NARAYAN PRASAD PATWA Vs. SAHODRA BAI

JUDGEMENT

(1.) BY this appeal under Order 43 Rule 1 (u) of the Code of Civil Procedure, the appellant challenges the correctness, validity and propriety of the order dated 5.4.95 passed by Additional Judge to the Court of the District Judge, Narsinghpur in Civil Appeal No. 2 -A of 1994 setting aside the judgment and decree dated 13.3.92 passed by Civil Judge, Hand Class, Narsinghpur in Civil Suit No. 3 -A/ 86 remanding the case of the trial Court.

(2.) SHRI Patel submits that undisputedly the tenancy was for a composite purpose i. e. for residential and non -residential purpose. If that was so the defendant -tenant cannot be evicted from the suit premises on the availability of the ground under sec. 12 (1) (i) of the M. P. Accommodation Control Act. He submits that if the suit premises were let out for residential purpose only and it is found to the satisfaction of the Court that during the currency of the tenancy, the tenant has built, acquired or has been allotted a residential accommodation suitable for his residence then alone a decree can be passed for his eviction under Section 12 (1) (i). He submits that the First Appellate Court was unnecessarily influenced by the fact that the appellant has either constructed a house in the name of his wife or during the pendency of the suit has constructed another house after purchasing a plot. He submits that if the ground under Section 12 (1) (i) of M. P. Accommodation Control Act was not available to the landlord as the tenancy was for a composite purpose, the remand in itself would be illegal.

(3.) SECTION 12 (1) (i) provides 'that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted an accommodation suitable for his residence". A tenant can be evicted from the premises on availability of the ground under Section 12 (1) (i) if the suit premises were let out to him for residence and during the currency of the tenancy, he has built, acquired vacant possession of, or, been allotted an accommodation suitable for his residence. If the tenancy was for a composite purpose, Provision of 12 (1) (i) would not be applicable and even if the landlord proves that the tenant has built, or acquired possession of, or, has been allotted an accommodation suitable for his residence then too an eviction order cannot be made against him. If such is the legal position then a remand to examine the availability of the ground for eviction of the tenant under Section 12 (1) (i) is not necessary. The Court below did not appreciate the legal provisions in their true spirit. The appeal deserves to and is accordingly allowed. The order of remand is set aside. The First Appellate Court is directed to restore the matter to its orginal number and decide the appeal in accordance with law. As none appears for the other side before this Court, the Lower Court shall issue notice, to the respondent of this Court, from the Court side itself, and after effecting service on the said party, if she appears shall proceed to decide the appeal in accordance with law and if she does not appear then to proceed in accordance with law. The appellant shall appear before the first Appellate Court on 30.3.98.