GODHARAM Vs. VASUDEV PRASAD SHARMA

JUDGEMENT

(1.) This is tenant's second appeal under S. 100 of the Civil P. C., against the judgment and decree of eviction of non-residential accommodation, passed under S. 12(l)(d) of the M.P. Accommodation Control Act, 1961, for short, the 'Act', in Civil Suit No. 122-A/80 by Second Civil Judge, Class II, Morena, affirmed in Civil Appeal No. 57-A/85, vide judgment and decree dated 26-4-1986, passed by Additional District Judge, Sheopur-Kalan, Gamp Morena.

(2.) This Court, on 31/10/1986, admitted the appeal on substantial question of law for interpretation of S. 12(l)(d) of the Act and on the question that the ground having not been pleaded and proved, the decree so passed is illegal.

(3.) Material facts giving rise to this appeal are these. It is not in dispute that the defendant / appellant is a tenant of the non-residential accommodation of the suit accommodation on a monthly rent of Rs. 70/- vide rent Note dated 1/03/1969 (Ex.P/1) and was carrying on business of hotel in the name and style of "Pawan Restaurant". The landlord served a notice dated 4-5-1977 (Ex.P/3) of eviction on the ground of bona fide requirement and non-payment of arrears of rent, acknowledged by the tenant on 9-5-1977 vide Ex.P/4. Thereafter, the landlord /plaintiff instituted a suit for eviction on 25-7-1979 not only on the clauses of Ss. 12(l)(a) and (f), but also under Cl. (d)of S. 12(1), pleading in para 5 of the plaint, that the defendant / tenant has closed his business of Hotel (Pawan Restaurant) since last 1 1/2 years and the accommodation so let is lying closed, hence, the plaintiff is entitled to file a suit for eviction under S. 12(1 )(d) of the Act. The defendant, in the written statement, denied all the averments of the plaint. In reply to para 5, without specifically denying the case pleaded under clause (d), denied the averment without taking a stand that the accommodation so let, was not used owing to the "reasonable cause". On the pleadings under clause (d), the trial Court raised, issue No. 4 in the following terms: "Whether the defendant has closed his business in the suit shop and the shop is lying closed since 1'/2 years".