LKRAR MOHAMMAD Vs. LSUB KHAN

JUDGEMENT

(1.) THIS appeal involves a crucial question that whether the lower appellate Court contrary to the finding of the trial Court about absence of bona fide with regard to requirement under section l2 (1)( f) of M.P. Accommodation Control Act can grant a decree for eviction on its own notions beyond the pleadings as well as case projected in evidence. This appeal is by the tenant against judgment and decree passed by the lower appellate Court directing thereby eviction of the defendant appellant from the suit shop. It has been admitted and heard on the following substantial question of law: "Whether the finding of the learned first appellate Court that the suit shop is still required for plaintiff's own business and he has no alternative suitable accommodation for the same in his possession inspite of possession of adjacent shop of same dimensions having been received by him from another tenant, is vitiated in the absence of specific plea to that effect by the respondent and also for want of challenge of the finding recorded by the learned trial Court vide its order dated 5.7.2004."

(2.) FACTS relevant for the purpose of this appeal are that the plaintiff respondent instituted a suit for eviction and arrears of rent with allegations that the defendant is tenant in the shop owned by the plaintiff. He was inducted into tenancy @ 250/ - p.m., vide rent note dated 17.1.1996. Plaintiff is a poor labourer performing his work with the aid of hand -cart. He, bona fide, needs the suit shop to start his grocery business. Suit shop is in dilapidated condition. Its walls are quite weak and have developed cracks, which may fall down at any moment. It cannot be repaired without eviction. Defendant is in arrears of rent w.e.f. 17.1.1996. A demand notice was issued on 31.7.2000, which was served upon him. Despite notice, defendant did not pay the rent nor did he vacate the suit shop, hence the suit.

(3.) AFTER recording the evidence, learned trial Judge decreed the suit in favour of the plaintiff on 26.8.2003 on the ground under section 12(1)(f) of the M.P. Accommodation Control Act, 1961. However, other grounds for eviction were declined. Aggrieved by it, Civil Appeal No.23 -A/04 was submitted. In this appeal, an application for amendment was submitted that the plaintiff had acquired vacant possession of adjacent shop from his tenant one Mushtaq Khan, Choice Tailor. In view of the subsequent event, the plaintiff is not entitled to seek eviction. This application was opposed on the ground that the said shop was quite small and was insufficient to run the business of grocery. Application for amendment was allowed by the learned lower appellate Court vide order dated 11.5.2004. Consequently, the learned lower appellate Judge remitted back the matter to the trial Court with a direction to allow the plaintiff to make consequential amendment and to record evidence after raising additional issue in respect of amended version.