PURSHOTTAM DAS PATEL Vs. UTTAM CHAND

JUDGEMENT

(1.) THIS is tenant's appeal under section 100 of the Code of civil Procedure. Plaintiffs-landlords filed Civil Suit No. 35-A/94 for eviction of the tenant (hereinafter referred to as landlord and tenant respectively) on the ground that the landlord requires the suit accommodation for non-residential purpose and that they have no other suitable non-residential accommodation for the said purpose in the town, which is a ground for eviction under section 12 (1) (f) of the M. P. Accommodation Control Act. Civil Judge Class II by his Judgment and decree dated 30th August, 1995 passed in Civil Suit No. 35-A of 1994 decreed the suit. Aggrieved by the same, tenant preferred civil suit No. 31-A/96 and the 6th Additional District Judge, bhopal by his judgment and decree dated 24th April, 1996 dismissed the appeal By order dated 14-5-1996 the appeal was admitted on the following substantial questions of law :

(2.) FACTS necessary for the decision of the aforesaid substantial question of law are that before the lower appellate Court the tenant filed application under Order 6, Rule 17 of the Code of Civil Procedure which was considered, while disposing of the appeal, and the same was rejected. By the said application amendment sought for by the tenant was that in March, 1996, the ground floor of the suit accommodation has been vacated by the Central undertaking namely D. E. T. which consist of the following accommodation : (i) One hall of the size of 22 ft. x 12 ft. (ii) Another hall of the size of 22 ft. x 24 ft. (iii) One room of the size of 10 ft. x 12 ft. (iv) One room of the size of 8 ft. x 20 ft. and (v) One room of the size of 10 ft. x 17 ft. It has been further stated in the amendment application that the accommodation vacated by D. E. T. is sufficient to meet the bona fide requirement of the landlord. It has been stated that the entry to the ground floor is from two sides i. e. one from the Hawa Mahal road and another from the side of Hamidia Hospital. According to the tenant the landlord has got more than sufficient accommodation for his bona fide requirement. Landlord filed reply to the aforesaid application and they have stated that the amendment has been sought for only to delay the disposal of the suit. It has been further stated that accommodation consisting of rooms vacated by the D. E. T. are not shops, but rooms. The lower appellate Court decided the aforesaid application filed by the tenant under Order 6, Rule 17 of the Civil Procedure Code is in the following words :

(3.) SHRI Qamaruddin, appearing on behalf of the appellant submits that there was no material before the lower appellate Court to come to a finding that the accommodation vacated during the pendency of the appeal is not suitable and only on the ipse dixi of the landlord in reply to petition filed by the tenant that it has held that the amendment is not fit to be allowed. Mrs. Menon however appearing on behalf of the landlord submits that the materials already in existence demonstrate that the accommodation vacated during the pendency of the appeal is not suitable. Shri Qamaruddin contends that the lower appellate Court ought to have allowed the application and remitted the matter back to the trial Court for adducing evidence on the question of availability of suitable accommodation during the pendency of the appeal and the lower appellate Court committed an error of law in not allowing the same. In support of the aforesaid submission, learned counsel has placed reliance on a Judgment of the Supreme Court in the case of Hasmat Rai vs. Raghunath Prasad, AIR 1981 SC 1711 and my attention has been drawn to the following passage from paragraph 14, which reads as under:-