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PETITIONER: PREM NARAYAN BARCHHIHA

       Vs.

RESPONDENT: HAKIMUDDIN SAIFI

DATE OF JUDGMENT:       31/07/1999

BENCH: V.N.Khare, Syed Shah Mohammed Quadri,

JUDGMENT:

     SYED SHAH MOHAMMED QUADRI,J.

     These   appeals,  by  special   leave,  are  from  the judgments and decrees of the High Court of Madhya Pradesh at Jabalpur  in  Second Appeal Nos.408/89 and 409/89 passed  on 9.7.1997.   The appellant is the landlord and the respondent is  the  tenant  of two shops in house  Nos.23/507  and  508 situated  at  Azad  Chowk   Handipara,  Raipur  (hereinafter referred to as ’suit premises’).

     On  2.5.85, the appellant filed two suits in the Court of IInd Civil Judge Class II, Raipur, against the respondent for  his  eviction from the suit premises on the  ground  of bona fide requirement of his unemployed son for establishing a  Provision  Store  under Section 12(1)(f)  of  the  Madhya Pradesh  Accommodation  Control  Act, 1961 (for  short  ’the Act’).   He  stated  that he had no  alternative  reasonable suitable  non-  residential  accommodation in  the  city  of Raipur  for the said purpose.  The respondent’s plea was one of  denial of bona fide requirement of the landlord.   After framing  necessary  issues and considering the  evidence  on record,  the learned Trial Judge came to the conclusion that the  appellant failed to prove his bona fide requirement and observed that he had only a desire to establish the business for  his  son.   However, he recorded the finding  that  the appellant  had  no reasonable suitable accommodation in  the Raipur  city.  Consequently both the suits were dismissed by the  learned Trial Judge by a Common judgment on January 27, 1987.   Dissatisfied  with that judgment and decree  of  the Trial  Court the appellant filed two appeals in the Court of Ist  Additional Distt.  Judge, Raipur.  The learned District Judge, on appreciating the evidence, held that the appellant had proved bona fide requirement for establishing a business for  his  son.   In that view of the matter he  allowed  the appeals  and  decreed  the suits against the  respondent  on September  6,1989.  The tenant questioned the correctness of the  said judgment and decree of the learned District  Judge before the High Court in Second Appeal Nos.408- 409 of 1989.

     The High Court, at the time of admission of the Second Appeals,   framed   the  following   question  of  law   for determination :-

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     "Whether  the Court below was justified in granting  a decree  under  Section 12(1)(f) of the  M.P.   Accommodation Control  Act, 1961, under the facts and circumstances of the case?"

     At  the stage of final hearing of the Second  Appeals, the  following  additional substantial question of  law  was formulated :-

     "Whether  respondent has proved all the ingredients of Section  12(1)(f)  of the M.P.  Accommodation  Control  Act, 1961  in  order  to  get a decree of  eviction  against  the appellant?"

     The  answer  to these questions recorded by  the  High Court,  is  that  the  appellant failed  to  prove  all  the ingredients  of  Section 12(1)(f) of the Act and  his  claim that  he  bona  fide required the suit premises,  cannot  be sustained  as  he  suppressed  the   fact  that  he  was  in possession  of  an alternative vacant accommodation  in  the same  building.  The High Court thus allowed the appeals  of the respondent and dismissed both the suits of the appellant for the same reasons but by separate judgments dated 9.7.97. It is against those judgments and decrees of the High Court, the present appeals are filed.  Mr.  S.S.  Khanduja, learned counsel  for  the appellant, contended that the  High  Court fell  into  an  error in re-appreciating  the  evidence  and answering  the  questions  in  the negative  -  against  the appellant.   The  High  Court  should  have,  submitted  the learned  counsel,  recorded answer to the questions  on  the basis of the facts found by the Ist Appellate Court.

     Mr.B.S.Banthia,  learned  counsel  appearing  for  the respondent,  argued  that   the  appellant/landlord,  before filing  the  eviction  petition, had in his  possession  two residential portions of the house which he let out to others but  he  did  not plead that he was in possession  of  other accommodation   and   that   it   was   not   suitable   for non-residential  purposes  so  the High Court was  right  in coming  to  the conclusion that as the appellant  suppressed the  facts his plea for bona fide personal requirement could not be accepted.

