Madhya Pradesh High Court
Nitesh Mangal vs Shri Rajendra Prasad Gupta on 17 November, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 17th OF NOVEMBER, 2022
WRIT PETITION No.5191 OF 2017
BETWEEN:-
NITESH MANGAL, S/O LATE SHRI
SANTOSH MANGAL, AGED 21
YEARS, R/O BEHIND COURT,
KUND ROAD, SABALGARH,
DISTRICT MORENA.
........PETITIONER
(BY SHRI NAKUL KHEDKAR - ADVOCATE)
AND
1. SHRI RAJENDRA PRASAD GUPTA,
S/O LATE SHRI PATIRAM GUPTA,
AGED 48 YEARS, OCCUPATION -
SHOP KEEPER, R/O NEAR BLOCK
OFFICE VIJAYPUR ROAD,
SABALGARH, DISTRICT MORENA.
2. SMT. REKHA MANGAL, W/O LATE
SHRI SANTOSH MANGAL, AGED 40
YEARS,
3. KU. SHEETAL MANGAL, D/O LATE
SHRI SANTOSH MANGAL, AGED 19
YEARS.
BOTH R/O BEHIND COURT, KUND
ROAD, SABALGARH, DISTRICT
MORENA.
2
........RESPONDENTS
(SHRI M.L. BANSAL- ADVOCATE FOR RESPONDENT
NO.1)
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This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 227 of the Constitution of India has been filed seeking the following reliefs"-
"(i). That the impugned order dt.21.4.2017 (Annexure P/1) passed by the learned Civil Judge Class 2 Sabalgarh, District Morena in Civil Suit No.3A/2016 may kindly be set aside and the application filed by the respondent No.1/plaintiff under Section 13(6) of the CPC may kindly be dismissed.
(ii) That any other relief to which this Hon'ble Court may deem fit may also be directed to be extended in favour of the petitioner in the interest of justice. Costs be also awarded in favour of the petitioner."
2. It is submitted by the counsel for the petitioner that the respondent no.1 has filed a suit for eviction on the ground of bonafide requirement for non-residential use and arrears of rent. The petitioner filed his written statement and denied the plaint averments as well as specifically denied the landlord-tenant relationship. It is submitted that by the impugned order dated 21/4/2017 the Trial Court has struck off the defence of the petitioner under Section 13(6) of MP Accommodation Control, Act on the ground that the petitioner has not complied with the mandatory provisions of Sections 13 (1) and 13 (2) of the M.P. Accommodation 3 Control Act and has neither paid the rent nor has deposited the arrears of rent.
3. It is submitted by the counsel for the petitioner that once the tenant/defendant has denied the landlord-tenant relationship, then he is not under obligation to deposit the rent. Furthermore, the tenant cannot be deprived of his right to demolish the case of the plaintiff. The consequences of the impugned order would be that even the petitioner would not be able to cross the plaintiff to demolish the case of the plaintiff and thus, the order under challenge is bad.
4. Per contra, the petition is vehemently opposed by the counsel for the respondent no.1. It is submitted that even the issues have not been framed and, therefore, so far as the apprehension expressed by the petitioner that the petitioner would not be allowed to cross examine the plaintiff in order to demolish the case of the respondent no.1 is misconceived. That stage has not yet arrived. So far as the order under Section 13 (6) of the MP Accommodation Control Act is concerned, it is submitted that whether the tenant has denied the landlord-tenant relationship or not, but he is under obligation to deposit the rent, which has not been done and the Trial Court has rightly struck off his defence. Furthermore, it is submitted that it is incorrect to say that the petitioner is not the tenant of the respondent no.1. The petitioner has specifically pleaded in his plaint that the FIR in Crime No.199/2015 has been lodged by the petitioner against the respondent for offence under Sections 323, 294 and 506-B of IPC. In the said FIR he has specifically admitted that he is the tenant of the respondent no.1. It is further submitted by the counsel for the respondent no.1 that the respondent no.1 has filed certain 4 documents on 23/11/2017 alongwith the list of documents, which show that in reply to the show-cause notice issued by Municipal Council, Sabalgarh, District Morena, the petitioner had specifically stated that he is the tenant of the respondent no.1 and in case if the Municipal Council, Sabalgarh, District Morena wants to take any action against the shop, then it must issue notice to the landlord, i.e. respondent no.1. It is further submitted by the counsel for the respondent no.1 that the aforesaid reply dated 13/9/2004 submitted by the petitioner to the Municipal Council Sabalgarh, District Morena is in response to the notice dated 10/9/2004 is a part of the record of the Trial Court and he tenders his apology for not filing the documents alongwith an application supported by an affidavit. It is also submitted that the respondent no.1 has also filed copy of FIR No.199/2015 registered at Police Station Sabalgarh, District Morena alongwith the list of documents and the reference of the same has been given in the plaint and thus, the said document can be seen.
