (i) that he (landlord) intended to open a medicine shop and he had no other reasonably suitable accomodation for the same in the town; and (ii) that he (landlord) required the suit building for the purpose of reconstruction and repairs which could not be carried out unless it was vacated by the defendant. The tenant resisted the suit pointing out that the landlord on his own admission as set out in plaint para 4 was in possession of a major portion of a non-residential building which he acquired possession from the firm of Goraldas Paramanand which accomodation was sufficient for starting the business of Chemists and Druggists shop. It was also contended that the building was not in a dilapidated condition and did not need reconstruction and repairs3. The trial Court recorded a finding that the building was in a dilapidated condition and reconstruction of it was essential and the landlord had sufficient funds to undertake reconstruction. On the question of personal requirement of plaintiff to start medicine shop, the trial Court recorded a finding that in the front portion of the building landlord would start his business as Chemists and Druggists and the rear of the building would be utilized by him for his residence. It was further held that as the landlords requirement was a composite one in that he wanted to reconstruct the building and then use the whole of it for himself, therefore, the tenant was not entitled to be inducted in the reconstructed building which he would have been entitled to claim under Section 18 of the Madhya Pradesh Accommodation Control Act, 1961 (Act for short)4. An appeal by the tenant to the District Court elicited in para 20 a finding that though the landlord was studying he might choose his career for business after he completed his education and he had got Rs. 8000 in a fixed deposit account in a bank and even though he obtained a decree against the firm of M/s. Goraldas Parmanand he had not got actual possession as the litigation was still pending and, therefore, the plaintiffs requirement of the whole building was established. The finding that the house was in dilapidated condition and required reconstruction was affirmed5. When the matter reached the High Court in second appeal by the tenant and application under Order VI, Rule 17,Code of Civil Procedure, was made praying for an amendment to the written statement alleging that the firm Goraldas Parmanand has vacated the whole of the remaining portion of the building excluding the premises in possession of the tenant measuring 7 feet X 22 feet and that the plaintiff has obtained actual possession of the same and if this aspect was taken into consideration the plaintiff-landlord would not be entitled to a decree for eviction under Section 12(1)(f) of the Act. The High Court rejected the application observing that the adjoining portion occupied by firm Goraldas Parmanand was vacated by the firm as far back as in the year 1972 and therefore the application for amendment filed 3 1/2 years after the filing of the appeal must be rejected on the ground of delay and laches. Further, despite judgment of this Court in Pasupuleti Venkateswarlu v. Motor and General Traders ((1975) 1 SCC 770   : (1975) 3 SCR 958  ), the High Court felt considerable hesitation in taking note of this event subsequent to the passing of the decree for eviction by the trial Court because of its earlier decision in Taramal v. Laxman Sewak (1971 MP LJ 888), in which it was held that the definition of tenant in the Act would not enable a tenant, though in possession but against whom a decree or order for eviction has been made, to invite the court to take notice of events subsequent to the passing of the decree for eviction by the trial Court. The decision of this Court was distinguished on the ground that the definition of the expression tenant in Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, was somewhat different and was wide enough to include such persons. The High Court accordingly rejected the application and dismissed the second appeal confirming the decree for eviction

Reasoning:
10. Section 12 starts with a non obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of Section 12. It is thus an enabling section. In order to avail of the benefit conferred by Section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlord in this case seeks eviction of the tenant under Section 12(1)(f). He must, therefore, establish (i) that he requires bona fide possession of a building let for non-residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirements of Section 12(1)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings requires that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under Section 12(1)(f) the court after satisfying itself that there are proper pleadings must frame two issues namely (i) whether the plaintiff-landlord proves that he bona fide requires possession of a building let to the tenant for non-residential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non-residential accommodation of his own in the city or town concerned. Without elaborating we must notice a well-established proposition that any amount of proof offered without pleadings is generally of no relevance12. In the second appeal in the High Court the defendant-appellant moved an application under Order VI, Rule 17, for amendment of the written statement for elaborating what was already stated that not only the decree obtained by the plaintiff against the adjoining tenant of the same building namely firm of M/s. Goraldas Parmanand had become final but the plaintiff in execution of the decree way back in 1972 obtained actual possession of the whole of the area occupied by that firm and that forms major portion of the whole building. This application, though, in our opinion, (sic) to be wholly superfluous in view of the pleadings hereinbefore set out and in view of the fact that the burden of proof of establishing that the landlord was not in possession of a reasonably suitable accommodation in the same town was on the plaintiff was rejected on untenable ground that the defendant-appellant was guilty of delay and laches. This application for