A.R. Tiwari, J.
1. This first appeal presented under section 96 of the code of civil procedure (for short the ecode') is directed against the judgment and decree dated 23-12-1988 rendered by Vlth Addl. Judge to the Court of the District Judge. Indore in COS No. 89-A/86 thereby passing the decree of eviction under section 12(1)(e) of the m. p. accommodation control act. 1961 (for short the 'act') together with mesne profits @Rs. 115/- per months.
2. Briefly stated, the facts of the case are that the suit-house No. 30, Bada Sarafa, Indore originally belonged to the Joint Family of deceased Tejpal and deceased Guljarilal. On partition by a registered partition deed dated 25-2-1953, this suit house fell to the share of Guljarilal. The respondents are the sons of late Guljarilal and the appellant is the son of Tejpal. The respondents came with a case that the appellant occupied the first-floor and one room on the ground-floor as the licensee of the respondents. This licence was terminated by notices dated 9-4-1978 and 20-6-1978. The possession was demanded. The bona fide requirement was also asserted. The appellant disputed the allegation. It was pleaded that the appellant occupied the suit-premises in the capacity of a tenant and not as a licensee right from the time of partition. It was also pleaded that there was no bona fide requirement. The issue No. 1 as regards the licence, was not pressed by the respondents and was given up. The case was contested only on the ground of tenancy and ground of eviction under the Act. On evaluation of evidence, the trial Court found that the accommodation was required bona fide for occupation as residence and that there was no resonably suitable residential accommodation of their own in the city concerned. On this conclusion, the trial Court granted a decree of eviction under section 12(1)(e) of the Act. It was also directed that the mesne profits @ Rs. 115/- P.M. shall be paid from the date of judgment till delivery of possession.
3. Aggrieved by this judgment and decree, the appellant has preferred this appeal.
4. I have heard Shri Chaphekar, learned senior counsel with Shri S. L. Jain for the appellant and Shri H.S. Oberai, learned counsel for the respondent.
5. I.A. No. 4191/93, an application seeking amendment in the writte-n-statement, under order 6, rule 17 of the code was also considered at the time of final arguments.
6. Shri Chaphekar vehemently attacked the decree on the following grounds -
(a) The Trial Court erred in law in granting the'decree under section 12(1)(e) of the Act. There was no insufficiency of the accommodation. The respondents possessed two rooms on the ground-floor, five rooms on the second floor and four rooms on the third floor, even after leaving one room like tower on the fourth floor of the suit-house. The size of the family was such that there were only six adult members and seven children. Accordingly 11 rooms cannot be said to be insufficient for 13 members of the family.
(b) In para 8(3) of the plaint, the pleadings are not according to law. The pleadings contained in para 8(3)(b) became irrelevant and the issue No. 4 for the same reason was deleted as a result of death of Muniyabai, the mother of the respondents. The pleading contained in para 8(3)(d) is not substantiated by evidence inasmuch as Sharad was not put in the witness-box and no medical evidence was produced in proof of the alleged ailment. As regards the contentions embodied in para 8(3)(c), it is clear that the allegations were vague and devoid of requisite particulars and as such, no claim was to be decreed on such obscure allegations.
(c) The statement of Dr. Gokuldas itself was enough to show that the respondents were possessed of sufficient accommodation and the ground raised in the plaint was meritorious.
(d) The application submitted by the appellant was material and the allegations contained therein have material impact on the need as set up.
7. On the aforesaid contentions, Shri Chaphekar submitted that the decree of the trial Court deserved to be subverted and the suit deserved to be dismissed.
8. On the other hand, Shri Oberai countered the contention and urged that the ground of need was fully made out and that the trial Court recorded the finding which was on the firm foundation-. He urged that the deficiency in the pleadings at this stage of the lis was of no consequence. The parties understood the controversy and led evidence and as such, no surprise was caused to the appellant. In fact none is asserted even in this appeal. He urged that no cause is to perish on hypertechnical view. As regards the application, Shri Oberai submitted that written objection has been placed on record and that such an application intended to delay the conclusion of the trial, deserved to be dismissed. On these grounds, Shri Oberai submitted that this appeal merited dismissal.
9. I proceed to examine the merits of the matter.
10. In para 8(3)(c), the averment is as under -
"That the family of the plaintiffs is growing and the accommodation presently in their control is very inadequate and they are in bona fide and genuine need of the premises in the control of the defendant."
