R.S. Jha, J.
1. This Second Appeal has been filed by the tenant against whom a judgment and decree of eviction have been passed by the Fourth Civil Judge, Class-II, Sagar on 1-5-2003 in Civil Suit No. 103-A/2001 and affirmed by the First Appellate Court, Sagar, by the judgment and decree dated 31-3-2005 passed in Civil Appeal No. 58-A/2004.
2. The brief facts, leading to the filing of the present appeal, are that the appellant/defendant was inducted as tenant in part of house No. 308 on 1-7-1988 on Rs. 400/- per month as rent by the husband of respondent/plaintiff Smt. Usha Mukhariya. Subsequently, the respondent/plaintiff gave a notice of eviction to the appellant/defendant on the ground of arrears of rent and bonafide requirement of the accommodation by the respondent/plaintiff for non-residential purpose of her son. As the notice went unreplied, a suit was filed by the respondent/plaintiff seeking eviction on the grounds mentioned under Sections 12(1)(a) and 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as 'the Act'). The appellant/tenant filed a written statement in which it was alleged that the respondent/plaintiff was not the landlord as the appellant/defendant had been inducted as a tenant by her husband and that the accommodation in question was not required by the respondent/plaintiff for bonafide non-residential use as he had already acquired vacant possession of two rooms in the same house. The Trial Court, by the impugned judgment and decree dated 1-5-2003 decreed the suit under Section 12(1)(f) of the Act, by recording a finding in the affirmative in respect of bonafide requirement of the respondent/plaintiff for non-residential purpose, but dismissed the suit as far as the ground under Section 12(1)(a)of the Act was concerned by giving a finding against the respondent/plaintiff. On an appeal being filed by the appellant/defendant, the judgment and decree of the Trial Court has been affirmed by the impugned judgment and decree dated 31-3-2005, hence this second appeal.
3. This Court, by order dated 28-8-2006, admitted the appeal on the following two substantial questions of law:
(i) Whether both the Courts below erred in ignoring the admission of the landlord regarding the alternative accommodation in Para 7 of her deposition wherein she has stated that:
;g lgh gS fd izfrokn i= layXu uD'ks esa gjs jax ls nf'kZr Hkkx [kkyh gS A Lor% dgk fd ;g Hkkx vHkh [kkyh djk;k gS] dqN vkSj Iyku djuk gSA
(ii) Whether both the Courts below committed error in not considering that the plaintiff did not give any evidence to the effect that aforesaid vacant portion is not reasonably suitable for the requirement of the son and daughter-in-law of the landlord?
4. Subsequently, by order dated 17-9-2008 an additional question of law was framed, which is to the following effect:
Did the plaintiff become owner within the meaning of Section 12(1)(f) of the M.P. Accommodation Control Act, 1961, of the suit premises during the life time of her husband on the basis of alleged family settlement (which is not on record) and the municipal entries and is whether entitled to a decree for eviction under the said proviso?
5. In respect of the aforementioned substantial questions of law it is submitted by the learned Counsel for the appellant/defendant that the respondent/plaintiff did not, at any point of time, plead or prove that she does not have any other reasonably suitable accommodation in her occupation in the city or town as required by the provisions of Section 12(1)(1) of the Act nor did she give any evidence or make any statement to the effect that the vacant portion of the accommodation which had come into her possession was not reasonably suitable for the requirement of her son and daughter-in-law in spite of the fact that she had admitted the fact of coming into possession of two rooms in the same accommodation in Para 7 of her deposition. It is further submitted that as per the contract of tenancy the appellant/defendant had been inducted as a tenant by the husband of the respondent namely Dr. Mahendra Mukhariya who was very much alive when the suit was filed, but the suit was filed by the wife of Dr. Mahendra Mukhariya, the present respondent/plaintiff although she was not the owner of the accommodation which is also an essential requirement under Section 12(1)(f) of the Act and in such circumstances, as the respondent/plaintiff was not the owner nor has she pleaded or proved the requirements of Section 12(1)(f) of the Act, the judgment and decrees of the Trial Court and the Appellate Court deserve to be set aside.