amendment deserves to be granted, and we grant the same. What is its impact ? Even while rejecting the application the High Court in terms observed in para 4 of its judgment as under :"Adjoining portion was vacated by firm Goraldas Parmanand as far back as in the year 1972".The High Court thus had before it a fact beyond dispute and beyond controversy that the major portion of the building was vacated by the adjoining tenant way back in 1972. This was an uncontroverted fact. Therefore remand on this point is an exercise in futility because the fact alleged in the application for amendment is admitted. After rejecting the application on wholly untenable ground the High Court in 1976 affirmed the finding wholly contrary to record as available at that stage that the plaintiff-landlord had no other reasonably suitable non-residential accommodation of his own in his occupation in the city even though on landlords own admission he had acquired vacant possession of a major portion of the building let for non-residential purpose as far back as 1972. In the course of hearing we were repeatedly told that the finding of facts are sacrosanct. The finding of fact ignoring in controvertible admitted position which would non-suit the plaintiff if upheld would be travesty of justice. The burden being on the plaintiff to show that he had no other reasonably suitable accommodation for carrying on the business which he wanted to start in the suit premises, it was for the plaintiff to show that he had not acquired possession from firm Goraldas Parmanand. Alternatively the plaintiff should have shown that the said adjacent accommodation was not reasonably suitable for the business he wanted to start. He had done neither. On the contrary plaintiff has admittedly adopted a position in the plaint that he not only wanted suit premises but also the adjoining premises of which he had obtained possession for starting his business. In such a situation if the High Court had kept in view that the plaintiff had already with him viz. possession of a building having 18 feet frontage on the main road and 90 feet depth plus portion at the back of the suit premises in his possession it would have to come to an affirmative conclusion that the plaintiff had sufficient accommodation for starting his business as a Chemists and Druggists. It was nowhere pointed out by the plaintiff that the shop of Chemists and Druggists or a medicine shop would require frontage of more than 18 feet. 18 feet frontage on a main road in a city like Bilaspur is sufficiently attractive and accommodating. The depth of the shop as given out to us being 90 feet; therefore landlord had now in his possession shop admeasuring 18 feet X 90 feet plus the area of 7 feet X 90 feet at the back of the suit premises being part of the same building. Would this not provide more than ample accommodation to the plaintiff to start his business as a Chemists and Druggists ? Not one word had been said that the accommodation which is already in possession of the plaintiff is neither suitable nor reasonably suitable nor sufficient for starting his business. In fact the very stand of plaintiff-landlord as accepted by the High Court that some portion at the back would be utilised by landlord for residence would affirmatively establish that landlord has more than enough vacant accommodation in possession for starting his businessThere is an error apparent on the face of the record inasmuch as when the High Court was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant-tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent-landlord has obtained vacant possession of a major portion of the building which was in possession of M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court got over this dilemma by observing and by affirming the finding of the subordinate courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub-section (7) of Section 12 because such a composite user would not radically change the purpose for which the accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested. The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the ActThere is an error apparent on the face of the record inasmuch as when the High Court was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant-tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent-landlord has obtained vacant possession of a major portion of the building which was in possession of M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court got over this dilemma by observing and by affirming the finding of the subordinate courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub-section (7) of Section 12 because such a composite user would not radically change the purpose for which the accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested. The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the Act7. The landlord in this case seeks eviction of the tenant from a building let forl purpose. He can obtain possession either for continuing or starting his business. He was a student at the relevant time. He appeared to have completed his education thereafter. It is stated in the plaint unambiguously that he wanted start business by opening a medicine shop. In other words, he wanted to start a Chemists and Druggists shop. He must, therefore, show that he has not got in his possession a reasonably suitablel accommodation of his own in his occupation in the town of BilaspurIf the answer is in affirmative, thed has thus obtained vacant possession of the whole of the premises occupied by firm Goraldas Parmanand. Looking to the map annexed to the plaint and the evidence led in the case and the dimensions of the premises stated at the hearing of this appeal the area vacated by the previous tenant would be 18 feet X 90 feet plus portion at the back of the premises occupied by the present appellant which would be 7 feet X 68 feet and it has come in possession of the respondent.The last question would be if landlord obtained vacant possession subsequent to the decree passed against the presentt by the trial Court, whether the subsequent event could be noticed by the court for moulding the decree against the present