Saturday, 11 August 2018

Whether burden of proof is on tenant to prove that non user of tenanted premises was due to reasonable cause?

Recently, again, the same view has been reiterated by this Court in Smt. Aleamma v. Seth Meghraj MANU/MP/0041/1993 : 1993 (1) MPJR 378. Therefore, the absence of pleading "without reasonable cause" by the plaintiff for seeking eviction under Section 12(1)(d) of the Act, is misconceived as the law is settled that a landlord seeking eviction under Clause (d) of Section 12(1) of the Act, has only to satisfy the Court that he has pleaded and proved the non-user of the accommodation for a continuous period of six months immediately preceding the date of filing of the suit. If the plaintiff establishes his claim, the onus shifts to the tenant to establish that his default which rendered him liable to eviction was condonable by the Court because of a "reasonable cause".

9. This Court, in an unreported decision in the case of Kashibai v. Shardabai 1987 MPRCJ (N) 74 has also considered the effect of the absence of the pleading of "without reasonable cause" by the landlord and has observed that if the plaintiff pleads and proves the non-user of the accommodation for the purpose for which it was let out for a period of six months preceding the filing of the suit, absence of the pleading "without reasonable cause" will not non-suit the plaintiff.

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Second Appeal No. 94 of 1986

Decided On: 26.08.1993

Godharam Vs. Vasudev Prasad Sharma

Hon'ble Judges/Coram:
S.K. Dubey, J.

Citation: AIR 1994 MP 20

1. This is tenant's second appeal under Section 100 of the Civil P. C., against the judgment and decree of eviction of non-residential accommodation, passed under Section 12(1)(d) of the M.P. Accommodation Control Act, 1961, for short, the 'Act', in Civil Suit No. 122-A/80 by Second Civil Judge, Class II, Morena, affirmed in Civil Appeal No. 57-A/85, vide judgment and decree dated 26-4-1986, passed by Additional District Judge, Sheopur-Kalan, Gamp Morena.

2. This Court, on 31st October, 1986, admitted the appeal on substantial question of law for interpretation of Section 12(1)(d) of the Act and on the question that the ground having not been pleaded and proved, the decree so passed is illegal.

3. Material facts giving rise to this appeal are these. It is not in dispute that the defendant/appellant is a tenant of the non-residential accommodation of the suit accommodation on a monthly rent of Rs. 70/- vide rent Note dated 1st March, 1969 (Ex.P/1) and was carrying on business of hotel in the name and style of "Pawan Restaurant". The landlord served a notice dated 4-5-1977 (Ex.P/3) of eviction on the ground of bona fide requirement and non-payment of arrears of rent, acknowledged by the tenant on 9-5-1977 vide Ex.P/4. Thereafter, the landlord/plaintiff instituted a suit for eviction on 25-7-1979 not only on the clauses of Sections 12(1)(a) and (f), but also under Clause (d) of Section 12(1), pleading in para 5 of the plaint, that the defendant/tenant has closed his business of Hotel (Pawan Restaurant) since last 1 1/2 years and the accommodation so let is lying closed, hence, the plaintiff is entitled to file a suit for eviction under Section 12(1)(d) of the Act. The defendant, in the written statement, denied all the averments of the plaint. In reply to para 5, without specifically denying the case pleaded under Clause (d), denied the averment without taking a stand that the accommodation so let, was not used owing to the "reasonable cause". On the pleadings under Clause (d), the trial Court raised, issue No. 4 in the following terms :

"Whether the defendant has closed his business in the suit shop and the shop is lying closed since 1 1/2 years".
4. After appreciation of evidence adduced by the parties, the trial Court negative the claim of plaintiff/landlord under Clauses (a) and (f) of Section 12(1), but, decreed the suit for eviction under Section 12(1)(d) of the Act. Aggrieved of that, the appellant preferred an appeal which, on reappraisal of evidence, was dismissed by the first appellate Court. Hence, this second appeal.

