NARAYANDAS Vs. SHAKUNTALA

JUDGEMENT

(1.) THIS is an appeal under Section 100 of the Code of Civil Procedure filed by the defendants, who are the legal representative of Magan, the original defendant. This appeal is directed against the judgment and decree dated 26.2.1996 passed by Second Additional District Judge, Katni, in Civil Appeal no. 36 -A of 1989 arising out of judgment and decree dated 3.4.1980, passed by the IInd Civil Judge Class -II Murwara, in Civil Suit No. 108 -A of 1977. The connected Second Appeal No. 246 of 1996 (Vijay Kumar v. Smt. Shakuntala Bai and four others) is filed by another illegal representative of the erstwhile tenant against the same judgment and decree. Thus, both these appeals involve common questions of the facts and law and consequently, the disposal of this appeal shall govern the disposal of the Second Appeal No. 246 of 1996.

(2.) GIRDHARILAL Gattani filed Civil Suit No. 21 -A of 1962 for eviction against the original defendant, Magan, who occupied his non -residential premises as a tenant. The plaintiff took the plea that the suit premises were required by him for starting his business and he had no alternative accommodation of his own in the town of Katni. It is clear from the paragraphs 3 and 3 -A of the plaint filed by him that his case was confined to eviction of Magan on his personal requirement only under Section 12 (1) (f) of Madhya Pradesh Accommodation Control, Act 1961 (henceforth 'the Act' for short. No claim for eviction was made by Gifdharilal Gattani that the suit premises were also required for starting the business of any one of his major sons or an unmarried daughter.

(3.) MAGANLAL filed a Civil Appeal No. 17 -A of 1965 against the aforesaid decree passed in favour of Girdharilal on 18.2.63, by Civil Judge Class -II, Murwara, in Civil Suit No. 21 -F of 1962. During the pendency of this appeal Girdharilal died and the respondents No. 1 to 5, in this appeal, were substituted in his place of Civil Appeal No. 17 -A of 1965. At the time of death of Girdharilal, his sons, the respondents No. 2, 3 and 5 were minors. The respondents No. 1 is his wife and the respondent No. 5 is his brother. It is clear from Paragraph 7 of the order of remand passed by the learned Judge in Civil Appeal No. 17 -A of 1965 that both the parties filed amendment applications. The respondents No. 1 to 5 claimed that even after death of Girdharilal the bona fide requirement of his wife and sons continued. The appellant Mganlal in that appeal sought amendment in the written statement to show that after the death of Girdharilal, the bona fide requirement pleaded in the suit came to an and. The lower appellate Court allowed the amendment in the plaint holding that it was necessary to decide the controversy in the suit. It directed that the trial Court shall permit the respondents to incorporate the amendment. It shall give opportunity to Maganlal to amend the written -statement and, then after framing the necessary issue, the civil suit shall be tried. The lower appellate Court specifically gave the finding that on account of the death of Girdharilal, his personal bona fide requirement ended with him. It is clear from paragraph 7 of the order of remand that the respondent had amended the plaint that the need for eviction continued in favour of the respondents and the death of Girdharilal did not affect the need.