5. Heard learned counsel for the parties.
6. The counsel for the respondent no.1 also could not point out any provision of law, which empowers the parties to place the documents on record alongwith the list of documents without there being any corresponding pleadings or affidavit in support of the same.
7. The first question for consideration is "as to whether the petitioner can be exempted from depositing the rent merely on the ground that he has denied the landlord-tenant relationship or not?"
8. The Supreme Court in the case of Asha Rani Gupta Vs. Vineet Kumar reported in (2022 SCC Online SC 829) has held as under:-
"42. In the context of the proposition of denial of title of the plaintiff and denial of relationship of 5 landlord and tenant between the plaintiff and defendant, we may also observe that such a denial simpliciter does not and cannot absolve the lessee/tenant to deposit the due amount of rent/damages for use and occupation, unless he could show having made such payment in a lawful and bonafide manner. Of course, the question of bonafide is a question of fact, to be determined in every case with reference to its facts but, it cannot be laid down as a general proposition that by merely denying the title of plaintiff or relationship of landlord-tenant/lessor- lessee, a defendant of the suit of the present nature could enjoy the property during the pendency of the suit without depositing the amount of rent/damages."
9. Thus, it is clear that merely because the petitioner has denied the landlord-tenant relationship, would not absolve him from making payment of the rent. On the contrary, it may give rise to an additional ground for eviction.
10. Be that whatever it may.
11. It is next contended by the counsel for the petitioner that the Supreme Court in the case of Modula India Vs. Kamakshya Singh Deo reported in AIR 1989 SC 162 has held that even if the evidence of the tenant has been struck off, still he is entitled to cross-examine plaintiff's witnesses and address argument on basis of plaintiff's case. It is submitted that striking off the defence of the petitioner would result in denial of an opportunity to cross-examine the plaintiff, because the petitioner would not be in a position to put forward his defence and thus, the valuable right of the petitioner would be adversely affected, as held by the Supreme Court in the case of Modula India (supra).
612. Heard learned counsel for the petitioner.
13. According to the petitioner himself, issues have not been framed because of an interim order passed by this Court. Thus, the stage of recording of evidence has not arrived. Once the defence of the petitioner is struck off, he would not be in a position to take up his defence independently, but in the light of the judgment passed in the case of Modula India (supra), he would be entitled to demolish the case of the plaintiff by cross-examining him and addressing on the basis of plaintiff's case. No further deliberations are required on this issue because that stage has not come so far. Accordingly, as no jurisdictional error could be pointed out by the counsel for the petitioner, therefore, the order dated 21/4/2017 is hereby affirmed.
14. The interim order dated 17/8/2017 is hereby vacated. Because of the interim order passed by this Court the civil suit has remained under suspended animation for a period of more than five years and the tenant has enjoyed the fruits of the shop without there being any progress in the trial. Under these circumstances, this Court is of the considered opinion that the petitioner has to be saddled with cost.
15. Accordingly, the petition is dismissed with cost of Rs.25,000/- (Rs. Twenty Five Thousand Only) to be deposited by the petitioner within a period of one month from today before the Trial Court. In case of non-deposit of cost, further consequences will follow.
(G.S. AHLUWALIA) JUDGE Arun* ARUN KUMAR MISHRA 2022.11.18 17:07:18 +05'30'