Judgment:
Abhay M. Naik, J.
1. Short facts relevant for the purpose of this appeal are that the plaintiff/appellant instituted a suit for eviction and recovery of arrears of rent against the defendant/respondent, mainly, with the allegation that the defendant/respondent is a tenant in a non-residential premises belonging to the plaintiff/appellant on a monthly rent @ Rs. 190/- under an oral tenancy. Plaintiff/appellant was earlier engaged in the business of animal feed which has been handed over by him to his two major sons. Sons of the plaintiff/appellant closed the business of animal feed and started their business of ready-made garments in the premises, earlier occupied for the business of animal feed. Besides it, a small godown has been got vacated from a tenant, namely, Mohan Singh, which is being used by the plaintiffs sons for storing their stock of ready-made garments. It has been pleaded in the plaint that the plaintiff/appellant is carrying on the business of money-lending. However, he has no other non-residential accommodation wherein he may run the business of money-lending. He advances money to persons, who casually meet him. He has no vacant premises of his own where he may regularly sit and carry on the business of money-lending. Plaintiff/appellant, therefore, bonafide requires the suit premises to continue the business of money-lending.
2. Although, the suit was based also on ground under Section 12 (1) (a) of the M.P. Accommodation Control Act, but the same having been negatived by the learned Lower Appellate Court and further in the absence of a substantial question of law having been formulated on this ground, it is not necessary to burden this judgment with the facts relating to the said ground.
3. Defendant/respondent denied the claim of the plaintiff/appellant by filing a written statement. He inter alia stated that the suit premises is a godown and its rent is very much less in comparison to current rent. Plaintiff/ appellant is leading a retired life and his real intention is to seek eviction and to let it out at much more enhanced rate. This apart, it has been pleaded that the house of the plaintiff/appellant is very big which consists of ample accommodation. The premises vacated by the tenant Mohan Singh could well be utilised by the plaintiff. Thus, the alleged requirement of the plaintiff/appellant has been disputed on all possible counts.
4. Learned Trial Judge vide his judgment and decree dated 27-3-1997 granted a decree for eviction on the ground under Section 12 (1) (a) of the M.P. Accommodation Control Act, whereas, denied the same on the ground under Section 12 (1)(f) of the Act.
5. Aggrieved by the aforesaid, the defendant/respondent preferred appeal under Section 96 of the Code of Civil Procedure, whereas, the plaintiff/ appellant submitted cross-objections under Order 41 Rule 22 of the Code of Civil Procedure to the extent of denial of decree on the ground under Section 12 (1) (f) of the M.P. Accommodation Control Act.
6. Learned Lower Appellate Judge vide his judgment and decree dated 14-5-1998/18-5-1998 allowed the appeal of tenant, simultaneously disallowing the cross-objections. Resultantly, the suit for eviction stood dismissed.
7. Aggrieved by the aforesaid, the present appeal has been preferred by the plaintiff/appellant which has been admitted on the following substantial question of law:
Whether the Court below erred in dismissing the suit of appellant on the ground of bonafide necessity while the plaintiff has proved aforesaid necessity by examining himself and his witnesses ?
8. Shri Rohit Arya, learned Senior Advocate, for the appellant, confined his arguments to the aforesaid substantial question of law only. Consequently, the judgment does not contain discussion except on the substantial question of law quoted hereinabove. Shri Arya, learned Senior Counsel, contended that the plaintiff/appellant has clearly established that he bonafide requires the suit premises for continuing his business of money-lending. Equally, it has been established that there is no other alternative vacant non-residential accommodation of his own in the city of Bhopal. Funds are not a requisite to seek eviction on ground under Section 12 (1) (f) of the Act. It is a settled law that funds (requisite money) are not required to be proved for claiming eviction under Section 12 (1) (f) of the M.P. Accommodation Control Act. In this view of the matter, the suit ought to have been decreed. In support of his submissions Shri Rohit Arya, learned Senior Counsel, cited the following decisions which have been dealt with in the succeeding paragraphs:
Bhoolchand and Anr. v. Kay Pee Cee Investments and Anr. : AIR1991SC2053 , Ramjidas and Anr. v. Rambabu and Ors. (2000) 9 SCC 329, Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta : [1999]3SCR1260 and Prem Narayan Barchhiha v. Hakimuddin Saifi : AIR1999SC2450 .
