Dismissed

Manoj Kumar Sao and Ors. v. Ravishanker Awasthy

Chhattisgarh HC7 Sept 2009SA/7/2002

Case brief

AI extract

What is this about?

This judgment dismisses a second appeal against decrees for eviction. The High Court held that the lower courts correctly found the landlord had a bona fide need for the premises for non-residential business and the choice of specific accommodation was reasonable under the Accommodation Control Act.

What did the court decide?

The second appeal was dismissed with no order as to costs.

Manoj Kumar Sao and Ors. Vs Ravishanker Awasthy — Landlord and Tenant | Chhattisgarh HC (2009)

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HIGH^{COURTOFCHHATTISGARH} BILASPUR

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Second^{AggealNo.7of2002}

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APPELLANTS :

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Ma noj Kmaur Sao and^another

Versus

RESPONDENT^:

Ravishnkaar Awasthi

' Post for gronouncement^of judgment^on8 th Segtember‘²⁰⁰⁹

Sd/—

T.P. Sharma Judge

‘ *5 C/g

HIGH COURT OF CHHATTISGARHI BILASP‘UR

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Second Appeal No.7 of 2002

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APPELLANTS/:	1.	Manoj Kumar Sao, aged about 38
ns) (Defedant		years, S/‘o Shri Moolchand Sao, Proprietor Bharat Sales Agency Pratapganj Para, Hospital Road, Jagdalpur, Distt. Bastar, C' garh.‘
		Bharat Sales Agency, through Proprietor Manoj Kumar Sao, aged about 38 years, S/o Shri Moolchand Sao, Proprietor Bharat Sales Agency Pratapgan Para, Hospital Road, Jagdalpur, Distt. Bastar, C’ garh. I Versus
ESPONDENT/: (Plaintif§)‘ R		Ravishankar Awasthy, aged about 74 years, S/o Shri Ram Awatar Awasthy, R/o High School Road, Pratapganj Para, Jagdalpur, Distt. Bastar, C’ garh.

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{Second^{appealunderSection100oftheCodeofCivilProcedure,1908}}

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P resent:

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Mr. Sanjay K. Agrawal, counsel for the appellants.

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Mr. Prafull Bharat, counsel for the respondent.

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' Single Bench: Honble Mr. T.P. Sharma, J

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JUDGMENT

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(Delivered^{on8t“September,2009)}

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This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment & decree dated 2-11-2001 passedby^{the1“Additional} District Judge, Jagdalpur in Civil Appeal No.21—A/2001 modifying the judgment & decree dated 31-1-2001 passed by the lst Civil Judge Class~II, Jagdalpur in Civil Suit No.10A/2000, whereby learned Civil Judge Class-II has decreed the suit

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for possession and means profit in favour of the respondent.

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Following substantial question of law has been formulated for the —

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decision of this appeal: “Whether both the Courts below were justified in

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granting^{adecreeforevictionunderSection} 12(1)(f) of the C.G. Accommodation Control Act in favour of the respondent/plaintiff?”

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Brief facts leading to filing of this appeal, as pleaded by the respondent, are that the respondent is owner & landlord of the suit premises^{situatedatHospitalRoad,Jagdalpurandtheappellantsare}

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tenant.s The accommodation was leased out for non—residential purpose on monthly rent of Rs.550/—. The accommodation is required bona fide/y for the business of hardware & godown for the plaintiff^and his sons Notice was served upon the defendant but the defendant/appellant has not vacated the suit accommodation hence the suit for eJectment and arrears of rent was filed before the trial Court. Relationship of landlord & tenant is admitted by the appellant The appellant has pleaded in his written statement that in the year 1991 it was agreed between the parties^thatthe appellant Will enhance 10% rent after three years The appellant has paid rent regularly but therespondent is interested to enhance the rent three times. The respondent is not in the habit of issuing receipt of rent received by him The swt accommodation is not required bona fide/y The respondent/plaintiff is in possessmn of suitable alternate accommodation in the swt premises and also at Jagdalpur city which is sufficient to satisfy the need of the plaintiff. After affording opportunity of hearing to the parties, learned trial Court has decreed t he suit for eviction and arrears of rent, and the same has been affirmed in civil appeal by modifying the judgment & decree and instead of Rs.15/- per day means profit, Rs.550/per^monthmeans profit^wasawarded. . Judgment & decree of the lower appellate Court is challenged by the appellant on the ground that without any ground available under Section 12 (1) (f) of the Chhattisgarh AccommodatiOn Control Act, 1961 (for^short‘the Act’), the trial Court has decreed the suit and the lower appellate Court has affirmed the decree in appeal an d thereby committed illegality.

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. Counsel for the parties are heard Courts below perused

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Judgment^impugned and record of

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. Learned counsel for the appellants vehemently argued that at the time of filing of the suit and at the time of decree shop No 5 was vacant another shop No.11 also became vacant, but the respondent _ has given the said shops on rent and finally he sold shop No.11. Both the shops were Sufficient to satisfy the need of the plaintiff/ respondent for opening hardware shop & godown, however, the ‘ofrespondent has not started his business which shows that the need the plaintiff is only dire need & not bona fide need, and the

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respondent^hasfiled civil suit with a view to^enhancethe rent or to lease out the suit accommodation to another person at enhanced rate of rent.

