Madhya Pradesh High Court
Smt. Renu Khandelwal vs Gujarti Mandal on 6 March, 2018
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Second Appeal No.582/2014
Smt. Renu Khandelwal
Vs.
Gujarati Mandal
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Shri Ramesh Kumar Verma, learned Senior Counsel with Shri Saurabh
Shrivastava, learned counsel for the appellant.
Shri Semeer Seth, learned counsel for the respondent.
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JUDGMENT
Reserved on 05/02/2018 Delivered on 06/03/2018 This Appeal has been filed under Section 100 of Code of Civil Procedure against the judgment dated 14/03/2014 passed by VIIIth ADJ, Jabalpur in Civil Appeal No.14-A/12, whereby learned ADJ partly allowed the appeal and partly modified the judgment and decree dated 24/08/2012 passed by XIIIth Civil Judge Class-I, Jabalpur in Civil Suit No.19-A/2009, whereby learned Civil Judge decreed the suit for eviction on the ground of Section 12(1)
(b) and (m) of M.P. Accommodation Control Act, 1961( for brevity "The Act") and directed the appellant to give vacant possession of Shop No.17 situated on the ground floor at Shri Gujarati Mandal Market Marhatal, Jabalpur (further referred as suit shop) within two months to the respondent and held that the respondent is only entitled to take vacant possession of suit shop from appellant on the ground of Section 12(1)(b) of "The Act".
2. Brief facts of the case which are relevant to the disposal of this second appeal are that respondent/plaintiff filed a Civil Suit No.19-A/09 before 2 XIIIth Civil Judge Class-I, Jabalpur for getting vacant possession of suit shop from appellant/defendant averring that the respondent/plaintiff Shri Gujrati Mandal is a registered society and owner of suit shop No.17 and appellant is a tenant of the respondent in the suit shop @ Rs.450/- p.m. The suit shop was let- out for non-residential purpose. He further averred that the appellant is highly irregular in making the payment of monthly rent of the suit shop to the plaintiff. The appellant has not paid rent of the suit shop from the month of November, 2004 till date inspite of repeated demands. The plaintiff sent a legal notice dated 20/10/2005 through its counsel to the appellant calling upon her to pay all the arrears of rent. But even after service of notice, the appellant did not pay rent due on him. On the contrary, in the reply of the notice she disputed the arrears of rent as claimed in the said notice. As per tenancy agreement, the appellant agreed to pay all the corporation taxes in respect of the suit shop to the plaintiff. But the appellant did not pay the corporation taxes of the suit shop to the plaintiff amounting to Rs.7,301/- for the period from 1997-98 to 2006-07 inspite of repeated demands of the plaintiff. Appellant also removed the wall of the suit shop without the written consent, authority and knowledge of the plaintiff and also damaged the suit shop and has materially and substantially altered the suit shop, due to which the value of the suit shop was also diminished. The appellant without the written consent, authority or knowledge of the respondent has illegally and unauthorisedly occupied and taken possession of the open space lying in front of the suit shop, which was not let-out to the appellant nor included in the tenancy premises and which does not form part of the tenancy premises. The appellant has illegally unauthorisedly and without the consent, authority or knowledge of the plaintiff sub-let and part with possession of the suit shop to Shri Sunil Khandelwal, who is presently running his business in the suit shop. So, appellant is directed to remove the encroachment to the open space encroached by him and also pay arrears of rent Rs.7,301/- and gave vacate possession of the suit shop to respondent.
3. Appellant/defendant in his written statement denied all the allegations and submitted that the appellant regularly paid rent of the suit shop and also agreed to pay all the corporation taxes and also denied from the fact 3 that without the written consent authority and knowledge of the plaintiff removed the wall of the suit shop and also damaged the suit shop, no addition or alteration has been done by the appellant and also denied from the fact that she unauthorisedly without written consent of the respondent occupied and took possession of open space and sub-let the suit premises to Sunil Khandelwal and she shifted to her parental house and prayed for dismissal of the suit.
4. Learned trial Court after recording the evidence of both the parties however did not find it proved that the appellant had not paid rent of the suit shop from the month of November, 2004 till date inspite of repeated demands and also by removing the wall of the suit shop without the written consent, authority and knowledge of the plaintiff damaged the suit shop and has materially and substantially altered the suit shop due to which the value of the suit shop was also diminished, but it found proved that the appellant without the written consent, authority or knowledge of the respondent has illegally and unauthorisedly occupied and took possession of the open space lying in front of the suit shop which was not let-out to the appellant nor included in the tenancy premises and which does not form part of the tenancy premises. The appellant has illegally unauthorisedly and without the consent, authority or knowledge of the plaintiff sublet and parted with possession of the suit shop to Shri Sunil Khandelwal, who is presently running his business in the suit shop, decreed the suit of respondent only on the ground of Section 12(1)(b) and (m) of the Act against which the appellant filed Civil Appeal No.14-A/12 which was disposed of by VIIIth ADJ, Jabalpur by judgment dated 14/3/2014 whereby learned ADJ partly allowed the appeal and set aside the judgment and decree as related to the eviction of the appellant under Section 12(1)(m) of the Act but partly affirmed the judgment and decree as related to the Section 12(b) of the Act holding that it is clearly proved that the appellant parted with possession of suit shop with Sunil Khandelwal and directed the appellant to give vacate possession of suit shop to the respondent. Being aggrieved from the judgment, appellant/defendant filed this second civil appeal.