Before entering into the finer aspect of the case, it is apt to mention right at the threshold that once upon a time the suit house was the Joint Family Property of Tejpal and Gulzarilal and on partition it fell to the share of Gulzarilal. the ancestor of the present respondents. It is inbred that the one acquiring the property on partition must get it for comfortable enjoyment of the same. The evidential part needs to be appreciated in the background of this salient feature of the case.
11. True it is that the pleadings are not strictly proper as they ought to be. In 1963 JLJ 90 Note. Puniabai v. Jagannath, it is pointed out as under--
"It is the duty of the plaintiff when there is alternative accommodation of his own in his possession to plead not only that it exists but also the facts showing it to be insufficient for the purpose of residence of the members of his family. Unless such facts are pleaded the defendant cannot be in a position to admit or deny them."
12. However, the aforesaid requirement need not be pressed in the present case strictly because both the sides are related to each other and surely are in the know of every thing concerning this matter. It is precisely for this reason that no element of surprise was suggested. The evidence recorded was p ressed to tear-up the tenebrosity. The position which emerges is as under--
(1) There are five rooms on the second floor inclusive of one room used as a kitchen. PW-1 deposed about the existence of three rooms on the third floor. The other side asserts that instead of three rooms, there are four rooms. Accepting the contention of the appellant, the position emerges is that there are nine rooms on the second and third floor. Two rooms are said to be on the ground-floor. It is thus, clear that the alternative accommodation consists of 11 rooms spread on three floors.
(2) As regards the size of the family, it is in the evidence that the respondents are three brothers. They are married. They have seven children. Shri Oberai submits that in fact the number of children is 8. Accepting this contention the size of the family is such that there are six adult members and eight children. The suit was instituted on 20-9-1978. About fifteen years have passed since then. Surely the children have grown up. The need is not a static thing and keeps on changing with the change of time.
13. I have carefully examined the statement of Muniyabai (since dead), PW-1 Vinod Agrawal and PW-2 Dr. Jayant Mehta. I have also carefully read the statements of DW-1 Kailashchandra, DW-2 Sobhagmal, DW-3 Ashok Kumar, DW-4 Dr. Gokuldas, DW-5 Dheerajlal and DW-6 Mahavir Ramdas Yadav.
14. True it is that Sharad Agrawal was not examined in this case, as regards his disability and ailment. However, PW-1 Vinod Agrawal was examined. He deposed about the ailment and operations of Sharad, his younger brother. The cross-examination was done on 6-12-1979. However these facts were not disputed and challenged in cross-examination. In 1989 MPLJ 690, K.K. Jain v. Smt. Masroor, the Division Bench of this Court has held as under--
"Needless to say that in the hands of the adversary is the weapon of cross-examination to test the truthfulness of the statement made by a witness in examination in-chief. If a witness, therefore, is not cross-examined on any material point deposed to by him in examination-in-chief the necessary inference is that the adversary does not mean to challenge that version given by the witness in examination-in-chief. In that event, the version so given by the witness in examination-in-chief must be accepted as truthful."
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15. In view of this position, the statement made by PW-1 Vinod Kumar deserves to be accepted. As such, non-examination of Sharad is not fatal in this case.
16. I have read the statement of PW-4 Dr. Gokuldas in extenso. He deposed about his promise to give one flat of first floor to Sharad Agrawal. In para 5 this witness, examined by the appellant, deposed that the notice of cancellation of this flat was given to Sharad Kumar. It is different matter that no documentary evidence was produced. However, this is the witness examined by the defendant-appellant. In this view of the matter, the statement of Dr. Gokuldas does not tilt the balance in favour of the appellant. The current realities have to be kept in mind. There are three respondents with their families. Nowadays, there is basic need of bed-rooms, drawing-rooms, study-rooms, guest-rooms, separate kitchens, dining rooms, stores, place of worship etc. Besides this natural requirement it is seen that the accommodation is not available only on one floor. The two rooms located on the ground floor are not proved to be fit for human habitation.
17. Section 12(1) of the Act enumerates the grounds on which, notwithstanding the statutory injunction, a landlord may obtain possession of the premises let out to the tenant. The ground asserted in this lis is one contained under section 12(1)(e) of the Act. As such, eviction is permissible on proof that the accommodation let for residential purpose is required bona fide by the landlords for occupation as a residence for themselves or for any member of their family, as defined under Section 2(e) of the Act, being the owners, and that such landlords or such persons have no other reasonably suitable residential accommodation of their own in their occupation in the place concerned.
