judgement:
Appeal No. 991/76.
(Appeal by Special Leave from the Judgment and Order dated the 21.1.1976 of the Madhya Pradesh High Court in Second Appeal No. 415 of 1971) section Choudhury, D.N. Mishra, O.C. Mathur and Shri Narain for the appellant.
G.L. Sanghi, V.K. Sanghi, R.K. Sanghi and S.N. Khanduja for the respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
A suit for eviction of an accommodation from the tenant to whom it had been let for residential and non residential 768 purposes resulted in dismissal by the trial Judge.
But in an appeal, the final court of fact took the view that the landlord (respondent) was entitled to eviction.
The tenant challenged the appellate decree before the High Court in Second Appeal without success and has therefore come up to this Court with this appeal by special leave.
A short point has been raised which deserves only a short answer.
Since we agree with the High Court which in turn has agreed with the first appellate court, our judgment can afford to be brief.
A statement of necessary facts may now be given.
The landlord had let out the premises, which is a storeyed building, to be tenant as per exhibit P 1 of 1955.
The signif icant clause in the lease deed runs thus: "1 XXX 2.
I take your house for my own use i.e. for opening a cloth shop and for residential purposes and I will not sublet your house to anybody.
XXX XXX XXX XXX.
" The tenant has thus put the building to busi ness and residential purposes.
The landlord, who is an M. Sc., claimed the building back on the score that he wanted to run a medical store on the ground floor a non residential purpose and stay on the first floor with his wife a residential purpose.
Thus the acommo dation was let out for dual purposes, was being used presumably for these requirements and was being claimed back by the landlord for the twin purposes mentioned above.
The final court of fact has held that the landlord needs the building for his chemist 's shop and for his residential use.
The High Court in Second Appeal has upheld this finding and added that "the finding as to his bonafide requirement was rightly not challenged before me .
The conclusion that the courts have reached is the only conclusion possible on the evidence on record in the light of the circumstances appearing.
" This statement by the High Court that the bonafide requirement of the landlord was not challenged before it has not been questioned in the memorandum of appeal to this Court.
It must therefore be taken that the bonafide need of the landlord is validly made out.
The short point that survives is as to whether the composite purposes of the lease would put it out of the ground set out for eviction under section 2 of the Madhya Pradesh Accommodation Control Act, 1961.
The said Act defines 'accommodation ' thus: " 'accommodation ' means any building or part of a building, whether residential or non residential and includes, XX XXX XXX.
" 769 It follows that an accommodation can be resi dential, non residential or both.
section 12 bars an action of eviction of a tenant from any accommodation except on one or more of the grounds set out therein.
section 12(1) (e) and (f), bearing on the present case, may be appropriately extracted here: "12.
Restriction on eviction of tenents (1) (a) to (d) x x x x x (e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held.
and that the landlord or such person has no other reasonably suitable residential accommoda tion of his own in the occupation in the city or town concerned; (f) that the accommodation let for non residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasona bly suitable non residential accommodation of his own in his occupation in the city or town concerned;.
XXX XXX XXX.
" The residential portion is a part of the building and is an accommodation by defini tion.
The non residential portion is also a part of the building and is an accommoda tion by definition.
The lease has been given for residential as well as non residential purposes.
The landlord is entitled to evic tion of the residential portion if he makes out a bonafide residential requirement.
Likewise he is entitled to eviction of the non residential portion which is an accommoda tion if he makes out a non residential requirement.
We have already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non residential requirements.
Therefore, nothing more can be done in defence of the tenant in the light of the present law.
Counsel contended that in a decision of this Court, viz, section Sanyal vs Gian Chand,(1) it has been held that it is not permissible for the court to split up a contract in an eviction proceeding.
We agree.
There is no question of splitting up of the contract in the present case, as is abundantly plain from what we: have stated.
The contract was integral but had dual purposes.
The landlord has put forward dual requirements which neatly fit into section 12(1)(e) and (f).