5. Learned counsel for the appellant submitted that learned trial Court and appellate Court without appreciating evidence, properly wrongly affirmed 4 the trial Court's judgment on the ground that the appellant parted with possession of suit shop to Sunil Khandelwal. Not a single document has been filed by the respondent/plaintiff to show that the plaintiff is a registered society under the provisions of Section 22 of the M.P. Society Registrikaran Adhiniyam and Rajendra R Patel is authorised to file the suit on its behalf. So in the absence of proper evidence it is not proved that plaintiff is a registered society and Rajendra R Patel is authorised to file the suit on its behalf. He further submitted that the respondent/plaintiff averred that he let-out the shop to Smt. Renu Khandelwal, who sub-let and parted with possession of suit shop to Sunil Khandelwal, who is the brother-in-law (jeth) of the appellant. While appellant did not sub-let the suit shop to Sunil Khandelwal. The appellant was not the absolute tenant of the suit shop. The suit shop was let-out to Sanjay Khandelwal, late husband of the appellant sometimes in the year 1988. Smt. Renu Khandelwal got married with Sanjay Khandelwal on 12/12/1994 after six years from the date of creation of tenancy, therefore, it cannot be said that the suit shop was let-out to Smt. Renu Khandelwal. However, in the year 1995, for business convenience, it was shown that Smt. Renu Khandelwal was running the business in the tenanted premises, but it was a joint venture business of the family. The trial Court as well as the appellate Court granted decree and eviction of Section 12(1)(b) of M.P. Accommodation Control Act,. 1961 by misinterpreting of the provision of Income Tax Act and on conjectures and surmises and wrongly rejected appellant's application filed under the provisions of Order XLI Rule 27 of C.P.C.. Even Sunil Khandelwal is the necessary and proper party in the suit. While respondent filed the suit without making him party, which also renders the suit as not maintainable, but learned trial Court as well as the appellate Court without appreciating all these facts wrongly decreed the suit.
6. This Court has gone through the record and arguments put forth by the learned counsel for the appellant. Learned Trial Court as well as Appellate Court found it proved that the appellant parted with possession of suit shop with Sunil Khandelwal. These findings are finding of fact by both the Courts below, 5 so this Court has no jurisdiction to interfere in these findings in second appeal. There is no question of law involved in the appeal.
7. Hon'ble Apex Court in the case of Dinesh Kumar Vs Yusuf Ali reported in AIR 2010 SC 2679 after considering their previous judgements held that the law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence.
8. In this case on the point that the appellant parted with possession of suit shop with Sunil Khandelwal, the findings of both the Courts below is based on the evidence on record and not based on irrelevant material, so in the light of above Hon'ble Apex Court judgement this Court has no jurisdiction to interfere in these findings.
9. Even otherwise although learned counsel of the appellant submitted that Section 22 of the Madhya Pradesh Society Registrikaran Adhiniyam, 1973, (for short 'the Adhiniyam 1973'), provides that every society may sue or be used in the name of the President or Chairman or Principal Secretary or the trustees, as shall be determined by the regulations of the society and in default of such determination, in the name of such person as shall be appointed by the governing body of the society. While in this case suit filled by the Secretary of the society and respondent did not file any document showing that Secretary is authorised to file suit on behalf of respondent "Gujarati Mandal Society" so suit is not maintainable. But this arguments has no force. Dinesh Veera (PW/1) clearly deposed that the Plaintiff/respondent "Gujarati Mandal Society" is a registered society and earlier Rajendra Patel was the Secretary of that Society in the year 2007 when suit was filed and since year 2010 he is the secretary of respondent society and authorised to give evidence on behalf of respondent society. He also denied from the suggestion given by appellant in his cross- examination that secretary is not entitled to file the suit on behalf of respondent society. K.K.Khandelwal (DW/1) also admitted in his statement that the suit 6 shop was hired by his son Sunil Khandelwal from the Gujarati Mandal Jabalpur and he is paying rent to the Gujarati Mandal Jabalpur. He also deposed that he filed a suit against Gujarat Mandal Jabalpur regarding suit shop. He also filed copy of the order of that suit (Ex.D/11). From perusal of (Ex.D/11) it appears that this witness also filed that suit against Gujarati Mandal Jabalpur through Dinesh Veera, secretary, which also shows that this witness also believes that the secretary is authorized to file a suit on behalf of society and suit can also be filed against society through its secretary. So there is no reason to disbelieve the statement of Dinesh Veera (PW/1) that the Plaintiff/respondent "Gujarati mandal society" is a registered society and earlier in the year 2007 when suit was filed Rajendra Patel was the secretary of that society and since year 2010 he is the secretary of respondent society and secretary is authorised to file suit on behalf of respondent society.
