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Dr. Sudhir Tiwari Vs. Smt. Bhagwanti Devi Issrani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 52/2002
Judge
Reported in2002(2)MPHT132; 2002(3)MPLJ62
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12(1)
AppellantDr. Sudhir Tiwari
RespondentSmt. Bhagwanti Devi Issrani
Advocates:J.P. Sanghi, Adv.
DispositionLetter patent appeal dismissed
Excerpt:
.....use of house under section 12 (1) (f) of act - suit decreed - on petition, decree affirmed by single judge - hence present letter patents appeal - whether respondent entitled for getting eviction under section 12 (1) (f) of act? - held, husband of respondent is retired judge and his pension was meager - so, respondent want to start business for which she requires suit house - apart from that they comes under senior citizenship - as per established law, they were entitled to get benefit at first - therefore, trial court rightly decreed suit under section 12 (1) (f) of act - appeal dismissed - indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against..........and both were living in this accommodation before it was let out. at the time of letting out the suit accommodation on 1-10-1992, the plaintiffs husband justice k.l. issrani was a judge of this court and he was living in a government bungalow and after sometime he was transferred to orissa high court. he retired from that high court on 19-3-1995. presently, plaintiff and her husband are residing in a rented house at jabalpur. the plaintiff or her husband has no other house at jabalpur. it is not in dispute that one room on the first floor of the disputed accommodation is in possession of the plaintiff in which her husband is doing 'chamber practice'. the plaintiff has averred in the plaint that previously she was also running classes in tailoring and dress designing in the suit.....
Judgment:

K.K. Lahoti, J.

1. This Letters Patent Appeal is preferred by defendant/tenant aggrieved by the order passed by the learned Single Judge in First Appeal No. 735/2000, dated 3-1-2002. The learned Trial Court has decreed the suit of respondent-plaintiff under Section 12 (1) (f) of Madhya Pradesh Accommodation Control Act, 1961 but has refused decree to the plaintiff under Section 12 (1) (c), (k) and (m) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to 'the Act'). The learned Single Judge has confirmed the decree under Section 12 (1) (f) of the Act and has also granted decree to the plaintiff-respondent under Section 12 (1) (c) of the Act.

2. Short facts of the case are that the appellant is tenant of the plaintiff on the ground floor of house Nos. 1243 and 1244, Wright Town, Jabalpur at the rate of Rs. 6,000/- p.m. as per terms and conditions of agreement dated 1-10-1992 (Ex. P-1). The premises were taken for non-residential purposes to run a clinic and the defendant was permitted to carry out repairs to the extent of Rs. 15,000/- for which an amount of Rs. 3,000/- was paid to him in cash and the remaining amount of Rs. 12,0007- was to be adjusted in rent at the rate of Rs. 1,000/- p.m. The defendant was required to keep the accommodation in 'good and tenantable repairs' and handover the same to the plaintiff in the same condition in which it was at the time of letting, the period of tenancy was eleven months, which was renewable at the option of the defendant for a further period of eleven months and thereafter for seven months more but not later than 31-3-1995. The defendant was specifically not allowed to make any additions or alterations without the written consent of the plaintiff. The plaintiff's husband was practising as an Advocate and both were living in this accommodation before it was let out. At the time of letting out the suit accommodation on 1-10-1992, the plaintiffs husband Justice K.L. Issrani was a Judge of this Court and he was living in a Government bungalow and after sometime he was transferred to Orissa High Court. He retired from that High Court on 19-3-1995. Presently, plaintiff and her husband are residing in a rented house at Jabalpur. The plaintiff or her husband has no other house at Jabalpur. It is not in dispute that one room on the first floor of the disputed accommodation is in possession of the plaintiff in which her husband is doing 'chamber practice'. The plaintiff has averred in the plaint that previously she was also running classes in tailoring and dress designing in the suit accommodation and her husband was practising as an Advocate and was having his office therein. She stopped doing so after her husband was appointed as a Judge of this Court. After the retirement of her husband, she bona fide requires the suit accommodation for running the classes in tailoring and dress designing. She does not have any other accommodation for this purpose at Jabalpur. Her husband would start legal practice on the first floor of this house. Her husband wants to start his legal practice but the defendant has closed the passage and has put the waste material of the hospital with the result that the husband of the plaintiff is not able to go to the first floor and use the above said room for his legal work and is also unable to use library which is existing in that room. The plaintiffs husband is required to go through the compounder's room which has an opening leading to the staircase and for that he is required to take the permission of the defendant or his staff and suffer their annoyance. Many a times, plaintiff's husband has to face misbehaviour of the defendant and his staff and this amounts to nuisance. The allegations are also made regarding substantial damage to the suit accommodation and tenant having made material additions and alterations, but on this ground the learned Trial Court has refused the decree which has been affirmed by the learned Single Judge.

