R.S. Jha, J.
1. The appellant/tenant being aggrieved by judgment and decree dated 17.1.2005 passed by the First Appellate Court in Civil Appeal No.44-A/2004 whereby the judgment and decree passed by the First Civil Judge, Class-II, Jabalpur, in Civil Suit N.57-A/98 dated 2.2.2001 has been reversed and the suit filed by the landlord/plaintiff for eviction of the appellant on the ground mentioned in Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') has been allowed.
2. The second appeal was admitted by this Court on the following two substantial questions of law:
1. Whether suppression on the part of the plaintiff/landlord regarding the premises vacated by Saukat Rai is fatal to the alleged need and the plaintiff is liable to be non suited?
2. Whether the premises vacated by Saukat Rai is equally suitable in comparison to the suit premises and the plaintiff is liable to be non suited?
3. In respect of the substantial questions of law, which are intricately interlinked, it is submitted by the learned counsel appearing for the appellant that the landlord/respondent did not make any specific averment in the plaint regarding the alternative premises vacated by one Saukat Rai and which was in the possession of the landlord/plaintiff inspite of the fact that the aforesaid accommodation was suitable for the needs set up by him for establishing the business of his son. It is submitted that the trial court, in para-29 of its judgment, has discussed this aspect in detail and recorded a finding that adjacent to the tenanted premises there was a passage which was 4' x 16 ft. besides which the accommodation vacated by Saukat Rai admeasuring 5' x 16 ft. was available with the landlord and in case the respondent/landlord demolishes the wall and reconstructs it, he would have an area of 9' x 16 ft. available to him for the purpose of starting the business of his son which area is equal to the area which had been let out to the appellant. It is submitted that the trial court, after taking into consideration the aforesaid facts and circumstances, dismissed the suit filed by the respondent/landlord, but the First Appellate Court reversed the judgment and decree of the trial court by recording a finding that the accommodation available with the respondent/landlord was not a suitable alternative accommodation. It is submitted by the learned counsel for the appellant that the finding recorded by the appellate court is perverse and is not based on the evidence on record wherein the landlord P.W-1 and his son Pankaj (P.W-2) have clearly stated in their evidence that the accommodation vacated by Saukat Rai and the passage adjacent to it were available. In such circumstances, it is submitted that the impugned judgment and decree of the appellate court deserves to be set aside and the judgment and decree of the trial court, dismissing the suit filed by the landlord, deserves to be reaffirmed.
4. On the other hand the learned counsel appearing for the respondent/landlord has taken this Court through paras-11 and 13 of the impugned judgment of the lower appellate court as well as the evidence of the landlord P.W-1 and his son Pankaj (P.W-2) and on that basis has submitted that no fault can be found with the finding recorded by the First Appellate Court to the effect that no suitable alternative accommodation was available with the landlord inasmuch as the accommodation available with him was only a passage with a latrine and bathroom and a 5' x 16 ft. shop vacated by Saukat Rai which was neither equal or an alternative suitable accommodation for the purpose of starting the business for his son. It is further submitted that the First Appellate Court has rightly reversed the finding recorded by the trial court as an accommodation which would become available to the landlord only after reconstruction or major modification, cannot be said to be an alternative suitable accommodation available with the landlord. Apart from the aforesaid, it is submitted by the learned counsel for the respondent that in case where a reversing judgment of the appellate court is based on cogent appreciation of evidence and documents on record, this Court cannot interfere with such a finding in view of the judgment of the Supreme Court in the case of Kashmir Singh v. Harnam Singh and Ors. : AIR2008SC1749 specifically para-10 therein. The learned counsel for the respondent/landlord has also relied upon the judgment of this Court reported in Kailash Chandra Shankarlal Trivedi v. Punjab National Bank Ltd. and Ors. 2000 (3) MPLJ 343, wherein this Court, after relying upon several judgments of the Supreme Court, has laid down the law that the sufficiency or suitability of an accommodation as an alternative to the one sought to be vacated is the choice of a landlord and the Court cannot substitute its own choice or view for the purpose of recording a finding that some accommodation available with the landlord, though differently situated, is suitable or sufficient for the purpose of his need.
5. I have heard the learned counsel for the parties at length and have also perused the judgment of the trial court specifically para-29 of the impugned judgment of the Appellate Court and have also gone through the evidence available on record specifically that of the landlord P.W-1 and his son Pankaj (P.W-2). From a perusal thereof it is apparent that the shop let out to the appellant/tenant is stated to be admeasuring 9' x 16 ft. It is also undisputed that adjacent to the aforesaid shop there is a passage admeasuring 4' x 16 ft. and adjacent to the passage there is a shop vacated by Saukat Rai admeasuring 5' x 16 ft. which is in the possession of the landord. However, it is also clear that the aforesaid area which is available to the landlord is not a single shop admeasuring 9' x 16 ft. and in fact the landlord would have to undertake extensive reconstruction to convert it into a shop and to demolish the walls of the latrine and bathroom as well as the passage. Admittedly, the accommodation vacated by Saukat Rai is admeasuring only 5' x 16 ft. whereas the accommodation in possession of the appellant is 9' x 16 ft. In such circumstances, the finding recorded by the trial court to the effect that the landlord has an alternative suitable accommodation which is in his possession and which had been vacated by Saukat Rai is perverse. It is also apparent that the trial court while dismissing the suit has stated that in case the respondent/landlord demolishes the wall as well as the latrine and bathroom and converts the area available with him into a shop, he would then have an alternative suitable accommodation and has also gone on to state that the landlord should undertake the aforesaid exercise instead of seeking eviction of the premises occupied by the appellant/tenant.
