Dismissed¶¶34

Ku. Shabana Nisha Rani v. Smt. Rama Bai

Chhattisgarh HC8 Jan 2024SA/387/2013

Case brief

AI extract

What is this about?

SA No. 387 of 2013; High Court of Chhattisgarh, Bilaspur; Justice Rakesh Mohan Pandey; 09.01.2024; eviction suit; kutcha house Pachari Para, Durg; dilapidated dwelling; Commissioner's report Ex.P/3 31.08.2010; concurrent findings; substantial question of law answered in negative; Section 12(1)(g) C.G. Accommodation Control Act, 1961; Section 309 Chhattisgarh Municipal Corporation Act, 1956 certificate; pleading objection rejected; Ram Sarup Gupta (Dead) By Lrs v. Bishun Narain Inter College (1987) 2 SCC 555 relied on; appeal dismissed, no costs; decree drawn; plaintiff Rama Bai; defendant Shabana Nisha Rani.

What did the court decide?

Appeal dismissed with no cost(s); decree to be drawn accordingly - the affirmed eviction decree of the Courts below stands. ¶¶34

Ku. Shabana Nisha Rani Vs Smt. Rama Bai — Chhattisgarh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal dismissed with no cost(s); decree to be drawn accordingly - the affirmed eviction decree of the Courts below stands.

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Issue for consideration

Whether the findings of both the Courts below are correct, particularly in light of the Commissioner's report finding that, except for the portion over which the appellant/defendant was retaining as a tenant, the remaining portion of the building was in dilapidated condition. +1 more

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Court's answer

The Courts below rightly held that the condition of some parts of the dwelling house was not good and it would not be safe to stay in any part of that building.

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Ratio / Principle

The substantial question of law is answered in the negative against the defendant/appellant; both Courts below rightly decided the issue with regard to the Commissioner's report in favour of the plaintiff.

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Key takeaways

The appellant's contention that the plaintiff ought to have approached the Municipal Corporation under Section 309 for a certificate is rejected because there is no pleading in the written statement and no evidence was led by the defendant on that point.ratio¶¶29

Detailed headnote1 paragraphs

Second appeal SA No. 387 of 2013 dismissed by the High Court of Chhattisgarh, Bilaspur (Justice Rakesh Mohan Pandey, 09.01.2024). Defendant-appellant Ku. Shabana Nisha Rani contested the affirmation by the VIth Additional District Judge, Durg (Civil Appeal No. 7A of 2013, 11.07.2013) of the VIIIth Civil Judge Class-II, Durg's eviction decree (Civil Suit No. 83A of 2008, 30.07.2011) in plaintiff Smt. Rama Bai's suit over a kutcha house at Pachari Para, Durg. The admitted substantial question - correctness of the concurrent findings in light of the Commissioner's report (Ex.P/3, 31.08.2010) finding the building dilapidated/unsafe apart from the tenant-held portion - was answered in the negative; the unchallenged report supported both Courts. The objection that the plaintiff needed a Section 309, Chhattisgarh Municipal Corporation Act, 1956 certificate was rejected for want of pleading and evidence, invoking Ram Sarup Gupta (1987) 2 SCC 555. Appeal dismissed, no costs; decree to be drawn.

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No. 387 of 2013

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Ku. Shabana Nisha Rani D/o Late Kadar Ali Aged About 26 Years R/o Pacharipara, Durg, Tahsil And District- Durg, Chhattisgarh.

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---- Appellant

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Versus

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Smt. Rama Bai W/o Shri Feruram Sahu Aged About 61 Years R/o Pendri, Tah. Patan, P.S., P.O. And Tah. Patan, District Durg, Chhattisgarh

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---- Respondent

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(Cause Title is taken from Case Information System)

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For Appellant : Shri H.B. Agrawal, Senior Advocate with Ms. A. Sandhya Rao, Advocate. For Respondent : Shri Arvind Shrivastava, Advocate.

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Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board

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09.01.2024

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1. This appeal has been preferred by the defendant against the judgment and decree passed by the learned VIth Additional District Judge, Durg, District Durg in Civil Appeal No. 7A of 2013 dated 11.07.2013 whereby the judgment and decree passed by the learned VIIIth Civil Judge Class-II, Durg, District Durg in Civil Suit No. 83A of 2008 dated 30.07.2011 has been affirmed.

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2. This appeal was admitted for hearing on 04.10.2013 on the following substantial question of law:-

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“Whether the findings of both the Courts below are correct particularly in the light of the Commissioner's report who, in his report has categorically given a finding that except for the portion over which the appellant/defendant was retaining as a tenant, the remaining portion of the building was in dilapidated condition?”

