Landlord appealed against lower courts dismissing eviction suit under Chhattisgarh Accommodation Control Act, 1961. High Court held parting with possession without consent justified eviction despite tenancy succession claims.
Suit decreed on ground of Section 12(1)(b); Defendant to handover vacant possession of suit accommodation to plaintiff.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 3 24 of 20 05
Judgment reserved on 30.09.2016
Judgment delivered on 07.10.2016
Jawaharlal Jain, S/o Late Shri Balram Chand Jain, aged about 49 years, R/o Manendragarh, Tahsil Manendragarh, District Korea(C.G.) ….Plaintiff
---- Appellant
Versus
Ghanshyam Mittal, S/o Late Shri Mahaveer Prasad Mittal, Aged about 55 years, Development Officer, Bharti Jeewan Beema Nigam, R/o Baikunthpur, Tahsil Baikunthpur, District Korea(C.G.) ....Defendant
---- Respondent
| For Appellant |
: | Mr. Sunil Otwani, Advocate. |
|---|---|---|
| For respondent | : | Mr. Parag Kotecha & Mr. Anand Shukla, Advocate. |
Hon'ble Shri Justice Sanjay K. Agrawal
Judgment [C.A.V.]
(1) The substantial question of law involved, formulated and to be
answered by this Court in the plaintiff's second appeal is as under:-
“Whether both the courts below were justified in dismissing the plaintiff's suit for eviction on the ground of Section 12(1)(b) of the Chhattisgarh Accommodation Control Act, 1961 by recording perverse findings ?”
[For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court]
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(2) The plaintiff/landlord instituted an action for eviction, arrears of rent & damages stating inter alia that original defendant– Mahavir Prasad Mittal, who died during pendency of the suit, was his tenant on a monthly rent of Rs.125/- per month and suit accommodation was let out for non-residential purposes (for running readymade cloth shop). It was further pleaded that monthly tenancy commences from 1st day of each English Calendar month and ends on the last day of that particular month. It was further pleaded by the plaintiff that original defendant without consent of plaintiff landlord had parted with the possession of part of the suit accommodation to Shri Anil Kumar Agrawal for running Photo Copy Shop as Shri Anil Kumar Agrawal has obtained loan under the Pradhan Mantri Rojgar Yojana for running the said shop and thus it is a ground under Section 12(1)(b) of the Chhattisgarh Accommodation Control Act, 1961 (henceforth 'Act, 1961') as the defendant has unlawfully sub-let/assign and parted with the possession of the part of the suit accommodation let out to him for non-residential purposes to Shri Agrawal and, therefore, he through his counsel sent a legal notice (Ex.P-1) for vacating the suit accommodation, which was received by him vide Ex.P-2 and he has replied the said notice vide Ex.D-2 but he has not vacated the suit accommodation leading to filing of the suit for eviction and other related relief(s).
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filed their joint written statement before the trial Court stating inter alia that Mahavir Prasad was tenant in the suit accommodation for last 25 years and after his death newly impleaded defendants and Anil Kumar Agrawal being successors of late Mahaveer Prasad, became tenant. It has also been stated in the written statement that after death of original tenant – Mahaveer Prasad Mittal, Anil Kumar Agrawal became statutory tenant and he is running photo-copy shop in the tenanted accommodation. It has specifically been pleaded in para nine of the written statement that on 8-7-1993, original tenant Mahaveer Prasad Mittal executed a Will in favour of Anil Kumar Agrawal and by the said Will, Anil Agrawal has become the owner of the suit shop and being successor he became statutory tenant of the suit accommodation.
(4) The trial Court, after appreciation of oral & documentary evidence available on record, framed following six issues and answered all the issues in negative and dismissed the suit, which starts as under:-
okn iz'u fu" d"kZ
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(5) Plaintiff preferred first appeal before the first appellate Court thereagainst. The First appellate Court, by its judgment & decree, affirmed the decree of the trial and dismissed the suit.
(6) Impugning the legal acceptability and sustainability of the order dated 19.04.2005 passed by the Additional District Judge, Manendragarh, District Koria, the second appeal under Section 100 of the CPC has been preferred by the plaintiff (appellant herein), which has been admitted for final hearing on the substantial question of law as stated in opening paragraph of this judgment.
