ALEAMMA Vs. SETH MEGHRAJ

JUDGEMENT

(1.) THIS is tenant's appeal u/s 100 C.P.C. challenging legality of a decree of eviction dated 26.11.84 passed by Shri D.S. Jain, 5th Addl. District Judge, Jabalpur in Civil Appeal No. 5 -A 1983 affirming the Judgment and decree dated 24.1.191)3 passed by Tenth Civil Judge Class II Jabalpur in Civil Suit No. 74 -N83 directing eviction of the appellant from the suit -house.

(2.) IT is not in dispute that the appellant is a tenant of out house No.1 owned by the respondent on a monthly rent of Rs.21/ - having taken the same for residential purpose. It is so not in dispute that she used to live in the said premises with her husband. Her husband has, since last about 5 -6 years of the date of the filing of the suit, started running a Homoeopathic dispensary at the premises. The respondent brought the suit on the ground that the appellant being a servant of P. and T. Department had been allotted a Govt. quarter where she has shifted and thereafter the tenanted premise is being used exclusively for Homoeopathic Clinic. There were other grounds also but they are not material for the present appeal. The appellant denied that there was any change in the user or there was non -user of the premises. She further denied that she has been allotted any Government quarter and asserted that she was still living in the tenanted premises. The appellant, however, admitted that her husband was running the Homoeopathic Clinic during the day but submitted that this did not amount to change in user of the premises. The learned trial Judge, on appreciation of evidence, adduced by the parties, held that the husband of the appellant was using the premises for running the Homoeopathic Clinic which amounted to change in user without sufficient cause. This, according to the learned trial Judge was a ground u/s 12 (1)(d) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the Act) Justifying eviction of the appellant. The appellant challenged legality of the aforesaid Judgment and decree by filing an appeal before the learned Addl. District Judge. The respondent, however, remained satisfied and did not challenged the decree passed by the trial Court either by filing his own appeal or cross -objection. The learned lower appellate Court, on consideration of evidence, held that the Homoeopathic Clinic run by the appellant's husband was in the whole house. The learned Judge also held that the appellant had been allotted a Govt. quarter and had shifted there. The learned lower appellate Court, therefore, not only affirmed the decree passed by the learned trial Court but also added that the appellant was liable to be evicted u/s 12 (1)(c) of the Act. It is this decree which is impugned in the present appeal.

(3.) THE grievance, in the opinion of this Court, is fully justified. The two provisions are separate and independent and deal with two different situations. While section 12(1)(c) of the Act deals with inconsistent user. Section 12(1)(d) of the Act furnishes ground for eviction on the ground of non -user. This difference has been clearly explained in a recent judgment of this Court in Shabbir Hussain Gulam Hussain v. Rubab Bai Inayat Hussain -1. Under the circumstances, it is open to a landlord to request eviction of his tenant on either or both the grounds but in each case he has to specifically plead and prove those grounds. As far as section 12(1) -2 -(d) of the Act is concerned, this Court in Bhagwandas v. Kailash Narayan, has explained that the landlord has to plead and prove that the accommodation had not been used for the purpose for which it was let out and that the non -user was continuous for a period of six months immediately preceding the date of the institution of the suit. When the landlord has duly established these requirements, onus shifts on the tenant to establish that his default which has rendered him liable to eviction, was condonable by the Court because he has a reasonable cause. This Court, explaining the aforesaid, has laid down as under : -