The conse quence is inevitable that the eviction order has to be upheld.
(1) ; 770 It is seep, that the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years.
It is therefore but fair that the.
tenant is given sometime to rehabilitate himself by securing an alter native but suitable accommodation.
In our towns where scarcity of accommodation is the rule it is not that easy to secure alternative premises.
Taking due note of this reali ty, we direct that while dismissing the appeal the eviction order shall not be put into execution before 1st January, 1978.
Parties will bear their respective costs.
S.R. Appeal dismissed.

summary/full:
Under sub clauses (e) and (f) of section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961, a landlord can evict a tenant, if the residential and the non residential accommodation respectively let out to the latter is required bona fide by him for occupation as a residence and for the purpose of continuing or starting his business.
Accommoda tion under the Act means any building or part of a building, whether residential or non residential.
The appellant tenant was inducted in by the respondent in 1955 for the dual purposes of residential and non resi dential purpose of running a cloth shop.
The landlord, bona fide required the building for his residence and also for starting his business of running a Chemist shop.
The Evic tion Suit filed by him was dismissed by the trial court, but the appellant and the High Court ,,ranted him the eviction decree.
Discussing the appeal by special leave, the Court.
HELD: The residential portion as well as a non residen tial portion are parts of the building and each is an accom modation by definition.
The landlord is entitled to evic tion of the "accommodation" if he makes out a bona fide residential and non residential requirement of the portions.
In the instant case the contract was integral but had dual purpose.
The landlord has put forward dual requirements which neatly fit into section 12(1)(e) and (f) of the Madhya Pradesh Accommodation Control Act, 1961.
The findings of the appellate Court regarding the bona fide requirement of the landlord, not having been challenged in the High Court and in this Court in the memorandum of Appeal, the conse quence viz. eviction is inevitable.
[769 E G] section Sanyal vs Gianchand ; , distinguished.
[The Court, however granted time to the appellants for vacating the building till 1 1 1978, in terms of equity].


judgement:
l. A. 337 & 367/1976 (Appeals by Special Leave from the Judgment and Order dated 24.3.1976 of the Punjab and Haryana High Court in Srl.
A No. 757 712 75 and Murder Reference No. 27/75 and in Crl.
Appeal No. 759 of 1975) A. K. Sen and Harjinder Singh, for the appellant.
N.S. Das Behl, for the respondent.
The Judgment of the court was delivered by KRISHNA IYER, J.
In Crl.
Appeal No. 337/1976 by special leave Shri A.K. Sen has confined his challenge indeed, leave itself was limited to the question of sentence.
The case of murder was proved and the conviction by the Sessions Court was confirmed by the High Court.
The Sessions Judge awarded life imprisonment to two accused and death sentence to the appellant.
The High Court confirmed the death sen tence and hence this appeal.
Section makes a departure from the previous Code on account of humanist considerations to personalise the sentence to be awarded.
The object of the provision is to give a fresh such circumstances as may help the court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case.
Of course, when it is a case of conviction under section 302, I.P.C. if the minimum sentence is imposed the question of providing an opportunity under Sec. 235 would not arise.
, In this case it is admitted that no opportunity was given under section 235(2) Cr.
P.C. to the appellant to.
show cause as to why the lesser sentence of life imprisonment should not be inflicted.
We may make it absolutely clear that such a failure will not affect the conviction under any circumstances.
The only point is relevant to sentence.
Even there in a murder ease where the charge of murder is made out, the limited question is as between the two sen tences prescribed under the Penal Code.
In Santa Singh vs State of Punjab(1) this Court considering section 235 (2) Cr.
P.C. held that the hearing contemplated by that sub section is not confined merely to hearing oral submissions but extends to giving an opportunity to the prosecution and the accused to place before the court facts and materials relating to the various factors bearing on the question of sentence and, if they are contested by either side, then to produce evidence for the purpose of establish ing the same.
