1. This second appeal by defendant/ tenant under Section 100 of the Code of Civil Procedure 1908, (for short "The Code") is directed against the judgment and decree dated 15/09/2010 passed by the Additional District Judge, Jaora, Dist. Ratlam in Civil appeal No.2-A/2010, whereby the judgment and decree dated 24/07/2009 passed by the Civil Judge Class-I, Jaora in Civil Suit No.17-A/2009 with regard to eviction under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter for short ''The Act'') has been affirmed. 2. It is pertinent to state that original plaintiff - Mohammad Umrao died during the pendency of the suit. He was substituted by his son Mohd. Shabbir Hussain, who also died during the pendency of the first appeal and was substituted by respondents No.1-8. It is further not disputed that the suit premises being two rooms and a shed comprising of house No.7, Rangrej Gali, Jaora, District Ratlam was initially let out by Mohd. Umrao to appellant Rameshchandra at a rent of Rs.60 per month. Later on, one room was further included in the tenancy and rent was enhanced to Rs.90/- per month, payable on 1st of every English calendar month. 3. The prayer for eviction was made by original plaintiff Mohd. Umrao on the ground contemplated under Section 12(1)(f) of ''The Act'' that tenanted premises, which are in a old and dilapidated condition are bonafidely required by plaintiff and his son Shabbir Hussain for starting business of tent house for which they do not have any other reasonably suitable accommodation in their occupation in Jaora town. As the plaintiff''s son Shabbir Hussain was detained in the jail in some case under the NDPS Act, therefore, by way of amendment it was also averred that he was released from jail on 22.06.2006 and, therefore, he is in a position to carry out the business of tent house in the tenanted premises. 4. The pleadings made by the plaintiff were traversed by appellant/defendant averring that the plaintiff Mohd. Umrao is quite aged and weak person, therefore, he cannot run any business. It was also submitted that plaintiff''s son Shabbir Hussain is detained in jail under the NDPS Act, therefore, he too may not have any bonafide need to start the business. Accordingly, the plaintiff does not have bonafide need of the tenanted premises and that he is creating nuisance in the user of tenanted premises by the appellant/defendant. It was also averred that the plaintiff is engaged in the business of dying clothes, which can well be carried out from the foot path from where it is being presently carried. 5. The learned trial Court came to the conclusion that the disputed premises are bonafidely required by the respondent/plaintiff for the business of tent house to be carried out by his son and that no other suitable alternate accommodation is available with them in the city. The pleading that the house is in dilapidated condition and has been rendered unfit for human habitation was answered in negative. On the basis of the aforesaid findings, the suit was decreed for relief of eviction. The order passed by the learned trial Court was unsuccessfully challenged by the appellant/defendant before the learned appellate Court, however, the learned appellate Court, vide the impugned judgment, dismissed the appeal affirming the judgment and decree passed by the learned trial Court. 6. This appeal was admitted for hearing on following substantial questions of law:
1. Whether the learned lower Court has committed an error in passing the impugned eviction decree contrary to the pleadings and evidence and, therefore, it is perverse?
2. Whether the learned lower Court has committed an error in passing eviction decree against the appellant under Section 12(1)(f) of the Act without proper pleadings after the death of plaintiff and his son?"
Substantial question No.2:7. The learned counsel for the appellant/defendant has submitted that considering the fact that the original plaintiff expired during the pendency of the civil suit and thereafter, his son Shabbir Hussain also expired during the pendency of the first appeal, the bonafide need as advanced by the respondents/plaintiffs for starting business of tent house did not survive, therefore, the learned appellate Court has committed a serious error in affirming the judgment and decree passed by the learned trial Court in this regard. The contention is that the appeal was remanded by the learned appellate Court vide order dated 14/08/2002 with a direction that the L.Rs of respondent/plaintiff are free to amend the plaint but still the plaint was not amended as regards the alleged bonafide need of the respondents/plaintiffs, therefore, the suit ought not be have been decreed under Section 12(1)(f) of '' The Act ''. 8. In oppugation, it is submitted by the learned counsel for the respondents/plaintiffs that once the decree is passed under Section 12(1)(f) of '' The Act '', in favour of the landlord on the ground of bonafide need, the same could not be set aside merely because of death of the original landlord. The contention is that rights of the landlord are heritable and devolve on his death to his legal heirs and if a suit is filed on the ground which may be available to the legal heirs after the death of the original landlord, the legal representatives will be entitled to continue with the need and the decree could not be set aside merely on the ground of death of the landlord. Reliance in this connection is placed on the decision of this Court in Rajendra Kumar Jain vs. Laxmibai, 2006(4) MPLJ 115, wherein referring to the decision of apex Court in Shakuntalabai & Ors.vs. Narayan Das & Ors., AIR 2004 SC 3484, it was held as under in para 10 of the judgment:
" In view of the settled law by the Apex Court even after the death of landlord a decree in second appeal cannot be set aside, merely because of the death of landlord. The law permits the eviction of tenant for the requirement of landlord for the purpose of continuing or starting a business for his own or that of his major sons or unmarried daughters. The landlord who intended to start his business in the suit accommodation and could not get the accommodation during his life time, the aforesaid business may be continued by the wife. The decree which was passed in favour of the landlord does not cease to be ineffective because of the death of plaintiff/landlord. After the death of landlord a senior member of his family takes his place and is entitled to the suit accommodation for the business which was intended by the landlord who in spite of two decrees of the Courts below in his favour could not get the accommodation during his life time. The family members of the landlord cannot be deprived with the decree in favour of the deceased landlord. Apex Court in Shakuntala Bai (supra) has considered the law at length and the controversy has been set at rest."9. The aforesaid legal position makes it vividly clear that a decree granted in favour of landlord cannot be set at naught merely because of death of landlord during the pendency of the appeal. In the instance case, during the pendency of 1st appeal Shafi Mohammed, son of Mohd. Shabbir Hussain, along with other legal representatives was brought on record. It is not the case of the appellant/defendant that Shafi Mohammad is in any manner incapable of carrying out the business of tent house and, therefore, the bonafide need does not survive. In such situation and in view of the law laid down by the apex Court so also by this Court, it cannot be said that the bonafide need come to an end during the pendency of the appeal because of the death of Shabbir Hussain. Indeed, in the wake of the legal position no further pleadings were required to demonstrate that Shafi Mohammad also requires the disputed premises for carrying out the business of tent house. Therefore, it cannot be said that the 1st appellate Court committed any error in passing eviction decree against the appellant under Section 12(1)(f) of '' The Act ''. Substantial question No.2 is answered accordingly. Substantial question No.1: 10. This question is of quite general nature. The learned counsel of the appellant/defendant has not been able to point out that the impugned judgment or for that matter the judgment passed by the learned trial Court suffers from any perversity. The tenanted premises were bonafidely required by respondent/plaintiffs for commercial activity. The bonafide need was proved by way of evidence. It was further established that respondent/plaintiff was not having any alternate accommodation in Jaora to start the business under contemplation. The requirements contemplated by law for eviction under Section 12(1)(f) of '' The Act '' are found to be fully satisfied, in the instance case, therefore, it cannot be said that learned Courts below have committed any illegality in granting decree for eviction in favour of the respondents/plaintiffs under Section 12(1)(f) of '' The Act ''. Accordingly, it is held that the impugned judgment does not suffer from any perversity. Substantial question No.1 is decided accordingly. 11. Learned counsel for the appellant/defendant has specifically invited the attention of this Court to para-4 of the plaint and statement of Mohd. Shafi P.W.1 (para-4), Mohd. Umrao P.W.2 (para 4 & 5) & Talib Hussain P.W.3 (para-2). It is submitted that the averments have been made and evidence has been led by the plaintiff that the tenanted premises are old and in a dilapidated condition and may tumble down any time and that a certificate has also been issued in this regard by the Municipal Council, Jaora. The submission is that these averments do indicate that eviction of the tenanted premises was sought under Section 12(1)(g) & 12(1)(h) of '' The Act '', however, eviction under Section 12(1)(g) and 12(1)(h) of '' The Act '' invites restrictions contemplated under Section 18 of '' The Act '', therefore, the plaintiff in a round about manner has claimed eviction under Section 12(1)(f) of '' The Act '', however, no decree in the instant case under Section 12(1)(f) of '' The Act '' could have been granted unless decree under Section 12(1)(g) & 12(1) (h) of '' The Act '' was prayed for and granted. It is submitted that the learned trial Court has not considered this aspect in proper perspective, therefore, the impugned judgment cannot be sustained. 12. Per contra, it is submitted by the learned counsel for the respondent that reference in the plaint with regard to condition of the premises is not with the purpose that the same are required bonafide for reconstruction or repairs, rather the sum and substance of the pleadings is that the plaintiff requires the tenanted premises for commercial purpose. It is submitted that pleadings are to be looked into in their entirety and not in isolation, therefore, it cannot be said that the learned appellate Court has committed an error in granting decree for eviction. It is further submitted that there is no provision in '' The Act '' that in case of a dilapidated house no decree under Section 12(1)(f) of '' The Act '' shall be granted unless the decree under Section 12(1)(g) and 12(1) (h) of '' The Act '' has been prayed. 13. On perusal of the record, it is found that though a reference is made in the plaint with regard to the dilapidated condition of the tenanted premises, however, the prayer for eviction has been made on the ground of bonafide need to start business, meaning thereby, the ground contemplated under Section 12(1)(f) of '' The Act ''. The reference with regard to condition of the premises is not with the further pleading that the premises are bonafidely required for reconstruction or repairs, therefore, what can be gathered from the pleadings is that there is a ground with regard to bonafide need for business, hence, the contra plea raised by the learned counsel for the appellant cannot be accepted. 14. In view of the aforesaid, this appeal having no force, deserves to be and is accordingly, hereby dismissed with costs. Certified copy as per rules.