(7) Mr. Sunil Otwani, learned counsel appearing on behalf of the appellant/plaintiff, would submit that both the courts below have committed legal error in dismissing the suit by recording perverse finding as in the written statement filed by the defendants, it has been pleaded that after death of original tenant Mahaveer Prasad, Anil Kumar Agrawal has become statutory tenant, which is in violation of Section 14(1)(b) of the Act of 1961 and it has further been admitted that original tenant has parted with the possession of part of the suit accommodation to Shri Anil Kumar Agrawal for running Photo Copy Shop and, as such, the findings recorded by both the courts below are liable to be set aside.
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(8) Per contra, Shri Parag Kotecha, learned counsel appearing for the defendants/tenants would submit that findings recorded by both the courts below are neither perverse nor contrary to the record as the plainitff's plea based upon Section 14(1)(b) of the Act, 1961 is barred by Section 14(2) of the Act, 1961. He further submits that plea of Section 14(1)(b) has not been specifically raised before both the courts below and, therefore, it cannot be permitted to be raised before this Court for the first time.
(9) I have heard learned counsel appearing for the parties & considered their rival submissions made hereinabove and perused the records of both the Courts below with utmost circumspection.
(10) The plaintiff-landlord filed a suit for eviction against the original tenant Mahaveer Prasad Mittal under Section 12(1)(b) of the Act, 1961 pleading inter alia that he is tenant for a monthly rent of Rs.125/- per month for non-residential purpose i.e. for running readymade shop, the part of the suit accommodation has been unlawfully parted to Shri Anil Kumar Agrawal and he is running photocopy shop in the said portion and thereby he is entitled for decree of eviction under Section 12(1)(b) of the Act, 1961.
(11) Original tenant- Mahaveer Prasad died during pendency of the suit and his wife Angoori Devi and adopted son Ghanshyam Mittal were impleaded as party defendants. They filed joint written statement, admitted the relationship of landlord and tenant between the plaintiff and original tenant – Mahaveer Prasad, therefore, the
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issue before the trial Court was whether plaintiff has succeeded in establishing the ground under Section 12(1)(b) of the Act, 1961.
(12) Section 12(1)(b) of the Act, 1961 states as under:-
“ 12. Restriction on eviction of tenants .- (1) Notwithstanding anthing 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) xxx xxx xxx
(b) that the tenant has, whether before or after the commencement of this Act, unlawfully sublet, assigned or otherwise parted with the possession of the whole or any part of the accommodation from consideration or otherwise;
(c) xxx xxx xxx
(13) The aforesaid clause provides ground for eviction to the landlord in the following circumstances.
(i) The tenant has unlawfully sub-let the accommodation.
(ii)The tenant has unlawfully assigned the accommodation.
(iii)The tennat has unlawfully in any other other manner parted with the possession of accommodation.
(14) Section 14 of the Act, 1961 speaks about restriction on subletting and provides as under:-
“ 14. Restriction on sub-letting... (1) No tenant shall, without the previous consent in writing of the landlord..
(a) sub-let the whole or any part of the
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accommodated held by him as a tenant; or (b) transfer or assign his rights in the tenancy or in any part thereof.
(2) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub-letting of the whole or any part of teh accommodation held by the tenant.”
(15) Thus, by virtue of Section 14(1)(b) of the Act, 1961 tenant shall not transfer or assign his right in tenancy or in any part thereof without previous consent in writing of the landlord.
(16) The present defendants in their written statement admitted that Anil Kumar Agrawal is close relative (brother-in-law's son) of the original tenant Mahaveer Prasad and readymade shop has been given to him by Will dated 8.7.1993 and, as such, after the death of Mahaveer Prasad Mittal, Anil Kumar Agrawal became the statutory tenant and he is running photo-copy shop in the part of suit accommodation.
(17) In the matter of Gaiv Dinshaw Irani & others Vs. Tehmtan Irani & others 1, their Lordships of the Supreme Court have considered the fact whether statutory tenancy can be bequeathed by Will and held as under:-
“26. The aforementioned cases indicate that in general tenancies are to be regulated by the governing legislation, which favour that tenancy be transferred only to family members of the deceased
1 AIR 2014 SC 2326
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original tenant. However, in light of the majoirity decision of teh Constitution Bench in Gian Devi V. Jeeven Kumar2 , the position which emerges is that in absence of any specific provisions, general laws of succession to apply, this position is further cemented by the decision of this Court in State of West Bengal v. Kailash Chandra Kapur (AIR 1997 SC 1348) (supra) which has allowed the disposal of tenancy rights of Government owned land in favour of a stranger by means of a will in the absence of any specific clause or provisions.”