Of course, in that particular case this Court sent the case back to the sessions court for complying with section 235(2) Cr.
It may well be that in many cases send ing the case back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice.
In such cases it may be more appropriate for the appellate court to give an opportunity to the parties in terms off section 235(2) to produce the (1) A.I.R. 1976 S.C. 2386 713 materials they wish to adduce instead of going through the exercise of sending the case back to the trial court.
This may in many cases save time and help produce prompt justice.
In the present case we propose to adopt that course and counsel for the parties agree that they will rely upon the materials available of record and they have nothing more to offer to the court bearing on the question of sentence.
It will be an idle formality in a situation like that to remit the case to reconsider the question of sentence to the Sessions Court.
Coming, to the facts of the present case, having heard both sides we are impressed by Shri Sen 's submission that the death sentence has been inflicted nearly two years ago and the agony of such a sentence has been an excruciating experience suffered by the convict for a long period.
This, by itself, may not be a circumstance to bring down the death sentence, if otherwise the act is took brutal, depraved or meriting the highest penalty.
It has been now established in many decisions of this Court that death sentence must be awarded where there are aggravating factors (vide E. Annami na vs State of Andhra Pradesh(1).
The appellant had two other assailants with him who have been awarded life impris onment.
Moreover, it is evident from the records that there was an exchange of abuse between the parties, viz., Shiv Singh and the accused party.
It is also apparent that there was no motive for the appellant to kill the innocent child who died, a circumstance which has influenced the courts below in awarding the capital sentence.
The other circumstances present also indicate that there is no partic ular reason why the appellant should have been given the severer sentence and we are satisfied that the ends of justice would be met be awarding life imprisonment.
We accordingly direct that the sentence of life imprisonment should be substituted in place of death sentence awarded by the trial court and confirmed by the High Court.
We allow the appeal to this extent.
Appeal No. 367 of 1976 is dismissed as not pressed.
Cr. A. 337 allowed in part and sentence modified.
Cr. A. 367/76 dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was convicted along with two other accused under section 302 I.P.C. and sentenced to death while the other two were sentenced to life imprisonment.
In appeal to this Court against the orders of the High Court confirming the death sentence imposed, the special leave was granted limit ed to sentence.
Allowing the Criminal Appeal No. 337 of 1976 in part and modifying the death sentence to one of life imprisonment, the Court, HELD: (1) The object of section is to give a fresh opportunity to the convicted person to bring to the notice of the court such circumstances as may help the court in awarding an appropriate sentence have regard to the per sonal, social and other circumstances of the case.[712 D] (2) Failure to give an opportunity under s" 235(2) Cr.
P.C. will not affect the conviction under any circum stance.
In a murder case where the charge is made out the limited question is as between the two sentences prescribed under the Penal Code.
If the minimum sentence is imposed.
question of providing an opportunity under section 235 would not arise.
[712 F] (3) The hearing contemplated by section 235(2) is not con fined merely to hearing oral submissions but extend giving an opportunity to the prosecution and the accused to place before the court facts and materials of sentence and;if they are contested by either side then to produce evidence for the purpose of establishing the same.
[712 G] Santa Singh vs State of Punjab A.I.R. 1976 S C 2386, reiter ated.
(4) To save time and expense and help produce prompt justice, it may be more appropriate for the appellate court to give an opportunity to the parties in terms of section 235(2) to produce the materials they wish to adduce instead of going through the exercise of sending the case back to the trial court.
1713 A] In the instant case, the Court modified the death sen tence to one of life imprisonment in view of the facts: (i) The death sentence has been inflicted nearly two years ago, and the agony of such a sentence has been an exCruciating experience suffered by the convict for a long period; (ii) The appellant had two other assailants with him who have been awarded life imprisonment; (iii) There was no motive for the appellant to kill the innocent child; and (iv) The other circumstances present indicate that the ends of justice would be met by awarding life imprisonment.
[713 G E] E. Annamma vs State of Andhra Pradesh ; , referred to