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Cites 5 docs
Sri Kempaiah vs Lingaiah & Ors on 31 October, 2001
Raja Muthukone (D) By Lrs vs T. Gopalasami And Anr on 21 March, 2002
Sayeda Akhtar vs Abdul Ahad on 18 July, 2003
Ouseph Mathai & Ors vs M. Abdul Khadir on 5 November, 2001
R.C. Tamrakar And Anr vs Nidi Lekha on 16 October, 2001

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Chattisgarh High Court
Suresh Kumar Jain vs Chandradeep Tamrakar on 7 July, 2009
       

  

  

 
 
             HIGH COURT OF CHATTISGARH AT BILASPUR      




                 First Appeal No 92 of 2004





                     Suresh   Kumar  Jain
                                        ...Petitioners


                           Versus



                      Chandradeep  Tamrakar
                                           ...Respondents




  {Appeal under Section 96 of the Code of Civil Procedure,
                            1908}

!     Mr.  H.B.  Agrawal,  Senior Advocate  with  Mr.  Somkant Verma, Advocate for the appellant


^     Mr. V.G. Tamaskar, Advocate for the respondent





Honble Mr. T.P. Sharma, J 




       Dated:07/07/2009



:       Judgment

                          JUDGMENT

(Delivered on 7th July, 2009)

1. This is the tenant's appeal against the judgment & decree dated 8-4-2004 passed by the 8th Additional District Judge (F.T.C.), Durg in Civil Suit No.1A/2003, whereby learned Additional District Judge has decreed the suit on the ground of bona fide need for non-residential purpose and under Section 12 (1) (a) of the Chhattisgarh Accommodation Control Act, 1961 (for short `the Act') on the ground of arrears of rent, simultaneously the Court below has dismissed the counter claim of the appellant/defendant for permanent injunction.

2. Judgment & decree are challenged on the ground that without any bona fide need and default in payment of rent the Court below has decreed the suit and has not considered the counter claim and thereby committed illegality.

3. Case of the plaintiff/respondent, in brief, is that the present respondent is landlord and the appellant is tenant of the suit premises i.e. the shop situated in Ward No.27, Tamerapara, Near Moti Complex, Durg. Suit premises was given on rent to the appellant on monthly rent of Rs.850/- for non- residential purpose. Presently the plaintiff is working in Nath Medical Stores and the suit accommodation is required for business of the plaintiff bona fidely, no alternate suitable vacant accommodation is available at Durg. The defendant has not deposited rent since 1999. Notice for demand of rent has been served upon him, but he has failed to deposit rent and has not vacated the suit premises. Suit for eviction from the aforesaid land was filed along with damages @ Rs.150/- per day.

4. In written statement, the appellant has admitted landlord & tenant relationship, but denied the fact that the respondent is working in Nath Medical Stores. The appellant has specifically stated that the respondent is not servant in Nath Medical Stores, but he is Director & Owner of the said shop. With a view to harass the appellant the present respondent has filed suit for eviction along with damages. The respondent is in the habit of harassing the tenants and as a result of such harassment, one tenant has vacated the rented accommodation. The respondent is also harassing the present appellant. Rooms situated in the first floor of Nath Medical Stores are still vacant and vacant land is also available to the respondent for his business. The present suit accommodation comprises of 9 x 24 sq. ft. and that is a very small shop not sufficient to satisfy the bona fide need of the respondent. The respondent has many times caused damages to the rented accommodation on which the appellant has filed civil suit and in separate civil suit the present appellant has also filed counter claim for permanent injunction against the respondent.

5. On the basis of averments of the parties, Court below has framed issues, afforded opportunity of adducing evidence, decreed the suit and dismissed the counter claim.

6. I have heard learned counsel for the parties, perused the impugned judgment and record of the Court below.

7. Learned counsel for the appellant argued that the present respondent is having alternate accommodation and vacant land for his business, rented accommodation is very small and will not satisfy the need of the respondent. The present respondent is running his business in his own residence and the accommodation is not required for bona fide need of the respondent for carrying business. With a view to harass the appellant and compel him to vacate the accommodation, the respondent has caused damage to the suit accommodation. The appellant has substantially deposited rent although not regularly. The present respondent is not entitled for eviction on the ground of bona fide need or arrears of rent. Learned counsel placed reliance in the matter of Natthulal v. Kishorilal1 in which it has been held by this Court that in case of alteration made by the defendant and refusal of rent sent through money order, the plaintiff is not entitled for eviction. The appellant has filed copies of receipts showing deposit of rent.