3. The defendant in the written-statement has denied the allegations of the plaint and has stated that the plaintiff was never running the classes in tailoring or dress designing in the suit accommodation. In fact, the plaintiff and her husband were residing in the suit accommodation and one room of the accommodation was used by the plaintiff's husband as his office. The accommodation was let out to him tor non-residential purposes. The plaintiffs alleged need is an afterthought and a false plea to get the accommodation vacated. In fact, the plaintiff does not require the accommodation. She does not enjoy sound health. The defendant has also taken a plea that the plaintiff in the presence of her husband orally agreed to give adjustment of the amount which was to be spent for modification and improvement in the building to suit the requirement of a modern clinic and the outer limit of such expenditure was agreed to be Rs. 2,00,000/- and defendant has actually spent this amount in this building to bring it in good shape and he is entitled to adjust the same. The defendant has also denied that he or his staff has ever misbehaved with the plaintiff's husband. Other allegations were also denied.

4. The learned Trial Court after appreciating the entire evidence had decreed the suit of plaintiff holding that the need of plaintiff for starting classes in tailoring and dress designing is bona fide. She has no other alternative accommodation in the town of Jabalpur and decreed the suit under Section 12 (1) (f) of the Act. Aggrieved by the judgment and decree of the Trial Court, the defendant preferred first appeal before this Court. The plaintiff has also filed cross-objections claiming decree for eviction under Section 12 (1) (c), (k) and (m) of the Act.

5. The learned Single Judge after considering the entire material and evidence and findings of the Trial Court has affirmed the findings regarding bona fide necessity of the plaintiff under Section 12 (1) (f) of the Act. The learned Single Judge while considering the cross-objection filed by the plaintiff-respondent has also reappreciated the evidence and has found that the defendant has created nuisance to the plaintiff and finding in that regard has been reversed by the learned Single Judge, but the finding regarding Section 12(1) (k) and (m) has been affirmed by the learned Single Judge holding that the plaintiff has failed to prove that the addition alteration made by the defendant is to the detriment of the interest of the plaintiff and the defendant has not caused any substantial damage to the accommodation.

6. Aggrieved by the judgment of the learned Single Judge, defendant has filed the present appeal and has assailed the judgment on following grounds before us :--

(a) That the learned Single Judge has erred in reversing the findings under Section 12 (1) (c) of the Act;

(b) That the defendant is entitled set off for Rs. 2,00,0007- from the plaintiff;

(c) That the learned Single Judge has not considered the statement of the plaintiff in which she has made several admissions and;

(d) That the finding regarding the bona fide necessity is perverse.

7. The learned Single Judge has considered the findings in respect of ground 12 (1) (c) of the Act in paras 18 to 22 of the judgment and has recorded the finding that the defendant has stored medicines, empty bottles, pieces of plaster of paris and other material in the staircase and has blocked the passage. Tenant has also closed permanently the staircase which was available from the verandah and in other passage of staircase, he has made the above said obstructions. The plaintiffs husband has been harassed by the defendant, his staff usually teasing and taunting and he was kept waiting unnecessarily for certain period everytime. The plaintiffs husband's statement has been found supported by Ashok Lalwani (PW 3) and in this regard, the learned Single Judge has also considered the defendant's evidence and statement of Gajendra Garewal (DW 14). After considering the entire evidence, learned Single Judge has arrived at a conclusion that the above said act constitutes nuisance within the meaning of Section 12(1)(c) of the Act. On this ground, the learned Single Judge has decreed the suit of the plaintiff-respondent under Section 12 (1) (c) of the Act and we affirm this finding.

8. The another ground which has been raised by the appellant is that the defendant is entitled for set off Rs. 2,00,000/- from the plaintiff. This amount he had spent on additions alternations of the premises to make it more useful and beautiful.

