R.S. Jha, J.
1. This appeal has been filed by the landlord against the reversing judgment and decree of the First Appellate Court passed in Civil Appeal No. 59-A/2003, decided on 18-2-2005 whereby the judgment and decree passed by the Ninth Civil Judge, Class II, Jabalpur, in Civil Suit No. 5-A/97, decided on 22-4-2002 has been reversed and the suit filed by the landlord/plaintiff for eviction has been dismissed.
2. This Court had admitted this second appeal on the following substantial question of law:
(1) Whether non-examination of the plaintiff was fatal to the eviction suit, when her son Dr. Sanjeev Sarkar and his wife Dr. Rupa Sarkar were examined to prove their bona fide need
3. At the time of hearing it is observed that the following additional substantial questions of law also arise for adjudication in this appeal namely:
2. Whether the First Appellate Court has committed gross error of law by ignoring the extensive and cogent evidence on record in respect of bona fide need of the son of the appellant/plaintiff while allowing the appeal filed by the tenant? and
3. Whether in the absence of any pleading in the plaint, as amended by the appellant/plaintiff that in the presence of adequate evidence on record to the effect that she has no other alternative suitable accommodation in the city, the appeal filed by the landlord/plaintiff deserves to be dismissed?
4. In respect of the first substantial question of law it is submitted by the learned Senior Counsel for the appellant/plaintiff and that the appellant/ plaintiff had filed a suit for eviction of the shop situated in House No. 308/02 (old) Ram Manohar Lohia Ward, Marhatal, Jabalpur, which is in occupation of the respondent/tenant, for the purposes of bonafide requirement of her son for extending and expanding the hospital being run by him in the other portion of the accommodation. It is submitted that the Trial Court, on extensive examination of the evidence on record, recorded a finding to the effect that the tenanted premises was required bonafide by the appellant/plaintiff for her son for the purposes of establishing a modern hospital and decreed the suit, but the First Appellate Court allowed the appeal on the ground that the appellant/ plaintiff had failed to establish the bonafide requirement of the firm for whose requirement the accommodation was required on account of the fact that the appellant/plaintiff herself did not appear in the witness box to make a statement in respect of the bonafide requirement and in such circumstances the decree for eviction, sought by the appellant/landlord, could not be granted. It is submitted that in view of the fact that the accommodation was required for the bonafide requirement of her son Dr. Sanjeev Sarkar and his wife Dr. Roopa Sarkar, both of whom have been examined as P.W. 3 and P.W. 4 respectively, the First Appellate Court has erred in law in allowing the appeal filed by the respondent/defendant on this count as non-examination of the plaintiff cannot be said to be fatal to the appellant's case in the facts and circumstances of the present case.
5. The learned Counsel appearing for the respondent/defendant on the other hand submits that the plaintiff has not entered into the witness box to affirm the case set up by her before the Trial Court and in such circumstances the First Appellate Court was right in allowing the appeal by drawing an adverse inference in accordance with the provisions of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act').
6. Before I advert to the discussion on the aforesaid substantial question of law, it is appropriate to take note of the fact that the plaintiff had initially filed a suit claiming bonafide requirement of the accommodation for a firm of which she was alleged to be the managing partner. Subsequently, the plaint was amended before the Trial Court by adding Para 4-B therein and setting up a case of bonafide requirement of the son and daughter-in-law of the appellant/plaintiff and the matter was contested on that basis before the Trial Court and the Trial Court decreed the suit by recording a finding that the accommodation in question was required bonafide by the appellant/plaintiff for the requirement of her son. The First Appellate Court .allowed the appeal filed by the tenant on the ground that the appellant/plaintiff had failed to establish the bonafide requirement of the firm. Before this Court, the plaintiff filed an application for amendment for smoothening out the discordancy in the pleadings by amending the plaint by deleting the portion wherein requirement of the firm was pleaded and this Court by a detailed order allowed the amendment on 13-1-2009. Consequent amendment sought by the respondent/tenant in the written statement was also allowed by this Court on 20-1-2009 and, therefore, it is now an admitted fact that the suit filed by the appellant/plaintiff is for the bonafide requirement of her son.