5. Shri K. K. Lahoti, learned counsel for the appellant first contended that the two Courts below erred in not dismissing the claim of the landlord under Section 12(1)(d) also, as the pleading was not strictly as per requirements of Section 12(1)(d), nor by evidence adduced, the case was proved. Counsel pressed into service decisions of the Supreme Court in the cases of Hasmit Rai v. Raghunath Prasad MANU/SC/0604/1981 : AIR 1981 SC 1711; Babu Ram Gopal v. Mathra Dass MANU/SC/0162/1990. He also relied on a recent decision of this Court in Bhagwandas Pawaiya v. Registered Firm Kailash Narayan and Bros. AIR 1991 MP 191.

6. Section 12 starts with a non obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of Section 12. It is thus an enabling section. In order to avail of the benefit conferred by Section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. In the instant case, the claim of the landlord for eviction on the ground of Section 12(1)(a) and (f) having been negatived by the Courts below, this Court has only to examine whether the claim under Clause (d) of Section 12(1) has been pleaded and proved or not. Therefore, it will be appropriate to quote the relevant Clause (d) of Section 12(1)in extenso:

"12. Restrictions on eviction of tenants.-

(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:

*****
(d) That the accommodation has not been used without reasonable cause for which it was let, for a continuous period of six months immediately preceding the date of the filing of the suit for the recovery of possession thereof."

*****

7. A bare reading of the clause shows that it gives right of eviction to a landlord if the tenant does not use the accommodation so let to a tenant, without reasonable cause, for a continuous period of six months immediately preceding the date of filing of the suit for recovery of possession. Therefore, to seek eviction under this clause a landlord has to specifically plead and prove that the need of tenant has ceased to exist for a continuous period of six months immediately preceding the date of filing of suit. On the other hand, the tenant against whom a case has been made out under this clause has to plead and prove that his default which rendered him liable to eviction was condonable because of existence of a "reasonable cause" and, in that case, the landlord would not be entitled to decree of eviction. That is what this Court has held in Bhagwandas Pawaiya (AIR 1991 MP 191) (supra). It would be relevant to extract paras 11 and 12 from the Report:

"11. The Rule of Strict pleadings, I have already held in Lalta Prasad (1986 MPRCJ 248 : MANU/MP/0351/1986 : 1986 JLJ 713), is the Rule which must govern actions instituted to endorse statutory rights under Special Statutes; the landlord is bound to plead and prove his entitlement within four corners of the statutory provision invoked to enforce right pleaded. In any case, the scope of the entitlement contemplated under Clause (d) also bears critical analysis. To entitle him to decree for eviction of the tenant under Clause (d) the landlord has to plead and prove that the accommodation had not been "used" for the purpose for Which it was let out and that the non user was continuous for a period of six months immediately preceding the date of institution of the suit. When he has duly established that requirement, contemplated under Clause (d), onus will shift to the tenant to establish that his default which rendered him liable to eviction was condonable by the Court because that had a "reasonable cause". The word "used" which occurs in Clause (d) is relatable evidently to the purpose as is indicated by the expression "for which it was let" directly following it, save for interposition of the expression "reasonable cause". Although in Clause (d) the word "purpose" does not figure, the intention of the legislature was to the disqualification with reference to "residential" and "non-residential" purposes because those two expressions are used in Clause (e) and (f) which immediately follow Clause (d). The importance of user with reference to "purpose" is also indicated by the proviso to Clause (c); whether let out for residential or non-residential purpose, partial use of the accommodation for "Office" is made permissible thereunder. The necessity of interpreting Clause (d) in its context and setting is obvious and for that reason, the interrelation of Clauses (c), (d), (e) and (f) cannot be overlooked. Under all those four clauses, under different circumstances, tenant's eviction is contemplated on fulfilment of the requirements separately and specifically prescribed respectively under those clauses. Circumstances pertaining to user of a premises may indeed be various; no particular or single test can be conclusive of the disqualification.

12. The object of Clause (d), in particular, evidently deserves primacy in consideration, because that is directly traceable to the purpose and object of the Act itself. Like other Rent Control Acts, the M.P. Act also is a measure interdicting on the one hand the evil of rent racking and on the other hand, aiming at fair distribution of available accommodation to meet housing shortage. If that object is kept in view, landlord's entitlement claimed under Clause (d) has to be so construed that he does not make unjust gain by replacing a poor tenant by a rich tenant. The provision should not be allowed to be used as tool to exploit a poor tenant who could not, for "reasonable cause" use the accommodation for the specified period. True, when it is proved that any accommodation let out, whether for residential or non-residential purpose, is kept vacant during the specified period, the claim of the landlord may be deemed ipso facto established treating the tenant to be not in "need" of the accommodation unless "reasonable cause" for keeping it vacant is established by him. It would be imperative for the landlord to establish that the accommodation has not been "used" during the specified period till the date of institution of the suit for the purpose for which it was let out by pleading and establishing specific facts indicative of "need" of the tenant ceasing to exist. The object of the requirement is to make available the unused accommodation for allotment or for being let to other deserving tenant."