6. Per contra the learned Counsel appearing for the respondent/plaintiff submits that there is a concurrent finding of fact by both the Courts below in respect of the ownership of the property of the respondent/plaintiff as well as her bonafide requirement and in such circumstances, this Court has no jurisdiction to interfere in such concurrent findings of fact. It is further submitted that even if the findings of the Courts below are erroneous or perverse, this Court has no jurisdiction to interfere in the same being concurrent findings of fact and for that purpose the learned Counsel for the respondent/plaintiff has relied upon the judgments of the Supreme Court in the cases of Kashibai w/o Lachiram and Anr. v. Parwatibai w/o Lachiram and Ors. 1996 MPLJ 1 and Gurdev Kaur and Ors. v. Kaki and Ors. : AIR2006SC1975 .
7. Before entering into the merits of the rival contentions raised by the parties, it is pertinent to take note of the fact that the respondent/plaintiff had filed an application under Order 41 Rule 27 (b), CPC to bring on record four documents to establish the fact that the respondent/plaintiff was the owner of the property even at the time of filing of the suit having received the same in a family arrangement which was recorded between the respondent/plaintiff and her husband Dr. Mahendra Mukhariya. However, during the course of the arguments learned Counsel for the respondent/plaintiff has categorically stated that he does not with to press this application which may be dismissed on that account.
8. In view of the statement of the learned Counsel for the respondent/plaintiff, the application filed under Order 41 Rule 27 (b), CPC is dismissed as not pressed.
9. Similarly, the appellant/defendant has filed an application under Order 6 Rule 17 read with Section 151 of the CPC, which has been registered as I.A. No. 3738/2005 praying for permission to make amendments in the written statement and for taking on record the fact that the son of the respondent/plaintiff Dr. Sanjeev Mukhariya and her daughter-in-law are owners of a 40 bedded hospital known as Ganesh Memorial Hospital situated in Cantt. Sadar Bazar, Main Road, Sagar, which is also their residence and is adjacent to the suit accommodation. It is submitted that the aforesaid application deserves to be allowed as it clearly indicates that the respondent/plaintiff have suppressed material facts regarding possession of a suitable alternative accommodation and also establishing the fact that the requirement of the respondent/plaintiff is not bonafide as her son already has an alternative suitable non-residential accommodation.
10. From a perusal of the written statement filed by the appellant/defendant and the evidence adduced by him before the Trial Court as well as the memo of the First Appeal filed by him before the First Appellate Court, it is clear that the appellant/defendant in spite of having full knowledge of these facts and possessing the details in respect thereof chose not to make any averment in this respect before the Trial Court or the First Appellate Court and has for the first time sought to bring on record the aforesaid facts which were well within his knowledge well before the filing of the suit. No reason or explanation has been placed on record by the appellant/defendant as to why the aforesaid facts were neither stated in the written statement nor were they brought on record during the pendency of the suit or the First Appeal. In such circumstances, in the absence of fulfilling the aforesaid requirement of the provisions of law, I do not find any reason to allow the application filed by the appellant/defendant at this stage, which is accordingly rejected.
11. On examining the findings, recorded by the Trial Court as well as the First Appellate Court, I do not find any advertence by either of them to the question of availability of an alternative suitable accommodation with the respondent/plaintiff though the fact of coming into possession of two rooms was positively admitted by the respondent/plaintiff (P. W. 1) herself in Para 7 of her deposition wherein she has clearly stated that the map filed by the appellant/defendant rightly indicates the entire ground floor of the accommodation and that the portion marked in green therein is in vacant possession of respondent/plaintiff. She has, on her own, further gone on to state that the aforesaid portion shown in green has been vacated recently and that she shall think of some other plan in respect of the aforesaid vacant portion. The son of respondent/plaintiff Dr. Sanjeev Mukhariya, who has been examined* as P.W. 3 in Para 4 of his deposition, has stated that he wishes to construct a Nursing Home in the entire premises which cannot be done without evicting the appellant/defendant. In Para 7 he has further stated that he had informed his mother, the respondent/plaintiff, that he wished to construct a Nursing Hone, but has pleaded ignorance as to why that fact has not been mentioned in the plaint. In Para 8 he has further clarified that he wishes to demolish the entire construction shown in green in the map filed by the appellant/defendant and reconstruct it as without demolishing the entire structure a Clinic cannot be constructed. He has further stated that he has not filed any document as to the proposed map of the Clinic and the estimate thereof as the accommodation has not been vacated by the appellant/defendant. In Para 10 of his deposition he has stated that it is incorrect to say that he spends most of his time in Ganesh Nursing Home.
