LexCHANDER KALI BAI & ORS. versus JAGDISH SINGH THAKUR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
- .. CHANDER KALI BAI & ORS. v. JAGDISH SINGH THAKUR October 6, 1977 [N. L. UNTWALIA AND JASWANT SINGH, JJ.] 625 Madhya Pradesh Accommodation Control A ct 1961. ss. 2 (I), 12 (I) (f), 13(1)-A decree for damages can be awarded not from the date of termination of the contractual tenancy but only from the date when an evicrion decree is passed. iVew plea-A plea of defence not taken at trial stage cannot be pennittf·d to be takell at appellate stage. JVords and phrases, "his business" and "of his own in his occupation" occurring in s. 12(1)(/) of tl1e Madhya Pradesh Accornmodation Control Act, 1961, meaning of. A B c A shop where Bhojnala)'a. wci.s being run by the appellants-tenants was demised to their predecessors-in-interest for the said purpose by the father of plaintiff-respondent No. 1 in the year 1951 on a monthly rent of Rs. 50/-. · The father of the plaintiff-respondent No. 1 was running a sweetmeat shop in a rented premises, the rent of which was Rs. 225 /- per mensem. The plaintiff's D father died in 1970. Some time later the original tenant also died. He had paid_ rent up to September, 1972. The plaintiff served a notice on the defen- dants terminating the contractual tenancy with effect from 31-12-1972 and filed a suit on 8-3-1973 for eviction on the ground of bona fide necessity of the plaintiff, for arrears of rent amounting to Rs. 150/- for October, November and December 1972 and damages for the months of January and February 1973 at Rs. 225/- per mensem as also future damages till the delivery of the possession. The trial court dismissed the suit holding that the plaintiff did not require the sweet-shop bona fide for his personal necessity. On appeal by the plaintiff, E the first appellate court by its judgment dated 11-8-75, taking a contrary view, decreed the suit for eviction, arrears of rent and also for past and future damages at Rs. 125/- per month to be payable on and from 1-1-1973 until delivery of the vacant possession to the plaintiff. The High Court in second appeal affirmed the decree. Allowing the appeal by special leave in part, the Court, HELD : ( 1) Where a claim has never been made in the defence presented, F no amount of evidence can be looked into upon a plea which was never put foiward. Il it could be so even at the trial stage, undoubtedly such a new question of fact could not be entertained at an appellate stage . In this case, neither any issue w~ struck nor was any evidence adduced by the parties on the question. The case proceeded to trial on the admitted foot- ing that the business which the plaintiff wanted to shift to the suit shop was his business. In such a siutation it was not open to the appellants to take a stand at a very late stage of the litigation that the sweetmeat shop was the G business ·of the joint family of the plaintiff and, therefore; not the plaintiff's busineRs to come wi:hin the meaning of clause ( f) of sub-s 1 of s. 12 of the Madhya Pradesh Accommodation Control Act, 1961. [627H, 628A-D] Siddik Malwmed Shah v. Mt. Saran and Ors. 1930 PC 57(1); Bhagat Singh & Ors. v. Jaswant Singh A.I.R. 1966 SC 1861 and Bachan Singh v. Dhian Dass & Ors. AIR 1974 SC 708, applied. (2) A tenanted shop in mere occupation of the landlord filing a suit for evic- H tion against his tenant was sufficient to deny him a decree on the ground of clause (h) of s. 4 of the Madhya Pradesh Accommodation Control Act 1955 where the expression used was that the landlord "is not in occupaiion of any other accommodation in the city or town for that purpose". But, under the A B c D E F G H 626 SUPREME COURT REPORTS [1978] 1 s.c.R. 1961 Act, mere occupation of another premises is not sufficient in view of the clear departure made by using the phraseology in the second part of cl. (f) of s. 12(1), "the landlord has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned". The premises must be his own meaning thereby that they must be owned by or belong to the landlord and he must be in occupation of the same. In the instant case, the tenanted shop in occupation of the plaintiff was not sufficient to deny him a decree for eviction against his tenant u/s. 12(1) (f) of the Act. [628E-F] (3) As per the widened definition of "tenant" ins. 2(1) of the Madhya Pradesh Accommodation Control Act, 1961, a tenant even after the termination of h
Excerpt shown. Read the full judgment & AI analysis in Lexace.