NAMAMAL Vs. PRAKASHCHAND JAIN

JUDGEMENT

(1.) THE appellant/tenant being aggrieved by judgment and decree dated 17. 1. 2005 passed by the First Appellate Court in Civil Appeal No. 44-A/2004 whereby the judgment and decree passed by the First Civil Judge, Class-II, Jabalpur, in Civil Suit N. 57-A/98 dated 2. 2. 2001 has been reversed and the suit filed by the landlord/plaintiff for eviction of the appellant on the ground mentioned in Section 12 (1) (f) of the m. P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') has been allowed.

(2.) THE second appeal was admitted by this Court on the following two substantial questions of law:-

(3.) IN respect of the substantial questions of law, which are intricately interlinked, it is submitted by the learned counsel appearing for the appellant that the landlord/respondent did not make any specific averment in the plaint regarding the alternative premises vacated by one Saukat Rai and which was in the possession of the landlord/plaintiff inspite of the fact that the aforesaid accommodation was suitable for the needs set up by him for establishing the business of his son. It is submitted that the trial court, in para-29 of its judgment, has discussed this aspect in detail and recorded a finding that adjacent to the tenanted premises there was a passage which was 4' x 16 ft. besides which the accommodation vacated by Saukat Rai admeasuring 5' x 16 ft. was available with the landlord and in case the respondent/landlord demolishes the wall and reconstructs it, he would have an area of 9' x 16 ft. available to him for the purpose of starting the business of his son which area is equal to the area which had been let out to the appellant. It is submitted that the trial court, after taking into consideration the aforesaid facts and circumstances, dismissed the suit filed by the respondent/landlord, but the First Appellate Court reversed the judgment and decree of the trial court by recording a finding that the accommodation available with the respondent/landlord was not a suitable alternative accommodation. It is submitted by the learned counsel for the appellant that the finding recorded by the appellate court is perverse and is not based on the evidence on record wherein the landlord P. W-1 and his son Pankaj (P. W-2) have clearly stated in their evidence that the accommodation vacated by Saukat Rai and the passage adjacent to it were available. In such circumstances, it is submitted that the impugned judgment and decree of the appellate court deserves to be set aside and the judgment and decree of the trial court, dismissing the suit filed by the landlord, deserves to be reaffirmed.