     On  the contention urged before us, the question  that needs to be adverted to is :-

     "Whether  it  is  incumbent upon a  landlord,  seeking eviction  of  the accommodation let out for  non-residential purposes under Section 12(1)(f) of the Act to disclose if he is  in  possession of residential accommodation and  further prove that it is not suitable for non-residential purposes."

     The  definition of ’accommodation’ in Section 2(a)  of the Act, reads as under :-

     "2(a)."accommodation"  means any building or part of a building,   whether  residential  or   non-residential   and includes -

     (i)  any land which is not being used for agricultural purposes;

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     (ii)  garden, grounds, garages and outhouses, if  any, appurtenant to such building or part of the building;

     (iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;

     (iv) any furniture supplied by the landlord for use in such building or part of a building."

     The  word ’accommodation’ takes in both residential as well  as non-residential building or part of a building.  In Section 12(1)(e)&(f), the expressions ’accommodation let for residential   purposes’   and     ’accommodation   let   for non-residential  purposes’ are used distinctly in clear  and unmistakable terms.

     Now, it will be apt to refer to Clauses (e) and (f) of Section 12(1) of the Act which run as under :

     "12(1).   Restriction  on eviction of tenants  -  (1). Notwithstanding  anything  to the contrary contained in  any other  law or contract, no suit shall be filed in any  Civil Court   against  a  tenant  for   his  eviction   from   any accommodation except on one or more of the following grounds only namely :-

     (a) to (d).  **** **** ****

     (e)  that  the  accommodation   let  for   residential purposes  is  required  bona  fide   by  the  landlord   for occupation  as a residence for himself or for any member  of his family, if he is the owner thereof or for any person for whose  benefit  the  accommodation  is  held  and  that  the landlord  or  such person has no other  reasonably  suitable residential  accommodation  of his own in his occupation  in the city or town concerned;

     (f)  that  the accommodation let for non-  residential purposes  is  required  bona fide by the  landlord  for  the purpose  of continuing or starting his business or that  any of  his major sons or unmarried daughters if he is the owner thereof   or   for  any  person   for  whose   benefit   the accommodation  is held and that the landlord or such  person has   no   other     reasonably   suitable   non-residential accommodation  of  his own in his occupation in the city  or town concerned."

     A  plain  reading of the provisions, extracted  above, makes  it  clear that the Act maintains a clear  distinction between  the accommodation let for residential purposes  and the  accommodation let for non-residential purposes.  Clause (e),  deals  with  ground  of  eviction  of  a  tenant  from accommodation  let  for  residential purposes.   Under  this clause  eviction  of a tenant can be sought if the  landlord bona  fide  requires the accommodation let  for  residential purposes  for  occupation as a residence for himself or  for any  member of his family, provided he is the owner  thereof or  for  any person for whose benefit the  accommodation  is held  and  that  the landlord or such person  has  no  other reasonably  suitable residential accommodation of his own in his  occupation  in the city or town concerned.  Clause  (f) which  deals  with  ground  of eviction  of  a  tenant  from accommodation  let for non-residential purposes and provides that  the  tenant  can be evicted if the  landlord  requires

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accommodation let for non-residential purposes bona fide for the  purpose of continuing or starting his business or  that of any of his major sons or unmarried daughters if he is the owner  thereof  or  for  any person for  whose  benefit  the accommodation  is held and that the landlord or such  person has   no   other     reasonably   suitable   non-residential accommodation  of  his own in his occupation in the city  or town  concerned.   They  [clauses  (e)  and  (f)]  are  thus distinct   and   independent    grounds   having   different ingredients  and are thus mutually exclusive.  That, this is the  purport  of the said provisions, has been  endorsed  by this Court in Firm Panjumal Daulatram Vs.  Sakhi Gopal [1977 (3)  SCC  284] and in Hasmat Rai and another Vs.   Raghunath Prasad [AIR 1981 SC 1711].