7. It is also apparent from a perusal of the statements of Rajnikant Sarkar (P.W. 1), Dr. Sanjeev Sarkar (P.W. 3) and Dr. Roopa Sakar (P.W. 4) that the case set up by the appellant/plaintiff was in respect of bonafide requirement of her son and daughter-in-law. In Para 1 of the deposition of Rajnikant Sarkar (P.W. 1) has stated that he looks after the property of the plaintiff and has full knowledge about the case and that the appellant/plaintiff is unable to depose before the Court on account of advanced age. Dr. Sanjeev Sarkar (P.W. 3), in cross-examination in Para 11 of his evidence, has stated that the plaintiff is old and is not keeping good health and was, therefore, unable to appear as witness in the Court. From a perusal of the evidence of these witnesses, it is also manifestly clear that they have made specific and categorical statements in respect of the bonafide requirement of the tenanted accommodation for the business of Dr. Sanjeev Sarkar (P.W. 3), son of the appellant/plaintiff.
8. Section 114 of the Evidence Act, on which heavy reliance has been placed by the learned Counsel for the respondent, specifically Illustration (g) thereunder, reads as under:
114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume-
(a) *** *** *** ***(b) *** *** *** ***(c) *** *** *** ***(d) *** *** *** ***(e) *** *** *** ***(f) *** *** *** ***(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
9. Apparently, the presumption under Illustration (g) of the Evidence Act, can be drawn by a Court only against a person who withholds evidence which could have been produced by him but is not produced and in case it would have been produced it would not have been unfavourable to him.
10. In the instant case, the evidence that the appellant/plaintiff was required to adduce in support of her claim was in respect of bonafide requirement of the accommodation for the business of her son. That evidence has been brought on record extensively through the oral and documentary evidence and, therefore, there is no withholding of evidence by the appellant/plaintiff. It is also clear that the appellant/plaintiff could not depose before the Court in person on account of her old age and ill health. That apart, from a perusal of the evidence on record it is apparent that the respondent/defendant had full opportunity to adduce all documentary evidence to refute the claim of the plaintiff and has extensively cross-examined all the witnesses in respect of the bonafide requirement of the appellant/plaintiff. In such circumstances, I am of the considered opinion that the non-examination of the appellant/plaintiff is not fatal to the case of the appellant/plaintiff in the facts and circumstances existing in the present case and the conclusion recorded by the Appellate Court in this respect being erroneous, is unsustainable. The first substantial question of law is answered accordingly.
11. As far as the second substantial question of law is concerned, it is submitted by the learned Senior Counsel for the appellant that a perusal of the documents filed by the appellant/plaintiff as well as the oral evidence on record, the bonafide need of the plaintiff for establishing a full fledged modern hospital for her son and daughter-in-law is established and the Trial Court, on the basis of this evidence, gave a positive finding in favour of the landlord. It is submitted that the First Appellate Court, while deciding the appeal filed by the respondent/defendant, has not reversed the finding in respect of bonafide requirement of the son but has ignored the same by treating the case of the appellant/plaintiff to be one of bonafide requirement for the firm by ignoring the pleadings and evidence regarding bonafide requirement of the son and by recording a finding that the plaintiff has failed to adduce any evidence or establish the bonafide requirement of the firm has allowed the appeal.
12. The learned Senior Counsel for the appellant/plaintiff has taken this Court through the finding recorded by the First Appellate Court in Paras 41, 46 and 47 of the impugned judgment of the Appellate Court, wherein it has held that the finding of the Trial Court to the effect that the bonafide requirement of the firm is established is erroneous as the suit filed by the appellant/plaintiff was in respect of bonafide requirement of the firm but the evidence led by the plaintiff is in respect of bonafide requirement of her son, and has pointed out that the finding recorded by the First Appellate Court is perverse inasmuch as the Trial Court in Para 11 of the impugned judgment has clearly and specifically recorded a finding to the effect that on the basis of the oral evidence on record the case of the appellant/plaintiff is for the bonafide requirement of her son and not that for the firm and that the son requires the accommodation for establishing a modern hospital which may be managed by the firm and, therefore, the Trial Court had not recorded any finding to the effect that the appellant/plaintiff had established a case for bonafide requirement of the firm which alleged finding has been erroneously set aside by the Appellate Court.
13. On a minute scrutiny of the judgment of the Trial Court as well as the First Appellate Court, the contention of the learned Senior Counsel for the appellant appears to be correct as the Trial Court in Para 11 of its judgment, while allowing the evidence of the appellant/plaintiff has clearly stated that the case of the plaintiff before the Trial Court was for getting the accommodation vacated for the bonafide requirement of her son and not for the bonafide requirement of the firm and, therefore, the question of setting aside the finding of bonafide requirement of the firm by the First Appellate Court in Paras 41, 46, 47 and 48 does not arise. Apparently, the First Appellate Court misread the finding recorded by the Trial Court in this regard and, therefore, the finding recorded by it in this respect is perverse.