9. Shri Devashish Sakalkar, learned Counsel for the respondent while supporting the impugned judgment and decree did not choose to cite any ruling.
10. I have considered the submissions in the light of the pleadings & evidence available on record.
11. Before proceeding with the matter on merits, I feel it proper to refer to the judgment of the learned Trial Judge wherein it has been observed that the plaintiff issued a notice for eviction for starting the business of steel and furniture in the suit shop. Suit was instituted within six months from the date of notice and the same has been based only on the alleged need for business of money lending. However, again during the evidence, the plaintiff stated on oath that he needs the suit premises for the business of money lending as well as of steel and furniture. The suit premises is 8' x 10' feet area which is extremely small for running the aforesaid two proposed businesses. Learned Trial Judge has further observed that although it is not necessary to mention a specific business for which the premises is required. However, it has been observed that the suit shop was initially required as per notice for the business of steel and furniture. At the time of institution of suit, eviction was sought, merely, for continuing business of money lending. Lastly, at the time of evidence, his need for business of money lending as well as that of steel and furniture, was projected. On account of this variation, learned Trial Judge has held that bonafide requirement of the plaintiff/appellant is not established. Referring to the submissions of the plaintiff, it has been further found that the plaintiff is in possession of ample alternative accommodation of his own and his alleged need looking to the nature of the proposed business is neither real nor bonafide.
12. On appeal, the judgment and decree of the learned Trial Judge in relation to ground under Section 12 (1) (f) of the said Act has been confirmed by dismissing the cross-objections. Thus, the absence of bonafide need has been found by both the Courts below in a concurrent manner. Apex Court in the case of Sheel Chand v. Prakash Chand : AIR1998SC3063 was dealing with an identical following substantial question of law:
Whether the finding relating to bonafide requirement of the appellant of the Courts below is vitiated due to irrelevant consideration and not under law ?
It has been held in Sheel Chand's case (supra) that:
7. The question of law formulated by the learned Single Judge, noticed above, strictly speaking is not even a question of law, let alone a substantial question of law. The existence of a 'substantial question of law', is the sine qua non for the exercise of jurisdiction by the High Court under the amended provisions of Section 100, CPC. It appears that the learned Single Judge overlooked the change brought about to Section 100, CPC by the Amendment made in 1976. The High Court unjustifiably interfered with pure questions of fact while exercising jurisdiction under Section 100, CPC. It was not proper for the learned Single Judge to have reversed the concurrent findings of fact while exercising jurisdiction under Section 100, CPC.
13. In view of the aforesaid, if, the findings of fact recorded by the Courts below are based on proper appreciation of evidence and the material on record, there cannot be an interference in the impugned judgment. It is equally true that if the concurrent findings are manifestly unjust, this Court has ample power to make interference because injustice cannot be permitted to be perpetuated specifically because it has been done twice by the Courts below. I may successfully refer to the Supreme Court decision in the case of Variety Emporium v. R.M. Mohd. Ibrahim Naina : [1985]2SCR102 . However, in making interference, it must be found that the conclusions arrived at by the Courts below or Lower Appellate Court are erroneous being contrary to the mandatory provisions of law applicable, or its settled position on the basis of pronouncement made by the Apex Court, or are based upon an inadmissible evidence or arrived at without evidence. Reference may be made to Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. : [1999]2SCR728 .
