Dinesh Kumar vs Yusuf Ali

2. Facts and circumstances giving rise to this appeal are that the appellant-tenant was inducted by the respondent-landlord on 1.10.1978 in a shop in house No. 83, Main Street, Mhow for a non- residential purpose on a monthly rent of Rs.150/-. The respondent- landlord enhanced the rent from time to time and ultimately it was enhanced on 1.3.1995 to the extent of Rs.700/-p.m. The respondent-landlord had taken a sum of Rs.35,000/- as loan from the appellant-tenant. Some amount therefrom was to be adjusted towards a part of monthly rent. Respondent-landlord filed suit No.30A/1999 on 1.4.1999 for eviction of the appellant on the grounds of nuisance and bone fide requirement for himself contending that he was carrying on business of plastic goods and shoes in a rented `Gumti' measuring 3 ft. x 4 ft. on a Nalla. Respondent was in need of the disputed shop for carrying on his business alongwith his son Zulfikar Ali. Parties exchanged the affidavits and examined large number of witnesses in support of their respective claims before the Trial Court. The Trial Court, vide judgment and decree dated 13.12.2002, decreed the suit for eviction under Section 12(1)(f) of M.P. Accommodation Control Act, 1961 (hereinafter referred to as the `Act 1961') on the ground of bona fide need, however, did not accept the plea of nuisance.

3. Being aggrieved, the appellant preferred the First Appeal No.2/2003 before the First Additional District Judge, Mhow and the same was allowed vide judgment and decree dated 16.10.2003 on the ground that the landlord had enhanced the rent from time to time; his son had been in employment in Dubai, therefore, the bona fide need was a pretext to enhance the rent or evict the tenant.

27. The admitted facts of the case are that the suit property, 18 ft. x 14 ft. i.e. 152 Sq.ft., is situated at a main road in the market. The premises in which the landlord is running his business is 3 ft. x 4 ft. at a monthly rent of Rs. 75/-. The `Gumti' is situated on the Nalla on the land of Cantonment Board. The said `Gumti' belongs to one Mohd. Hussain who had established it by encroaching upon the land of the Cantonment Board. Son of the landlord, namely, Zulfikar Ali is in service in Dubai for last several years. The suit premises was earlier on rent with Dental Surgeon Dr. Sharma from 1970 to 1978 who vacated it considering the need of the landlord. After eviction of Dr. Sharma, it was given on rent to the appellant at a monthly rent of Rs.150/-p.m. The rent was enhanced to the tune of Rs.400/-p.m. in 1990, to Rs.500/-p.m in 1991 and further enhanced to Rs.700/- p.m. on 1.3.1995. Landlord had taken loan of Rs.35,000/- from the tenant and a part of it was to be adjusted toward the monthly rent for the said premises.

28. The Trial Court after considering the pleadings framed as many as 10 issues. However, the relevant issues had been Issue Nos. 1 and 3 regarding the bona fide and real need of the landlord. After considering the evidence on record including increase in rent from time to time and the fact that after evicting Dr. Sharma, Dental Surgeon, in 1978, the landlord in spite of starting his business in the suit premises rented it out to the appellant, came to the conclusion that need of the landlord was bona fide as he was running his business on a rented premises having a very small area at an unhygienic place i.e. platform on a Nalla. No other alternative or convenient place was available to him to shift/start his business and there had been no increase in rent of the suit premises after 1995. The said findings have been disturbed by the First Appellate Court mainly on the ground that the landlord did not require the suit premises for running his business, rather it was a pretext to increase the rent as rent had been increased from time to time and the landlord did not occupy the premises after being vacated by Dr. Sharma, Dentist. These circumstances made it clear that the landlord wanted to achieve the ulterior purpose. The landlord could be the best Judge of his need but he cannot be an arbitrary dictator. There was no evidence to show that his son Zulfikar Ali was interested to come back and join his father in business.

31. In such a fact-situation, we do not find any fault with the judgment of the High Court that it has committed an error reaching the conclusion that finding recorded by the First Appellate Court were perverse.

33. Thus, in order to meet the ends of justice the appeal is allowed partly. The landlord/respondent shall recover possession of half of the area of the premises dividing the same either on the side of "Bohara Masjid" or on the other side.

Appeal stands disposed of accordingly. No costs.