14. It is also apparent from a perusal of the statement of the architect who prepared the plan for the modern hospital namely; Neeraj Agrawal (P.W. 2), Dr. Sanjeev Sarkar (P.W. 3) and Dr. Roopa Sarkar (P.W. 4) and the map of the proposed modern hospital which has been filed by the appellant/plaintiff along with the plaint, that the case of the appellant/plaintiff is that the tenanted premises is required by the appellant/plaintiff for the bonafide requirement of her son to set up a modern hospital in the entire building and that the accommodation which is already in possession of the plaintiffs son in which he has commenced his medical practice is not sufficient for establishing the aforesaid modern hospital. It has been stated by the learned Senior Counsel for the appellant and agreed to by the learned Counsel appearing for the respondent that there were in fact seven shops in the house out of which five have been vacated and they are being utilized by the plaintiffs son and daughter-in-law for the purpose of their medical practice and only two shops, the one involved in the present appeal and the other involved in Second Appeal No. 1481/2005, are still in occupation of tenants. It is also clear from the evidence on record that the plaintiffs son, with a view to set up a modern hospital, is required to establish an Emergency Room, Sonography Unit, Consultation Chamber, Emergency Delivery Room, a Child Care Intensive Unit, etc. in the ground floor and for that purpose he needs the entire House No. 308/2 (old), Ram Manohar Lohia Ward, Marhatal, Jabalpur. For this purpose, he has filed a map alongwith the plaint indicating each of the aforesaid aspects specifically. It is also apparent from a perusal of the judgment of the Trial Court that on the aforesaid evidence a finding in the affirmative in respect of bonafide requirement of the landlord has been recorded by the Court below.
15. Though the finding has been assailed by the learned Counsel appearing for the respondent on the ground that the accommodation which has fallen vacant during the pendency of the suit and in which the plaintiffs son had already started his medical practice is sufficient for the purpose of his need, I am of the considered opinion that on the basis of the evidence on record, it is apparent that the appellant/plaintiff required the entire building for the purposes of establishing the modern hospital and that her requirement for her son is not satisfied nor is the accommodation available with him sufficient for the purposes of establishing the same. I also do not find any substance in the submission of the learned Counsel for the respondent that the accommodation is sought to be vacated only for the purposes of enhancement of rent, in view of the fact that the plaintiffs son has utilized the accommodation vacated during the pendency of the suit only for the purposes of the aforesaid hospital and has not let out the shops on higher rent which fact has been asserted by the respondent/defendant himself in the written statement. The plaintiff has, therefore, been able to establish his bonafide need for the accommodation.
16. The learned Senior Counsel appearing for the appellant/plaintiff, in support of his contention, has relied upon the judgment of the Supreme Court in the case of Joginder Pal v. Naval Kishore Behal : [2002]3SCR1078 , Yadvendra Arya and Anr. v. Mukesh Kumar Gupta : AIR2008SC773 and Kashmir Singh v. Hamam Singh and Anr. : AIR2008SC1749 .
17. The Supreme Court, in the case of Akhileshwar Kumar and Ors. v. Mustaqim and Ors. : [2002]SUPP5SCR57 , has held that once the plaintiff establishes her bonafide need for the accommodation then it is not for the Courts to decide as to the sufficiency or insufficiency of the accommodation as the need of landlord is paramount and he cannot be directed or forced to make do with the accommodation available with him nor can a decree of eviction be denied on the ground that the accommodation available with him is sufficient once the bonafide need of the landlord is established and has held in Para 4 as under:
4. ...Once it has been proved by a landlord that the suit accommodation is required bonafide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts the choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy....
18. Similarly, in the case of Shiv Samp Gupta v. Dr. Mahesh Chanel Gupta : [1999]3SCR1260 , it has been held in Para 13 as under:
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 bonafide need or genuine requirement heeds a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.
19. In view of the aforesaid law laid down by the Supreme Court and in the facts and circumstances of the present case, the second substantial question of law framed by this Court is answered in favour of the appellant/plaintiff and the finding recorded by the First Appellate Court in this regard in set aside.
20. As regards the third substantial question of law, it is submitted by the learned Counsel appearing for the respondent/defendant that in view of the amended plaint as it stands today, the plaintiff has not pleaded that she has no other alternative suitable accommodation available with her in the city of Jabalpur which is a mandatory requirement of Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') and in the absence of such pleadings, the suit filed by the appellant/plaintiff itself deserves to be dismissed and, consequently, the appeal filed by him also deserves to be dismissed.