8. Recently, again, the same view has been reiterated by this Court in Smt. Aleamma v. Seth Meghraj MANU/MP/0041/1993 : 1993 (1) MPJR 378. Therefore, the absence of pleading "without reasonable cause" by the plaintiff for seeking eviction under Section 12(1)(d) of the Act, is misconceived as the law is settled that a landlord seeking eviction under Clause (d) of Section 12(1) of the Act, has only to satisfy the Court that he has pleaded and proved the non-user of the accommodation for a continuous period of six months immediately preceding the date of filing of the suit. If the plaintiff establishes his claim, the onus shifts to the tenant to establish that his default which rendered him liable to eviction was condonable by the Court because of a "reasonable cause".

9. This Court, in an unreported decision in the case of Kashibai v. Shardabai 1987 MPRCJ (N) 74 has also considered the effect of the absence of the pleading of "without reasonable cause" by the landlord and has observed that if the plaintiff pleads and proves the non-user of the accommodation for the purpose for which it was let out for a period of six months preceding the filing of the suit, absence of the pleading "without reasonable cause" will not non-suit the plaintiff.

10. Recently, the Supreme Court in the case of Shiv Lal v. Sat Prakash MANU/SC/0055/1993 : AIR 1993 SC 275, while considering the similar provision under Section 12(2)(v) of the East Punjab Urban Rent Restriction Act, has held that a tenant will be liable to eviction if he ceases to occupy the building for a continuous period of four months without reasonable cause. The Section does not require the cessation of the tenancy in question. The only condition which has to be satisfied is the "non-user of the building for the requisite period". The principle underlying the provision is that if a premises is not required by the tenant, it should become available to another person who may be in need thereof.

11. In the instant case, the appellant/ tenant did not take a defence in the pleading that the accommodation so let remained unused because of the "reasonable cause", but his case is that his business never remained closed nor there was any non-user till the date of the institution of the suit. The tenant led evidence to prove that the accommodation was continuously in use. As after the close of hotel business, which was being looked after by his son Ramdayal, D.W. 4, bicycle shop was opened. To prove that the tenant did not produce any account-books, sales tax returns, Shops and Establishment registration or other convincing evidence that after close of hotel business, shop of bicycle was started which was continuing. On the other hand, it came in the evidence that the defendant's son, after the close of the hotel business, started fuel wood Tal at his residence. Therefore, in the opinion of this Court, the two Courts rightly recorded the finding that the accommodation so let was lying unused for a period of six months immediately preceding the date of institution of the suit.

12. During the course of evidence, the tenant also took a stand that in the period of emergency, a tin shed which was part of the accommodation was constructed by his predecessor tenant, was demolished, therefore, he could not carry on the business. But, no evidence was led to satisfy the Court that because of the demolition of tin shed and the later construction of a water-hut, the business of hotel could not be carried on. Both the courts disbelieved this evidence as it was having no foundation in the pleadings and have found that after the institution of the suit, the tenant started using the accommodation by opening the cycle shop, which can hardly be a ground of defence as Section 12(1)(d) does not envisage such a plea.

13. As the two courts have arrived at a concurrent finding of fact of non-user for a continuous period of six months immediately preceding filing of the suit, in the opinion of this Court, such finding cannot be justifiably assailed in second appeal as reappraisal of the evidence to record a different conclusion is not permissible. See, Dudh Nath v. Suresh Chandra MANU/SC/0382/1986 : AIR 1986 SC 1509 and a short-noted decision of this Court in Sardar Gurumukh Singh v. Kishanlal 1987 MPWN 4.

14. In the result, the appeal has no merit and it is dismissed with no order as to costs. The stay order passed by this Court on 24-6-1986 is hereby vacated.




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