14. Shri Arya, learned Senior Advocate, submitted that the Courts below have wrongly interpreted the words 'required bonafide' occurring in Clause (f) of Section 12 (1) of the M.P. Accommodation Control Act. For this purpose, he relied on the decision of the Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta : [1999]3SCR1260 and contended that the bonafide requirement of the plaintiff has been duly established. It has been held in Shiv Sarup Gupta's case (supra), that:
13. Chambers 20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The word 'genuine ' means 'natural : not spurious: real: pure: sincere'. In Law Dictionary, Mozley and Whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradiction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord.
15. Reliance has been also placed on the decision in the case of Prem Narayan Barchhiha v. Hakimuddin Saifi : AIR1999SC2450 which lays down that residential accommodation cannot be treated as an alternative accommodation in a case for eviction from non-residential accommodation and vice versa. This being not a situation here, the appellant would not get any advantage of this judgment. Lastly, he relied on the decision of the Apex Court in the case of Bhoolchand and Anr. v. Kay Pee Cee Investments and Anr. : AIR1991SC2053 to contend that the ground of bona fide requirement may well be proved by oral evidence.
16. Now coming to merits of the case in hand, it may be seen that the words 'bonafide requirement' have been interpreted repeatedly by the Hon'ble Supreme Court of India. They mean a requirement which is more than a mere desire, but less than an absolute necessity. On one hand, the alleged requirement must not be an outcome of whims and fancy of the landlord and, simultaneously, on the other hand they should contain an element of need. The words 'bonafide requirement' undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire. It is necessary to seek eviction on this ground that there must be an element of need before a landlord can be said to have required premises for his own use or occupation. It is not enough that the landlord should merely desire to use and occupy the premises. What is necessary is that he should need them for his own use and occupation. Thus, an element of need, howsoever, small in degree must be there. In the absence of an element of need, it becomes merely a case of desire of the landlord and no decree for eviction is permissible by Court of law on this ground. I may successfully refer for this purpose to the Supreme Court decision in the case of Bega Begum v. Abdul Ahad Khan : [1979]2SCR1 and Phiroze Bamanji Desai v. Chandrakant M. Patel : [1974]3SCR267 .
17. Now it is almost a settled law that for seeking eviction on the ground of bona fide requirement for non- residential purpose, no liquid money (fund) is required to be proved. Reliance for this purpose may be placed on the Supreme Court decision in case of Mattulal v. Radhe Lal : [1975]1SCR127 . This is obviously because under Section 12 (1) (f) of the M.P. Accommodation Control Act, a plaintiff/landlord is required also to be the owner of the suit premises. Obviously, a person who owns an immovable property has got always potential to raise the money. However, in the present case, the proposed business is of money lending itself which need liquid money.
18. In this view of the matter, the case in hand is little different. It is not the pleaded case of the plaintiff/appellant that he would raise the money for lending purposes. Moreover, he has sought eviction for his continuing business of money-lending. Had it been a case of starting business of money lending in the suit premises, the plaintiff/appellant would have been on different footing. It is not a case of the plaintiff that he would start the business of money lending after obtaining a valid registration certificate as money lender. His case as pleaded is that he is already engaged in the business of money lending and the suit shop is required bonafide by him for his continuing business of money lending. In a case of continuing business of money lending (if it is true), the plaintiff/appellant must be possessed of adequate surplus liquid money in order to enable him to lend it as per the requirement of prospective debtors/loanees. In Paragraphs 4 and 5 of his statement, it has been expressly stated that the plaintiff is engaged in the business of money lending. Again in Paragraph 12 of his statement, he has stated that he holds a license of money lending and maintains accounts. Thus, the plaintiff as per himself is engaged in the business of money lending for number of years. Neither the certificate of money lending nor the account books have been produced before the Court which compelled the Courts below to arrive at the conclusion that the alleged need of the plaintiff is not genuine.