21. Per contra learned Senior Counsel appearing for the appellant submits that the aforesaid submission of the learned Counsel for the respondent does not deserve consideration in view of the fact that the respondent/defendant did not, at any point of time, plead that the appellant/plaintiff had an alternative suitable accommodation available with her in the city of Jabalpur. On the contrary, the case set up by the defendant in the suit was that the plaintiff during the pendency of the suit had acquired possession of certain other shops in the same building as a result of which her requirement for setting up a modern hospital by her son stood satisfied and in such circumstances the contention of the learned Counsel for the respondent deserves to be rejected.
22. From a perusal of the record, it is clear that the pleading regarding non-availability of an alternative suitable accommodation stands deleted in the amended plaint and, therefore, the appellant/plaintiff has not made any specific pleading in writing to the effect that no alternative suitable accommodation is available with her in the city of Jabalpur, but she has stated in Para 4 of the plaint that the portion of the building in possession of her son Dr. Sanjeev Sarkar is not sufficient to cater for his needs and that he needs the entire accommodation for the purposes of running a hospital. It is also apparent from a perusal of Para 4 of the statement of Rajnikant Sarkar (P.W. 1), husband of the plaintiff, that he has unequivocally stated that they have no other alternative suitable accommodation in the city of Jabalpur. Similar specific statement has also been made by Dr. Sanjeev Sarkar (P.W. 3) in Para 1 of his deposition. On the contrary, there is no assertion or averment by the respondent/defendant to the effect that the plaintiff has some other suitable alternative accommodation in the city of Jabalpur.
23. The respondent/defendant has heavily relied upon the judgment of this Court passed in the case of Raj Kumar Jain v. Smt. Usha Mukhariya Second Appeal No. 973/2005, decided on 11-11-2008, in support of his contention that in the absence of any pleading in respect of the second part of Section 12(1)(f) of the Act, the suit and consequentially the appeal filed by the landlord claiming eviction on the ground of bonafide non-residential requirement deserves to be dismissed.
24. From a perusal of the judgment of this Court passed in Raj Kumar Jain v. Smt. Usha Mukhariya Second Appeal No. 973/2005 (supra), it is apparent that in that case, the plaintiff/landlord apart from not pleading and specifically stating in the plaint that she had no other alternative suitable accommodation in the city had also not made any such statement in her deposition. On the contrary, the defendant/tenant had specifically set up a case before the Court below that the plaintiff had acquired vacant possession of an alternative suitable accommodation during the pendency of the suit and had also put a specific question to that effect to the plaintiff in her cross-examination and the plaintiff had accepted the fact that she had acquired vacant possession of the shop but had not made any statement with regard to the fact that it was not an alternative suitable accommodation and, therefore, in the total absence of any pleading or proof, this Court relying upon the judgment of the Supreme Court in the case of Hasmat Rai and Anr. v. Raghunath Prasad : [1981]3SCR605 , had allowed the Second Appeal filed by the tenant.
25. Apparently, the facts of the present case are totally different. In the instant case, though in view of the amendment in the plaint, the pleadings in respect of availability of an alternative suitable accommodation are not there in the plaint but specific and categorical statement to that effect have been made by Rajnikant Sarkar (P.W. 1), husband of the plaintiff and Dr. Sanjeev Sarkar (P.W. 3), her son for whose need the accommodation is sought to be vacated. Pertinently, the respondent/defendant has neither set up a case in the written statement to the effect that the appellant/plaintiff has some suitable alternative accommodation in the city of Jabalpur nor have the witnesses been examined or cross-examined to that effect and, therefore, the present case is not one of total absence of any evidence as was the factual situation in the case of Raj Kumar Jain (supra), and, therefore, the reliance placed by the learned Counsel for the respondent/defendant on that judgment is misconceived.
26. In the case of Hasmat Rai (supra), the Supreme Court while analyzing the provision of Section 12(1)(f) of the Act, held that for obtaining eviction under that Section of the Act the landlord apart from showing that his need for the accommodation is bonafide, must also show that he has no other alternative suitable accommodation in the city and if he maintains utter silence on this issue, he cannot be granted a decree of eviction under Section 12(1)(f) of the Act.