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3. The facts of the present case are that the plaintiff filed a civil suit for eviction inter alia on the ground that the defendant is a tenant of one Kutcha house situated at Pachari Para, Durg. It is further pleaded that the defendant had taken a room on rent for Rs.30/- per month and by efflux of

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time, the condition of the house turned dilapidated and the same did not remain safe for dwelling. It is further stated that even though a notice was issued by the counsel on 24.11.2006 to the defendant, the defendant refused to vacate the suit house. Thus, the plaintiff filed a suit for eviction and vacant possession of the suit house and for arrears of the rent. The defendant filed the written statement and specifically stated that she has been staying in the rented house for the last 35 years. Earlier, the owner of the property was one Pusavram and after his death, his wife Smt. Kejabai was collecting the rent who died on 16.09.2003 and after her death, her daughter namely, Ramabai/plaintiff is collecting the rent. It is further pleaded that till 15.01.2008, the rent has already been paid and there is no arrears. The defendant specifically denied the fact that the condition of the house was dilapidated. It is also stated that she has spent Rs.2,000/- in repairing the house. In paragraph 9, it is stated that the plaintiff wants to sell the suit house therefore, she has filed the suit for eviction.

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4. The learned trial Court called a report from the Commissioner who submitted a report dated 31.08.2010 stating that except for the part where the defendant is staying, the condition of the other part of the house is dilapidated. It is further stated that the thickness of the wall where the defendant is staying is about 14 inches but the wall is made up of mud/soil therefore, technically it cannot be safe or strong for dwelling purposes. Learned trial Court after taking into consideration the Commissioner's report decreed the suit. An appeal was preferred by the defendant but the same was dismissed by the learned First Appellate Court.

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5. Learned counsel for the appellant/defendant would submit that the plaintiff has filed the suit for eviction according to provisions of Section 12(1)(g) of the C.G. Accommodation Control Act, 1961 however when the condition of the dwelling house was not good, the plaintiff ought to have approached

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the Municipal Corporation under Section 309 of the Chhattisgarh Municipal Corporation Act, 1956 for issuance of a certificate in this regard and in the absence of such certificate, the suit was not maintainable. He would further argue that except for the portion over which the defendant was residing as a tenant, the remaining portion of the building was in dilapidated condition, therefore, there was no occasion or reason for the Courts below to pass a decree against the defendant relying upon the Commissioner's report.

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6. On the other hand, learned counsel for the plaintiff would submit that the suit was not filed according to provisions of Section 12(1)(g) of the C.G. Accommodation Control Act, 1961 rather the suit was simply filed for eviction as the condition of the suit house was dilapidated and it was not fit for dwelling purposes. It is further submitted that there was a need for reconstruction which was not possible without the eviction of the defendant. He would also argue that the Commissioner's report was sought by the learned trial Court where it has been categorically stated that the room situated adjacent to the house where the defendant is staying was not good for dwelling purposes and most of the building was in dilapidated condition. It is also stated that it would not be safe for the defendant to stay on that premises because the walls are made up of mud and the same cannot be said safe. He would further contend that there is a concurrent finding recorded by the Courts below; there was no need for the plaintiff to move an application under Section 309 of the Chhattisgarh Municipal Corporation Act before the Municipal Corporation; and, there is no pleading or evidence in this regard by the defendant.

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7. I have heard counsel appearing for the parties and perused the documents placed on record.

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8. From a perusal of the record, it is apparent that the plaintiff is the owner of the suit property. The suit house was given on rent to the defendant 30-35 years ago from the date of filing of the civil suit. As per the plaint averments, some portion of the building was in dilapidated condition and there was a need for reconstruction or repair which was not possible without the eviction of the defendant. A report was called by the Court and vide Ex.P/3 the report was submitted by the Commissioner which was never challenged by the defendant or the plaintiff before the superior forum. According to the Commissioner's report, the adjacent part of the suit house was not in a good condition. It was further stated that though the wall of the suit house is made up of mud/soil, the same cannot be said safe for dwelling purposes. Finally, it was stated by the Commissioner that it would not be safe to stay or reside in the suit house. Relying upon the Commissioner's report, the learned trial Court as well as the Court below passed the judgment in favour of the plaintiff.

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9. With regard to the contention made by the learned counsel for the defendant that the plaintiff ought to have approached the Municipal Corporation according to provisions of Section 309 of the Municipal Corporation Act, 1956, there is no pleading in the written statement and no evidence was led by the defendant, therefore, the argument advanced by learned Senior Counsel is not acceptable. In the matter of Ram Sarup Gupta (Dead) By Lrs vs. Bishun Narain Inter College and Others, (1987) 2 SCC 555 , the Hon'ble Supreme Court held that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it .

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10. Indisputably, the defendant is a tenant and she has been staying for the last 30-35 years from the date of filing of suit in the suit house. A notice was

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also issued on 24.11.2006 for eviction but the defendant refused to vacate

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the house.

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11. The Courts below have rightly held that the condition of some parts of the dwelling house is not good, and it would not be safe to stay in any part of that building. Therefore, the substantial question of law is answered in negative against the defendant/appellant and it is held that both the Courts below have rightly decided the issue with regard to the Commissioner's report in favour of the plaintiff.

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12. Accordingly, the appeal fails and is hereby dismissed . No cost(s).

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13. A decree be drawn accordingly.

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Sd/(Rakesh Mohan Pandey) Judge

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Nimmi

Ku. Shabana Nisha Rani v. Smt. Rama Bai

Case brief

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Ku. Shabana Nisha Rani v. Smt. Rama Bai

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