6. On the other hand, the first Appellate Court has clearly discussed the evidence on record and has recorded a conclusion that as the shop vacated by Saukat Rai is not equal to or a suitable alternative accommodation for the purposes of starting the business for the landlord's son nor is it equal in area to the shop rented out to the appellant. Apparently the conclusion, recorded by the trial court, is perverse and is contrary to the uncontroverted evidence on record that the shop vacated by Saukat Rai is a little more than half the size of the disputed tenanted premises.
7. In view of the aforesaid facts and circumstances and the analysis of the evidence on record, I am of the considered opinion that the finding, recorded by the First Appellate Court, regarding nonavailability of a suitable alternative accommodation with the landlord is perfectly justified and is in accordance with law and that the First Appellate Court has rightly reversed the finding recorded by the trial court in this regard.
8. In the case of Kashmir Singh (supra) the Supreme Court in para-10 has held that in case the appellate court has given satisfactory reasons for reversing the finding recorded by the trial court and even in cases where in the given set of circumstances two inference of facts are possible, the one drawn by the lower appellate court will not be interfered by the High Court in Second Appeal in the following terms:
10. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in Second Appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in Second Appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
9. In the case of Meenal Eknath Eshirsagar (Mrs) v. Traders and Agencies and Anr. : AIR1997SC59 and Prativa Devi (Smt) v. T.V. Krishnan : (1996)5SCC353 the Supreme Court has held that it is for the landlord to decide how he desires to beneficially enjoy his property and it is not for the courts to dictate to him the manner in which he should enjoy or utilize his property. Similar view has also been taken by this Court in Kailash Chandra Shankarlal Trivedi (supra).
10. In the case of Akhileshwar Kumar and Ors. v. Mustaqim and Ors. : [2002]SUPP5SCR57 , the Supreme Court has held that once the bonafide requirement of a landlord is established, as in the present case wherein there is a concurrent finding of fact to that effect and which is not assailed by the appellant in the present appeal, then the choice of the accommodation which would be more suitable for his requirement has to be left to the subjective choice of the landlord and the Court cannot thrust its own choice upon him and while discussing the availability of other alternative accommodation has held as under in para-4:
4. So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of Plaintiff 2. The suit was compromised and the shop was got vacated. The shop is meant for the business of Plaintiff 2. There is yet another shop constructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The court cannot thrust its own choice upon the needy. Of course, the choice has to be exercised reasonably and not whimsically. The alternative accommodations which have prevailed with the High Court are either not available to Plaintiff 1 or not suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of Plaintiff 2, who too is an educated unemployed, should be diverted or can be considered as a relevant alternative accommodation to satisfy the requirement of Plaintiff 1, another educated unemployed brother, cannot be countenanced. So also considering a shop situated over a septic tank and inaccessible on account of a ditch in front of the shop and hence lying vacant, cannot be considered a suitable alternative to the suit shop which is situated in a marketing complex, is easily accessible and has been purchased by the plaintiffs to satisfy the felt need of one of them.
Similarly in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta : [1999]3SCR1260 , wherein the landlord had other suitable accommodation available with him and on that ground the High Court had reversed the finding of the trial court, the Supreme Court while setting aside the judgment of the High Court and affirming the choice of the landlord in respect of the accommodation held as under in para-13:
13. .Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.
A perusal of the aforesaid judgments of the Supreme Court makes it clear that mere availability of another accommodation with the landlord does not disqualify him from claiming eviction specially in a case like the present one where it is an admitted fact that the shop vacated by Saukat Rai is quite small and, as it exists today, is not suitable for starting the business of the landlord's son.
11. In view of the aforesaid law laid down by the Supreme Court, I am of the considered opinion that in the instant case as the premises vacated by Saukat Rai is admittedly not equal in dimension to the shop occupied by the appellant/tenant, the landlord cannot be denied eviction on the ground that an alternative suitable accommodation shall become available to him if he undertakes extensive reconstruction by demolishing the wall of the latrine and bathroom adjacent to the area vacated by Saukat Rai, specially when his need would be satisfied if the shop in occupation of the appellant/tenant is made available to him.
12. In view of the aforesaid facts and circumstances, I do not find that any substantial question of law arises for adjudication in the present appeal. The appeal being meritless is, accordingly, dismissed. The judgment of the appellate court whereby the appellant/tenant has been directed to vacate the premises as the respondent has established his ground under Section 12(1)(f) of the Act is upheld. A decree be drawn up accordingly.
13. In the facts and circumstances of the case, there shall be no order as to the costs.