PUSKAR SHARMA Vs. SUDHA MISHRA

JUDGEMENT

(1.) The appellant being aggrieved by the judgment and decree dated 9-2-1994 passed in regular Civil Appeal No.1-A/92 by the learned II Addl. Judge to the Court of Distt. Judge, Bilaspur, reversing the judgment and decree dated 21-10-1991 passed in Civil Suit No. 22-A/91 by the learned VI Civil Judge, Class II, has preferred this appeal.

(2.) The brief fact leading to the appeal are that the respondent/landlord having succeeded to the property in a will executed by Siyavarsharan filed a suit for eviction of the appellant/tenant Ramsewak alleging that the tenant has not paid the rent despite demand, has changed the user of the premises, the premises are needed bona fide by the landlord the premises need repairs and the tenant has acquired vacant possession of the accommodation suitable for his residence. The original tenant Ramsewak contested the suit on all possible grounds and contended that he was not liable to be evicted. It was submitted that the user of the suit premises has not been changed. The premises did not need repairs and the tenant has not acquired an accommodation suitable for his residence. The learned trial Court, after hearing the parties, came to the conclusion that the plaintiff could not make out a case for eviction, it dismissed the suit. Being aggrieved by the said dismissal the plaintiff preferred a regular appeal. Learned First Appellate Court held that the plaintiff was successful in proving the change of the user, the bona fide requirement and acquisition of the house by the tenant, though in para 18 of the judgment it held positively that the tenant is using the house as a godown were when it was given to them for residential purposes. In para 23 of the judgment it held that the tenant is liable to be evicted on the grounds enumerated under Ss. 12(1)(e) and 12(1)(i) of the M.P. Accommodation Control Act (hereinafter referred to as the Act). This second appeal has been admitted on 21-3-1995 on the following substantial question of law:- "Whether the Lower Appellate Court is just and proper in reversing the judgment and decree of the trial Court where as the findings are that the suit is barred under S.12(4) of the M.P. Accommodation Control Act?"

(3.) A bare reading of the question would show that the, Court was of the opinion that the findings regarding S.12(4) of the Act were bad and a decree on the ground could not be passed. From the appeal memo it does not appear that the decree granted on the ground of Ss.12(1)(d) and 12(1)(i) of the Act was ever sought to be challenged. Facing with the difficulty Shri Trivedi submitted that the appellant was misled by the observations made in para 23 and thought that decree under S.12(1)(d) was not passed. Assuming that to be correct para 23 is clear about the availability of the ground under S.12(1)(i). Shri Trivedi thereafter submitted that the findings of the First Appellate Court regarding the availability of the ground under S.12(1)(i) are perverse and he be permitted to challenge those findings irrespective of the question. He also submitted that findings regarding Section 12(1)(d) are also perverse. Shri Shrivastava submitted that in absence of a question raised in the appeal memo or the question framed at the time of admission of the appeal, such questions cannot be permitted. Section 100(4) gives a wide discretion to the Court to hear the appeal on such further questions which arises in the matter in the opinion of the Court I permitted Shri Trivedi to argue the matter on these 2 grounds also.