18. It is trite law that mere assertion on the part of the landlords is not decisive. The truth of such an assertion has to be determined objectively. The word 'Require' signifies that mere desire is not enough and that there should be an element of need. The re-entry is thus, not unfettered. The protection available to tenant is not illusory and is not liable to be whittled down.
19. The linchpin of the claim is that the family of the landlords was growing in size making it extremely difficult to continue to squeeze in the insufficient accommodation in occupation. Apart from this paucity, and inadequacy, the respondent No. 2 (Sharad) was an ailing person suffering disability in movement right upto second floor. The size of the family, three brothers, their wives and eight children -- was quite large and cannot be accommodated in just five rooms on the second floor and four rooms on the third floor of the suit-house which are in their occupation. The space on the ground floor is not reasonably suitable.
20. In 1991 WN (I) 198, Pratapchand Jain v. Ashok Kumar, it is held that--
"It would wholly be illegal and unreasonable for a tenant to expect from the landlord or the members of his family to squeeze themselves and to live uncomfortably than to seek his eviction."
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21. On my scrutiny, agreeing with the finding of the trial Court, I sustain the decree of eviction passed on the ground specified under section 12(1)(e) of the Act. In the result, the ground is real and the finding is not against the weight of the evidence on record.
22. This is, however, not the end of the matter in the face of the application under order vi, rule 17 of the code. It has to be seen whether the allegations, as averred, satisfy the need as pleaded.
23. order vi, rule 17 of the code provides as under--
"17. Amendment of pleadings. --The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties."
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24. The leading case on the point of subsequent events is that of Lachmeshwar Prasad Shukul v. Keshwarlal Chaudhari, reported in AIR 1941 FC 5, wherein Gwayer, C. J. has referred to the rule, adopted by the Supreme Court of the United States in Patterson vs. State of Alabama, (1934) 294 US 600, as stated by Hughes, C. J. at page 607as under:--
"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered."
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25. It is thus, incontestable that cautious cognizance of events can, and in some cases, must, be taken to mould the right or remedy in accord with current realities. The subsequent events sought to be introduced here are that (1) Sharad (respondent No. 2) has sold plot No. 3. H.N. 96 Agrawal Nagar to Smt. Lata w/o Bhagchand and that (2) Sushil (respondent No. 3) has separated from the Joint Family and shifted to Kanchanbagh after receiving the sale-proceeds of a portion of the ground-floor. The respondents have disputed these allegations on affidavit and categorised the same as elvish designed to delay the conclusion of the case.
26. It is asserted that Sharad did not own such a plot imprimis and as such there was no question of its disposal as alleged. As regards Sushil, it is pointed out that the one portion, used as shop, which has no impact on the residential need, was required to be sold due to financial hardship and Sushil had to shift to tenanted premises in Kanchanbagh in the face of insufficiency of accommodation purely as an ad hoc arrangement. It is thus, urged that this further reinforced the factum of felt need rather than satisfying or destroying the fabric of the case.
27. In 1991 WN II 105(since reported in 1993 MPLJ 391), Mahrunnisa Begum v. Radheshyam, it is held that --
"It can also not be the ground for refusing the decree that since she (the plaintiff) has shifted to Bhilai, she will not be requiring the suit house."
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28. Keeping in view the caution exercisable in matter of such pleas, I conclude that the application although moved belatedly, after about three years, has no potential to perish the-need as set up and being belated, irrelevant and malafide. deserves to be disallowed. It is not found to be relevant to decide the controversy between the parties and necessitates no investigation in the light of the reply. This application is accordingly rejected.