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. On the other^hand, learned counsel for the respondent^arguedthat relationship of landlord^&tenant is not disputed The respondent/ plaintiff^has proved by cogent eVIdence^{thattheaccommodation} is required bona fidely for himself and his sons for the busmess of The alleged accommodation^shopNos5&11

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hardware & godown. were not sufficient^{tosatisfytheneedofthe} plaintiff,^the plaintiff i s the pest judge to decide as to which one would be sufficient to satisfy his need, choice of^the plaintiff^{mustberespected,andonce} the plaintiff/respondent makes out the case for eviction on the his claim cannot^{bedeniedonthe} groun d

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groun‘d‘of^{bonafideneed,} that he is having alternate accommodation. Learned counsel placed reliance in the matter of Akhileshwar Kumar and others v. Mustaqim and^{othersreported} in (2003) 1 SCC 462 in which the Apex Court^{hasheldthatonce} landlord proves^{hisbonafidestothe} objective satisfaction of the court of facts, the choice of accommodation^{whichwouldsatisfyhisrequirementshouldbeleftto} landlord’s subjective choice. Court cannot impose its own choice.

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, However, the^{landlord'schoicemustbereasonablenotwhimsical.}

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. In order to appreciate^{thecontentionsofthepartiesandtoarrivea} t a finding upon the substantial question of law, I have examined^the

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= Oral & documentary evidence adduced on behalf^ofthe parties.

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, Pramod Awasthi (PW—1), son of the plaintiff, has deposed that his father who is owner of the suit property has filed suit for eviction ' against the present appellant & co-tenant Elpayers Tailors, hi s b rother is in need of two shops for running hardware & sanitary business and no suitable accommodation is available in Jagdalpur city. Ravishankar^Awasthy (PW—2), the plaintiff, has also deposed same thing. Satish Awasthi (PW—3)^{hasalsodeposedthathewanted} to start the business of sanitary &^{hardwareandtwoshops} will be , required to^{satisfytheneed,theyhavefiled} suit for eviction^against Elpayers Tailors^whose the present^{appellantandanotherco—tenant} tenanted shops were adjoining and both the adjoining shops will satisfy theirneed.

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10.Pramod Awasthi (PW-1)^hasdeposed in para 62 of his evidence^that they ha ve proposed to t he appellant herein^{foralternatesp} ho wh ich faleln vacant duri ng teh penydenc of t he suit , b ut the appellant herein refused.

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11 .Per cotra,n the ap pellant herein has deposed in his evideenc that flyirst rate of retn w as Rs.250/then it was encednha to Rs.450/-, terathefer, it w as again en hanced to Rs.550/—. Aga,in in the year 1997a, th e plai ntiff tol d him tath he is rirequed to pa y Rs.65 0/— per mn.oth He has furtehr d eposed th at the adaccommotion is not ruredeqi for t he boan fid e nee d of rngunin the^business.

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‘2.1The respondent heerin hsa not deposed anytnghi to sgestug t hat smoe sho ps^boing elng to him hda fanlle vacan t during teh peenyndc

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'of theu‘suit or tha t he is in possessio n of aleratetn accomionmodat

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i sicuffient to satifys his need. Iernt alia, the plaintiff & his sons h ave cgoricateally deodpse^tht a the suit accomodationm is require d bona fidely fo r settin g up of teh bus iness of hardarwe & sanaitry by th e so n of th e plaintiff^namel y Stihas Aashy.wt

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1.This3 is the landlrd’so suit for^{evictiononthe} grdoun^o f hsi bnao fide ndee fro non-rsidtleenia pur pose. Evidence of the pntiff'slai wsitneses is suficienft to proev that teh plaintfif requires the s uit acmmncoodatio fsieor‘non-redntial puposer^forrunning t he b usiness of haredwar & straniay.

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14The. pla intiff is ow ner & lorandld of th e propert.y His bona fdie n eed muts be respecte.d He has proedv teh bona fi de ne ed fo r evicinto o f th e su it accomationmod for n-resdentialoni purse.po The evidecen addu ced on behalf of t he parties i s sufficiten to prove that t he rsepondent here in ruirseqe t he suit acmmoncodatio bon a fidely.

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15.As h eld b y the Ap ex Curto in the meattr of Ahileswkhar Kruma (ura),sp if once landlord proves h is bona fiesd to the objective satisfaction of the court of facts, the choice^{ofaccommodationshould} be left to landlord, but the landlord’s choice must be^{reasonablenot}

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l whimsical.

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C16.Evidence of the appellant herein Ts sufficient to prove the fact that l l the choice of the plaintiff is neither unreasonable nor whimsical. l After appreciating the evidence adduced on behalf of the parties, i both the Courts below have decreed the suit for eviction. Evidence

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adduced on behalf of the plaintiff is sufficient to prove the bona fide need of the piaintiff. Concurrent findings of fact of the two Courts beiow are neither unreasonable nor unjust. The finding relating to grant of decree for eviction under Section 12 (1) (f) of the Act in favour of the respondent by the Courts below are based on evidence.

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'17.For the foregoing reasons, the substantial question of law formulated for the decision of the appeal is decided as positive and as a result of the finding on the substantial question of law, the appeal deserves to be dismissed and it is hereby dismissed. No order as to costs.

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Sd/-

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T.P.^Sharma

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Judgir’

Manoj Kumar Sao and Ors. v. Ravishanker Awasthy

Case brief

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Manoj Kumar Sao and Ors. v. Ravishanker Awasthy

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