12. From a perusal of the above, it is apparent that contrary to the statement of her son for whom the respondent/plaintiff is claiming vacant possession for non-residential purpose, the respondent/plaintiff has not stated either in the plaint or in her deposition that she does not have any alternative reasonably suitable accommodation of her own in her occupation in the city or town or that the accommodation available to her, as admitted by her in Para 7 of her deposition, was not suitable for the purpose for which she is claiming eviction.
13. The provision of Section 12(1)(f) of the Act, clearly states that a suit for eviction against a tenant from any accommodation under that clause can be filed in case the accommodation is required bonafide by the landlord for the purposes of his or her business or for any requirement of his/her major son, if he is the owner thereof and that the landlord or the person for whom the eviction is sought has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.
14. In the instant case, as is apparent from the pleadings of the respondent/plaintiff in the plaint, as well as from a perusal of the judgment of the Trial Court and the First Appellate Court, that they are not in conformity with the requirement of Section 12(1)(f) of the Act as the respondent/plaintiff has not made any averment in the plaint or led any evidence to prove that she had no other reasonably suitable non-residential accommodation of her own in her occupation in the city or town concerned. It is clearly apparent from the record that she has failed to plead and prove that she had no other alternative suitable accommodation, or that the vacant accommodation available with her as stated by her in Para 7 of her deposition was not reasonably suitable for the purpose of establishing a Clinic specifically in view of the fact that both the Courts below have recorded a finding to the effect that the son and daughter-in-law of the respondent/plaintiff were already having a Clinic in the major part of the disputed premises and had also acquired vacant possession of two big rooms behind the Clinic in the same accommodation as well as another portion on the main road.
15. From the aforesaid, it is apparent that the respondent/plaintiff did not plead or prove the requirement of Section 12(1)(f) of the Act and both the Courts below, in spite of the absence of such pleading or proof, have decreed the suit under Section 12(1)(f) of the Act. I am of the considered opinion that in the total absence of any pleading and proof that there was no other reasonably suitable accommodation for non-residential purposes, which is an essential requirement of Section 12(1)(f) of the Act, the decree for eviction under Section 12(1)(f) of the Act, passed by the Courts below, are not sustainable. I am also of the considered opinion that both the Courts below, having not taken into consideration the requirement of the provisions of Section 12(1)(f) of the Act, have committed gross error of law in decreeing the suit filed by the respondent/plaintiff.
16. The aforesaid conclusion, recorded by me, is based on the judgment of the Supreme Court in the case of Hasmat Rai and Anr. v. Raghunath Prasad : [1981]3SCR605 . The Supreme Court, while dealing with somewhat similar case in which the landlord seeking eviction under Section 12(1)(f) of the Act, had acquired possession of part of the same premises, has observed as follows in Paras 6, 15 and 16:
6. Section 12(1)(f) under which eviction of the tenant is sought, by the landlord reads as under:
that the accommodation let for non-residential purposes is required bonafide by the landlord 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.In order to be able to seek eviction of a tenant under Section 12 (1) (f), the landlord has not only to establish that he bonafide requires the accommodation let to the tenant for non-residential purposes for the purpose of continuing or starting his business but he must further show that the landlord has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or the town concerned.
15. The landlord wants to start his business as Chemists and Druggists. On his own admission he has in his possession a shop admeasuring 18' x 90' plus 7' x 68' forming part of the same building the remaining small portion of 7' x 22' is occupied by the tenant. The landlord has not stated that so much space with 18' frontage is not reasonably suitable for starting his business as Chemists and Druggist. In that view of the matter the plaintiff's suit for eviction on the ground mentioned in Section 12(1)(f) must fail and this is being done by not disturbing any finding of fact but relying upon the admission of the plaintiff himself.
16. ...Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bonafide requires the same for his own use and occupation. But there is an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the Court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the Trial Court and the First Appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested the landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the Courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists & Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the Courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the Act.
17. As I have held that the impugned judgments and decree are not sustainable in view of the aforesaid legal infirmity, the contention of the learned Counsel for the respondent/plaintiff that this Court has no right or authority to interfere in the concurrent findings of fact or even in erroneous and perverse findings of fact, does not deserve any consideration specifically as the judgments and decree of both the Courts below have been passed ignoring the mandatory requirements of Section 12(1)(f) of the Act. For the same reasons the judgments, relied upon by the learned Counsel for the respondent/plaintiff, also do not have any applicability to the present case.
18. In view of the aforesaid, the appeal filed by the appellant/defendant is allowed. The judgments and decree passed by both the Courts below are set aside. A decree be drawn up accordingly. Counsel fee as per schedule.