8. On the other hand, learned counsel for the respondent argued that the plaintiff is the person to decide for his choice, comfort and bona fide need. The plaintiff is not having any alternate sufficient vacant accommodation in Durg city for his business and the accommodation is required for his own business. The appellant has not deposited rent since 1999. The respondent issued notice of demand of rent, but the appellant has not complied the notice and has failed to deposit rent. The present respondent/plaintiff has not caused any damages to the suit accommodation with a view to compel the appellant for vacating the house. Learned counsel placed reliance in the matter of Raja Muthukone (Dead) by LRs v. T. Gopalasami and another2 in which the Apex Court has held that in case of default in payment of rent by the tenant, tenant can be construed to be willful defaulter. Learned counsel further placed reliance in the matter of Sayeda Akhtar v. Abdul Ahad3 in which it has been held by the Apex Court condonation of delay in payment of rent by the defaulter is mandatory and such application if suffers from delay or laches is not entertainable. Learned counsel also placed reliance in the matter of R.C. Tamrakar and another v. Nidi Lekha4 in which it has been held by the Apex Court that in case of bona fide need landlord himself is the best judge of what his requirements are; neither tenant nor court may endeavour to show the landlord how he should adjust himself. Learned counsel further placed reliance in the matter of Kempaiah v. Lingaiah and others5 in which the Apex Court has held that in case of bona fide requirement of the suit house, requirement must be more than a mere wish or impulse or desire on the part of landlord, element of need may be present both in "require" and "desire", but distinction lies in the intensity of the need and the landlord is required to establish his bona fide requirement not only wish or desire. Learned counsel further placed reliance in the matter of Ouseph Mathai and others v. M. Abdul Khadir6 in which it has been held by the Apex Court that the Rent Control Act is a social welfare legislation and purpose of rent control legislation is to protect the interests of bona fide tenants in possession, but it does not confer unfettered powers on tenant to retain possession, regardless of non-compliance with orders of court or provisions of statute. Learned counsel also placed reliance in the matter of Parmeshwar Prasad Daruka v. Parmeshwari Devi7 in which the Apex Court has held that on the ground of default of payment or arrears of rent, the Court is required to pass decree of eviction.

9. Counsel for the appellant has filed copies of receipts of rent, especially receipts dated 25-5-2004 & 22-6-2004 which show payment of Rs.51,850/- & Rs.3,800/-, respectively. It is clear from the copies of these two receipts that the present appellant has preferred this appeal, but has not paid rent within limitation and has not complied the mandatory provisions of Section 13 (1) of the Act. The appellant has not filed any application for condonation of such default.

10. Both the parties have led evidence. The respondent has deposed in his evidence that after filing of suit he has stopped paying rent. He has admitted the previous dispute, but in his deposition he has not stated anything to prove that he is in possession of suitable alternate vacant accommodation for his business, inter alia, respondent Chandradeep Tamrakar & his father Laxminath Tamrakar have specifically deposed in their evidence that they want to start business of readymade, but Chandradeep is not having any suitable alternate vacant accommodation. The present respondent is landlord of tenanted house and he is entitled for eviction on the ground of bona fide need of accommodation. Admittedly, the accommodation was given on rent for non-residential purpose i.e. for business and the present respondent is in need of such accommodation for his own business i.e. for non-residential purpose. The respondent & his father have specifically deposed that the respondent is in need of carrying the business of readymade for which no alternate vacant accommodation is available.

11. Statements of the respondent & his father reveal that the need is not a mere desire or wish but more than a mere wish or desire. As has been held by the Apex Court in the matter of R.C. Tamrakar (supra), landlord himself is the best judge of what his requirements are; neither tenant nor court may endeavour to show the landlord how he should adjust himself.

12. Evidence adduced on behalf of the respondent is not contradicted substantially by the appellant, which is sufficient for drawing inference that the respondent needs the accommodation for his own business bona fidely and he is not having any suitable alternate vacant accommodation. The present appellant has not deposited rent regularly and even he has not filed any application for condonation of the default made by him. Statement of the appellant and the fashion in which he has deposited rent shows that the appellant is not bona fide in paying rent and he has not made any endeavour to pay rent regularly in accordance with the provisions of Section 13 (1) of the Act.

13. After considering the case of the parties and oral & documentary evidence adduced on behalf of the parties, learned Additional District Judge has arrived at a finding that the present respondent has proved his bona fide need for eviction, and has decreed the suit. Learned Additional District Judge has not committed any illegality or irregularity in decreeing the suit. Judgment & decree for eviction of the land is sustainable.

14. Consequently, the appeal is liable to be dismissed and it is hereby dismissed. The appellant shall pay rent and damages as directed by this Court vide order dated 4-6-2004. The appellant shall bear the cost of his suit & appeal as also of the respondent. Advocate fees as per schedule.

15. Decree be drawn up accordingly.

J U D G E