27. In the case of Ram Narain Arora v. Asha Rani and Ors. : AIR1998SC3012 , the Supreme Court while dealing with a similar issue has specifically held that even in the absence of pleading, the Court can look into the evidence on record to determine the issue as to whether the landlord has in her possession some alternative suitable accommodation and that mere absence of pleading would not be fatal as the Courts cannot take up a pedantic or dogmatic approach in the matter, in the following terms in Paras 10 and 11:
10. In making a claim that the suit premises is required bonafide for his own occupation as a residence for himself and other members of his family dependent on him and that he has no other reasonably suitable accommodation is a requirement of law before the Court can state whether the landlord requires the premises bonafide for his use and occupation. In doing so, the Court must also find out whether the landlord or such other person for whose benefit the premises is required has no other reasonably suitable residential accommodation. It cannot be said that the requirement of the landlord is not intermixed with the question of finding out whether he has any other reasonably suitable accommodation. If he has other reasonably suitable accommodation, then necessarily it would mean that he does not require the suit premises and his requirement may not be bonafide: In such circumstances, further inquiry would be whether that premises is more suitable than the suit premises. Therefore, the questions raised before the Court would not necessarily depend upon only the pleadings. It could be a good defence that the landlord has other reasonably suitable residential accommodation and thereby defend (sic: defeat) the claim of the landlord.
11. There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the Court to decide the matter. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the Court, neither party is prejudiced. If we analyse from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller.
A reading of the aforesaid two judgments clearly indicates that the requirement of the provision of law is that the appellant/plaintiff must show or bring material on record to the effect that he has no other alternative suitable accommodation in the city. Neither of the aforesaid two judgments lay down the law that pleading in this respect in writing in the plaint is mandatory or that absence of such pleading would non-suit the landlord from claiming a decree of eviction under Section 12(1)(f) of the Act for bonafide non-residential requirement.
28. Even from a perusal of Section 12(1)(f) and other provisions of the Act, it is clear that there is no statutory mandate requiring that the plaintiff to maintain a suit on that ground, must compulsorily plead in the plaint that she has no alternative suitable accommodation in her possession. Even in the judgment of the Supreme Court in the cases of Hasmat Rai (supra) and Ram Narain Arora (supra), the Supreme Court has held that what is required is that the plaintiff must show, establish or prove that he has no other alternative suitable accommodation in the city and in view of the aforesaid lam unable to agree with the learned Counsel for the respondent/defendant that mere absence of pleading in the plaint in respect of non-availability of alternative suitable accommodation is fatal to the appellant's case specifically in the facts and circumstances of the present case, wherein the appellant/plaintiff, through the evidence of Rajnikant Sarkar (P.W. 1) and Dr. Sanjeev Sarkar (P.W. 3), who have specifically stated in their deposition that they do not possess any other alternative suitable accommodation in the city of Jabalpur, has been able to show, establish and prove the requirements of Section 12(1)(f) of the Act, more so in view of the fact that the respondent/defendant has neither pleaded nor set up a case that the plaintiff owned or possessed any other alternative suitable accommodation in the city of Jabalpur. On the contrary, what has been pleaded by the respondent/defendant is that the plaintiffs son, during the pendency of the suit, has acquired vacant possession of a portion of the same premises and, therefore, his need is satisfied and that the Trial Court, on the basis of the evidence on record, has specifically recorded a finding that the bonafide requirement of the plaintiffs son to establish a modern hospital in the entire building is not satisfied even on acquiring vacant possession of the vacated portion.
29. In the facts and circumstances of the present case, I am of the considered opinion that mere absence of pleading in the plaint in respect of non-availability of an alterative suitable accommodation, when there is adequate and sufficient oral evidence on record to the effect that the plaintiff does not possess any other alternative suitable accommodation in the city of Jabalpur, is not fatal to the plaintiffs case nor does it disqualify the appellant/plaintiff from seeking or being granted a decree of eviction under Section 12(1)(f) of the Act. The third question of law is answered accordingly.
30. In view of the aforesaid analysis, the judgment of the First Appellate Court reversing the judgment and decree of the Trial Court on the ground that the plaintiff has not established the need of the firm and that in the absence of examining the plaintiff in person, the suit filed by the appellant/plaintiff deserves to be dismissed, cannot be sustained and deserved to be set aside. I am also of the opinion that the plaintiff has been able to establish her bonafide requirement of the accommodation for establishing a modern hospital by her son and daughter-in-law and, therefore, the appeal deserves to be and is hereby allowed and the judgment and decree of the First Appellate Court passed in Civil Appeal No. 59-A/2003, decided on 18-2-2005 is hereby set aside.
31. In the result, the appeal filed by the appellant/plaintiff is allowed. A decree be drawn up accordingly.
In the facts and circumstances of the case, there shall be no order as to the costs.