     Now  the ingredients of clause (f), with which we  are concerned here, are :

     (1)  the accommodation from which the tenant is sought to be evicted has been let out for non-residential purposes;

     (2)  the  landlord is the owner thereof  and  requires that  accommodation bona fide for the purpose of  continuing or  starting (i) his business or (ii) business of any of his major sons or unmarried daughters;  or

     (3)  the  landlord requires the accommodation for  any person  for whose benefit the accommodation is held by  him; and

     (4)  the  landlord  or  such   person  has  no   other reasonably suitable non-residential accommodation of his own in his occupation in the city/town concerned.

     Admittedly,   here  requirements  (1)   and  (2)   are satisfied  (2 and 3 are alternative).  In regard to (4) what is  necessary for the appellant is to satisfy the Court/Rent Controller  that  he  or such person for  whom  eviction  is sought,  has  no other reasonably  suitable  non-residential accommodation  of  his own in his occupation in the city  or town  concerned.   On  this aspect the  learned  Distt.Judge correctly  recorded the finding in favour of the  appellant. It  follows  that the landlord seeking eviction of a  tenant from  non-residential  accommodation on the ground  that  he required  the same for the purpose of continuing or starting his  business  or  that any of his major sons  or  unmarried daughters,  has  to  prove that he has no  other  reasonably suitable  non-  residential accommodation of his own in  his occupation  in  the  city  or town.  It is no  part  of  the obligation  of  the  landlord seeking eviction of  a  tenant under  Clause (f) of Section 12(1) of the Act to aver in his plaint/petition  the  facts  that  he is  in  occupation  of residential  accommodation  and that it is not suitable  for non-residential   purposes.   These  facts   are   not   the requirement  of  Clause(f) and are irrelevant to make out  a case  under that clause.  To read such a requirement in  the said  clause  (f)  would  amount to doing  violence  to  the language of the clause nay rewriting the clause which is far beyond  the principle of ironout the creases and is  clearly impermissible.

     It  is  futile  to  contend that  accommodation  is  a neutral  word taking in its fold both residential as well as non-residential purposes, the landlord ought to disclose the residential accommodation in his possession and show that it

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is  not  reasonably suitable for non-  residential  purposes when he is seeking eviction of the tenant from accommodation let  for non-residential purposes.  The Court cannot  burden the  landlord  with  additional   conditions  of  disclosing particulars  of residential accommodation in his  possession and  proving  that  it  is   not  reasonably  suitable   for non-residential  purposes.  Non-suiting him on such  grounds will mean non-suiting him on extraneous grounds.  It follows that  the appellant has fulfilled the fourth requirement  of clause (f) also.

     It  is, however, contended that there is no  provision in   the  Act  which  prohibits   use  of  the   residential accommodation  let for non- residential purposes, therefore, it  is  the  duty  of  the landlord to show  if  he  has  in possession  residential  accommodation,  even   when  he  is seeking    eviction   of     tenant   for    non-residential accommodation.   Neither  on principle nor on authority  can such a contention be countenanced.  We have no hesitation in rejecting the same.

     From  the  above  discussion,  it  follows  that   the appellant  has satisfied all the requirements of clause  (f) of  Section  12(1) of the Act.  The impugned  judgments  and decrees  of  the High Court on this aspect  are,  therefore, erroneous and are liable to be set aside.

     We  accordingly  set aside the impugned judgments  and decrees  of the High Court and restore the orders of the Ist Appellate  Court dated 6.9.89.  The appeals are allowed  and the  suits  of the appellant for eviction of the  respondent from  suit premises are decreed.  There shall be no order as to costs.

     ........................J.  (V.N.Khare)

     ........................J.    (Syed    Shah   Mohammed Quadri) New Delhi, August 3, 1999.

     IN   THE  SUPREME  COURT  OF  INDIA  CIVIL   APPELLATE JURISDICTION CIVIL APPEAL NOS.999-1000 OF 1998

     Prem N.Barchhiha ...  Appellant

     versus

     Hakimuddin Saifi ...  Respondent

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     Draft  Judgment  in the above matter is sent  herewith for perusal and kind consideration.