10. As far as application under Order 41 Rule 27 of the C.P.C. is concerned, this application was filed by the appellant for taking copies of civil suit pending before XVIIIth ADJ on record. Although learned appellate Court decided the case without deciding that application, but this Court in this second appeal can also consider this application. Although appellant filed this application for taking copies of civil suit pending before XVIIIth ADJ on record, but it is not mentioned in the application as to what documents did the appellant want to file in this case through the application and what was the relevance of those documents in the suit and also why those documents were not filed before the trial Court. Appellant even did not file copies of those documents along with his application. So this application is not tenable.
11. Learned counsel of the appellant also submitted that respondent did not give the suit shop to Smt. Renu Khandelwal on rent. The appellant was not the absolute tenant of the suit shop. The suit shop was let-out to the late husband of the appellant, Sanjay Khandelwal sometime in the year 1988. Smt. Renu Khandelwal got married with Sanjay Khandelwal on 12/12/1994 after six years from the date of creation of tenancy, therefore, it cannot be said that the suit shop was let-out to Smt. Renu Khandelwal. However, in the year 1995 for business convenience, it was shown that Smt. Renu Khandelwal was running 7 business in the tenanted premises, but it was a joint venture business of the family. Appellant did not sub-let the suit shop to Sunil Khandelwal.
12. But these arguments also have no force. Appellant Smt. Renu Khandelwal in her written statement clearly admitted that she is the tenant of respondent in the suit shop. Although K.K.Khandelwal (DW/1) deposed that Smt. Renu Khandelwal was his daughter-in-law and women do not businesses in his family. Male members of the family take care of them and work on their behalf. Sunil Khandelwal is the eldest son of his family. But appellant neither pleaded in her written statement that Sunil Khandelwal ran the business on behalf of appellant in the suit shop nor produced any document showing that Sunil Khandelwal ran a business on behalf of Mrs. Renu Khandelwal in the suit shop. Mrs. Renu Khandelwal did not even appear for giving evidence in the suit and Sunil Khandelwal also did not appear in the witnesses box in this regard. Even this appeal was also not filled by Mrs. Renu Khandelwal. This appeal has been filled by Smt. Kamla Khandelwal, Mother-in law of Mrs. Renu Khandelwal on the basis of power of attorney. In that power of attorney also it is mentioned that presently Mrs. Renu Khandelwal is residing at Pratapgarh (U.P.). K.K.Khandelwal (DW/1) admitted in his cross-examination that earlier Sanjay Khandelwal was the tenant in the suit shop and after his death Mrs. Renu Khandelwal became the tenant in the suit shop. It is correct that at present Mrs. Renu Khandelwal is not using the suit shop. Currently there is no business running in the name of Mrs. Renu Khandelwal in the suit shop. Business is running in the name of Sanjay Khandelwal and company in the suit shop at present and its proprietor is Sunil Khandelwal, which shows that Mrs Renu Khandelwal has left the occupation of the suit shop and handed over its possession to her Brother-in-law (jeth) Sunil Khandelwal and Mrs. Renu Khandelwal is not using suit shop at present.
13. So in the considered opinion of this Court learned Court below did not commit any mistake in finding that Smt. Renu Khandelwal parted with the possession of suit shop to Sunil Khandelwal.
814. In eviction suit the sub tenant is not the necessary party. Hon'ble Apex Court in the case of Rupchand Gupta v. Raghvanshi (Pvt.) Ltd. and Another, AIR (1964) SC 1889 observed as under:-
" It is quite clear that the law does not require that the sub- lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub- lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub- lessee; but this is a position well understood by him when he took the sub- lease. The law allows this and so the omission cannot be said to be an improper act." (emphasis supplied) In our considered opinion, the present respondents could not be said to be "necessary party" to the suit. Non-joinder of respondents, hence, would not make a decree passed by the Court of Small Causes, Mumbai nullity or executable."
15. Hon'ble Apex Court in the case of Balvant N. Viswamitra and others Vs. Yadav Sadashiv Mule (deceased by L.Rs.), AIR 2004 SC 4377 also took the same view.
16. In light of above discussion, this Court is of the view that no substantial question of law arises for consideration in the present appeal.
17. Consequently, the appeal is dismissed at the motion stage and judgement and decree passed by the first Appellate Court is hereby affirmed.
No order as to the cost.
(Rajeev Kumar Dubey) JUDGE monika/as Digitally signed by ANURAG SONI Date: 2018.03.07 10:29:56 +05'30'