29. article 51a of the constitution of india has provided that it shall be the duty of every citizen of India to adhere to certain norms as enumerated thereunder. One of such norms as mandated, is "to promote harmony and the spirit of common brotherhood." The facts of this case, however, tell a different tale; the partition of property took place in 1953. The suit was instituted only in 1978 i.e. 25 years thereafter. The trial Court took about ten years to pronounce the verdict. Happily enough this Court was able to decide the appeal only in four years. The rent is only 115/- P.M., in a place like Indore. This level is positively unfair and encourages the occupants to spin mendacious defences and to strive to defeat or at least delay justice. The other factor augmenting such a design is the state of strained relationship. This has yielded the tortious tussle between 'urgetentramment' (sic) and 'surge to evict'. This is how parties remained lugged into protracted litigation and refused to realise the duty to promote harmony and spirit of common brotherhood. The Court did indicate the desirability of amicable settlement in the face of the fact that parties are from common ancestor. I record my appreciation that counsel responded to this. It is different matter that their efforts proved to be acarpous. The appellant, however, perhaps obsessed by bruised sentiments, indicated only monosyllabic 'no' to such a step. Hence, the appeal had to be decided on merits. The mesne profits were allowed only from the date of judgment, a logic difficult to comprehend. In sustaining the ground of eviction or otherwise I would have considered reasonable upward revision of rent in terms of AIR 1987 SC 1602, Narain and Ors. v. Om Prakash, No one should be made to suffer on pettifoggery.
30. Procedure wrangle should not be seen in action for erosion of faith in the system. Pepole are tired of waiting. The dispensation of justice should be sure and swift. Justice should not be made to appear as a teasing illusion. Tardy pace in such cases, built on bona fide requirement, should be spurned and verdict, one way or the other, should be expeditious. This is why the Apex Court had indicated the need of quicker procedure in such cases. In AIR 1987 SC 2117, Prabhakaran Nair etc. v. State of Tamil Nadu and Ors., it was pointed out that:--
"Tier of appeals should be curtailed. Laws must be simple, rational and clear. Tenants are in all cases not the weaker Sections. There are those who are weak both among the landlords as well as the tenants. Litigations must come to end quickly, such new Housing Policy must comprehend the present and anticipate the future. The idea of a National Rent Tribunal on an All India basis with quicker procedure should be examined. This has become an urgent imperative of today's revolution. A fast changing society cannot operate with unchanging law and preconceived judicial attitude."
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31. By now, the lis has consumed about 15 years. Muniyabai, the mother of the respondents, was denied the fate of seeing the result of the litigation. It is tragic indeed that this event, instead of generating emotional attitude, was pressed into service as a fatal blow on the warp and woof of the requirement. Does the Control Act really make the man so emotionless. The celebrated saying is 'that man is a social animal'. Has the time come to modify this to say that 'man is a selfish animal'. The problem has become insoluble. Litigations abound and litigants suffer. The answer in the Court should, no doubt be swift. Unfortunately, the congestion of the calendar operates as an unadmirable 'speed breaker' on the road to justice. Surely such a lis does not need 'polygraph test' or 'long life'. None should opt to see justice crying in silence for such a long time.
32. Ex. consequenti, for the reasons stated above, I reject the contentions a chronicled in para 6 above and conclude that this appeal is devoid of merit and its fate is not improved even by I.A. No. 4191/93. The answer to the question of requirement and growing need is simple and nodusfree. Consequently, this appeal is thus, dismissed.
33. The question, still looming large in the mind is whether the appellant should be disnested immediately. Ours is a society where men are more and mansions less. In AIR 1990 SC 897, Sureshchand v. Gulam Chisti, the Apex Court, while dislodging the verdict of the Courts below and decreeing the suit for eviction, had given a year's time to vacate on undertaking. Here the parties are related to each other and as such reasonable respite in matter of eviction deserves to be given. Who knows how and at what time sense of hitch vanishes and instead spirit of harmony is born?
34. In the result, even though the decree impugned here is maintained, yet it is directed that its execution shall be held in abeyance, till 31-12-1993 conditional upon the appellant's filing an undertaking on affidavit in the trial Court by 30-8-1993 promising as under:--
(a) That the appellant shall vacate the suit-premises on or before 31-12-1993 and handover its vacant possession to the respondents without raising any objection and without causing any type of oppilation.
(b) That the appellant shall deposit entire arrears of mesne profits, if not deposited so far, in the trial Court by 30-8-1993.
(c) That the appellant shall continue to deposit in the trial Court mesne profits every month by 15th of each succeeding month until delivery of vacant possession.
35. Needless to say that on failure to file an undertaking or on violation of any of the terms indicated above, the decree shall become executable and enforceable at once and shall then be treated to be free from this eclipse.
36. Lambraquin on the lis is thus drawn. The appeal is dismissed but with a direction that the parties shall bear their own costs of this appeal as incurred. Counsel's fees for each side shall be Rs. 1,000/-, if certified. Let a decree be drawn up accordingly.
37. The record of the Court below is directed to be returned along with a copy of this judgment and decree.