9. From the perusal of agreement between the parties (Annexure P-1) dated 1st October, 1992, the condition No. 3 (a) reads as under:--

'That Party No. 1 has agreed to give adjustment of Rs. 15,000/-(Rupees Fifteen thousand only) to Party No. 2 for carrying out necessary repairs out of which Rs. 3,0007- (Rupees Three thousand only) have been paid in cash and the balance shall be adjustable at the rate of Rs. 1,000/- p.m. (Rupees One thousand only) in rent for 12 months.'

10. In view of the above, the defendant was entitled for adjustment of Rs. 15,000/- only to carry out necessary repairs, out of which Rs. 3,000/- was already paid to him and balance was to be adjusted in succeeding 12 months.

11. The defendant has never objected to this clause nor has made any protest while he signed the agreement and subsequently, he has permitted the plaintiff to give adjustment of Rs. 1,0007- per month in rent for 12 months. In these circumstances, the contention of the appellant that he is entitled for set off of Rs. 2,00,0007- is not acceptable in view of provisions of Section 92 of the Evidence Act as the present contention of the defendant is contrary to the written agreement which specifically provides the adjustment of Rs. 15,000/-only and it is held that the defendant is not entitled for set off of Rs. 2,00,000/-from plaintiff.

12. The learned counsel for the appellant has drawn our attention to the statement of plaintiff in para 12 of her statement whereas certain vague questions were asked and no definite question regarding omission or contradictions from plaint has been put to the plaintiff. We have gone through the statement of plaintiff. In our view, on the face of reading para 12 of her statement, defendant cannot take any benefit until and unless the witness is asked specific question where she has pleaded specific fact in the plaint or not. Merely on the basis of the vague questions and answers, defendant cannot get any benefit. And from the perusal of para 12 of her statement, the plaintiff cannot be non-suited,

13. The fourth point which has been raised by the learned counsel for the appellant is that the finding in respect of bona fide necessity under Section 12 (1) (f) of the Act is perverse and the learned Single Judge and the Trial Court have erred in decreeing the suit as the plaintiff is an old lady. She cannot run the business and after retirement of her husband from such high post, she cannot start such a small business like classes of tailoring and dress designing. We have considered this aspect. Learned Single Judge after considering the entire evidence has arrived at a finding that the husband of the plaintiff is getting a meagre pension of Rs. 657/- only and the plaintiff wants to start her business of tailoring and dress designing and running classes. The old age will not come in the way of plaintiff to start a business. The bona fide need of the plaintiff has to be judged objectively by the Courts.

14. Learned Trial Court has held that the plaintiff requires bona fidely suit accommodation for starting her business which finding has been confirmed by the learned Single Judge after appreciating the entire evidence and from the perusal of the judgment, we do not find any infirmity or perversity. IN view of this, the learned Single Judge has rightly confirmed the findings of the Trial Court under Section 12 (1) (f) of the Act and we affirm it.

15. The learned counsel for the appellant while concluding the argument has tried to assail the judgment on the ground that the learned Single Judge has erred in hearing the appeal out of turn. Learned counsel has submitted that this was an appeal of the year 2000 and several other matters were pending since long, but hearing the matter out of turn has caused serious prejudice to the appellant and on this ground, the judgment passed by the learned Single Judge be set aside.

16. We have considered the arguments. The learned counsel for the appellant has also taken this objection before the learned Single Judge, who has dealt with this in paras 26 and 27 of the judgment. The age of the respondent was 61 years at the time the suit was filed. She is senior citizen as per directions of the Hon'ble Supreme Court and also of this Court, the matter relating to senior citizens has to be given priority. A woman of 66 years has legitimate expectation from the Court that her matter will be heard and decided by the Court on the basis of the priority so she may get justice within reasonable time and this expectation is in accordance with the directives issued by the Hon'ble Supreme Court. In these circumstances, the learned Single Judge has rightly heard and decided the matter of the respondent, which cannot be said to be hasty, nor on this ground a well reasoned judgment passed by the learned Single Judge can be set aside.

17. In view of the above discussion, we find no reasons to interfere in the order passed by the learned Single Judge confirming the judgment and decree passed by the District Judge, Jabalpur and this L.P.A. is summarily dismissed.


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