19. In the State of Madhya Pradesh, the M.P. Money Lenders Act, 1994, is already in force. Section 2-A of the Act, requires a money lender, on advancing a loan to a debtor to deliver to the debtor a voucher containing description of loan and rate of interest and other particulars as required thereunder. Section 3 obliges a money lender to maintain the accounts. Section 11-B of the Act reads as under:
11-B. Registration of money lenders and registration certificate.- (1) Every person who carries on or intends to carry on the business of money lending shall get himself registered by an application made to the Tehsildar of the Tehsil of the District or any one of the Districts in which he carries on or intends to carry on such business and, on such registration the Tehsildar shall grant a registration certificate to him in such form as may be prescribed:
Provided that no person being a firm or partner of a firm of money lenders shall be so registered except upon production before the Tehsildar of a certified copy of an entry showing such person as the firm or partner, as the case may be, made in the Register of Firm under Section 59 of the Indian Partnership Act, 1932 (No. 9 of 1932).(2) The application made under Sub-section (1) shall be in writing and shall specify the district or districts in which the applicant carries on or intends to carry on the business of money lending and such other particulars as may be prescribed.'
Section 11-F of the Act, prohibits a person from carrying on the business of money lending unless he holds a valid registration certificate in respect of that district. Sub-section (2) of Section 11 -F makes it an offense when a person having no valid registration certificate, carries on the business of money lending.
20. Although, the plaintiff has stated on oath that he holds an old money lending licence, he has not chosen to produce and prove it. In the absence of production of money lending certificate as well as account books an adverse inference may well be drawn against the plaintiff. Moreover, in view of Section 91 of the Indian Evidence Act, oral evidence pertaining to the aforesaid stood excluded. All the aforesaid factors reflect upon the bonafides of the plaintiff appellant and the Courts below in the facts and circumstances of the case are not found to have committed any error in finding that the alleged need of the plaintiff/appellant is not bonafide.
21. As important feature arising from the aforesaid is that whether a bonafide requirement may be held to be proved by Courts of law with respect to a business which is not proved to have been performed/carried on in accordance with law (i.e., Section 11-F of the M.P. Money Lenders Act, 1934). Plaintiff having not chosen to submit the money lenders certificate and further an adverse inference having been drawn against him, the alleged continuing business of money lending business of the plaintiff would be treated as in contravention of law [sub-section (2) of Section 11-F] and such an alleged requirement cannot be termed as real or genuine in the eye of law. Alleged requirement in order to be bonafide must be true, real and in good faith. In the absence of the account books and money lenders certificate, the alleged need can, obviously, not be treated as bonafide.
22. Apart from the aforesaid, it may be seen that the plaintiff in Paragraph 9 of his statement has admitted during the cross-examination that he has a small godown with him which is vacant for the last 5-6 years. It may further be seen that the plaintiff/appellant had earlier submitted a map along with the plaint which is marked as Exh. P-1. In Paragraph 12 of his statement, it has been stated by the plaintiff that he has already sold a substantial part of his property. However, the sale deed executed by the plaintiff has not been placed on record which would have enabled the Courts below to determine the extent of the accommodation (including non-residential) available with the plaintiff. This also reflects upon the bonafide of the plaintiff and the Courts below are found to have rightly concluded about the absence of bonafide on the part of the plaintiff/ appellant.
23. Shri Rohit Arya, learned Senior Advocate, has been unable to show that the findings of the Courts below can legally be disturbed except on parameters prescribed by the Apex Court in the case of Kondiba Dagadu Kadam (supra). Neither violation of law nor perversity could be established by the learned Senior Counsel.
24. This being so, it is found that the Courts below have not committed any error in negating the alleged bonafide requirement of the plaintiff in the facts and circumstances made out by the pleadings and material on records. The defects pointed out by the learned Senior Counsel for the appellant do not really make out a case of involvement of substantial question of law in the appeal. However, the substantial question of law having been already framed, I answer it against the appellant.
25. Resultantly, the appeal is dismissed, however, without order as to costs.