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 of 1983 affirming the judgement and decree dated 24-1-1983 passed by Tenth Civil Judge Class II Jabalpur in Civil Suit No. 74-A/83 directing eviction of the appellant from the suit-house.

(2.) It is not in dispute that the appellant is a tenant of our house No. 1 owned by the respondent on a monthly rent of Rs. 21/- having taken the same for residential purpose. It is also 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 Homeopathic 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 premises is being used exclusively for Homeopathic 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 had 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 Homeopathic 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 Homeopathic 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 judgement and decree by filing an appeal before the learned Addl. District Judge. The respondent however remained satisfied and did not challenge the decree passed by the trial Court either by filing his own appeal or a cross-objection. The learned lower appellant Court, on consideration of evidence, held that the Homeopathic 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 first submission of the learned counsel for the appellant is that the trial Court having passed the decree u/S. 12(1)(d) of the Act and negativing the claim u/S. 12(1)(c) of the Act, the lower appellate Court acted outside its jurisdiction in passing a decree u/S. 12(1)(c) of the Act also without there being any appeal or cross-objection by the respondent.