(18) The Division Bench of Madhya Pradesh High Court in the matter of Smt. Satyabhamadevi Choubey Vs. Ramkishore Pandey3 while considering the provisions contained in Section 12(1) (b) of the Act of 1961 read with Section 14 of the Act of 1961 has held that sublease of assignment by a tenant is unlawful, where it is without the consent in writing of landlord as provided in Section 14(1) C of the Act. It was held succinctly as under:-
2 (1985) 2 SCC 683: AIR 1985 SC 796
3 AIR 1975 MP 115
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be read with Section 14 so far as sub-letting and assignment are concerned. Section 14 makes a sublease or assignment unlawful where it is without the consent of the landlord. Thus, in the context of sublease or assignment, the expression 'in contravention of the provisions of clause (b) of sub-section (1) of Section 12' occurring in sub-section (3) of Section 43 must be read as meaning 'without the consent of the landlord; and if this expression is to be construed in this manner in relation to sub-letting and assignment, it would be proper to assign the same meaning to it in relation to “otherwise parting with possession”. It would, therefore, appear that sub-section (3) of Section 43 makes it punishable for a tenant to sub-let, assign or otherwise part with possession of the whole or any part of the accommodation without the consent of the landlord. From the language of this sub-section it is clear that it treats all the three acts of the tenant, viz., sub-letting, assignment, and otherwise parting with possession, alike. Therefore, on a proper construction thereof, when read with clause (b) of sub-section (1) of Section 12 and Section 14, it would appear that all these three acts are unlawful when committed without the previous consent in writing of the landlord.”
(19) In the present case, the Act of 1961 is applicable and Section 14 of the Act, 1961 noted hereinabove specifically bars the transfer or assignment of the tenancy rights to any other person by tenant without previous consent in writing of the landlord. Therefore, original tenant Mahaveer Prasad Agrawal was not entitled to part with the posseesion of the part of suit accommodation held by him
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as tenant in favour of Anil Kumar Agrawal, who is admittedly running photo-copy shop in the said accommodation, as such, no previous consent in writing of the landlord/plaintiff has been established to be accorded by plaintiff to the original defendant to transfer his right or interest in the tenanted suit accommodation to Anil Kumar Agrawal, therefore, the ground under Section 12(1)(b) of the Act, 1961 is clearly established as the original defendant has not only unlawfully assigned his right in tenancy to Anil Kumar Agrawal but also parted with the possession of the part of the suit accommodation in favour of Anil Kumar Agrawal contrary to the provisions contained in Section 14(1) of the Act of 1961, therefore, this court is of the opinion that findings recorded by both the courts below dismissing the suit of the plaintiff holding that ground under Section 12(1) (b) is not made out is perverse and liable to be set aside and the substantial question framed is answered in favour of plaintiff.
(19) Consequently, the Second Appeal is allowed. Judgment & decree passed by trial Court as affirmed by the first appeallate Court is set aside. The plaintiff's suit is decreed under Section 12(1)(b) of the Act, 1961. Defendant will handover vacant possession of suit accommodation to the plaintiff.
(20) A decree be drawn accordingly.
Sd/-
(Sanjay K. Agrawal) Judge
D/-
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3 issues framed by the court
Whether the high court was justified in dismissing the plaintiff suit for eviction on grounds of Section 12(1)(b) of Chhattisgarh Accommodation Control Act, 1961.
Whether the respondents can be evicted as they were given possession of part of the suit accommodation without landlord consent.
Whether the lower courts recorded perverse findings in dismissing the eviction suit?
Colour shows how this judgement treated each authority
State of Rajasthan vs. Veena Bhargava (implied reference context)Distinguished¶60
Gaiv Dinshaw Irani & others Vs. Tehmtan Irani & others
Gian Devi V. Jeeven KumarApplied¶62
1 AIR 2014 SC 2326 · Who else cites this
State of West Bengal v. Kailash Chandra KapurReferred¶64
State of West Bengal v. Kailash Chandra Kapur (AIR 1997 SC 1348) · Who else cites this
Smt. Satyabhamadevi Choubey Vs. Ramkishore PandeyReferred¶65
Smt. Satyabhamadevi Choubey Vs. Ramkishore Pandey
3 provisions across 2 enactments
Jawaharlal Jain
Ghanshyam Mittal
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
