Madhya Pradesh High Court
Ramesh Chandra vs Pradeep Kumar Gupta on 2 March, 2016
1 SA No.184/2014
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR.
SB : Justice R.S.Jha
Second Appeal No. 184 of 2014
Ramesh Chandra and others
vs.
Pradip Kumar Gupta and another
AND
Second Appeal No. 188 of 2014
Ashok Kumar Gupta
vs.
Pradip Kumar Gupta and others
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Shri D.D.Bansal, Advocate for the appellants in Second Appeal
No.184/2014 and for respondents No.2,3 and 4 in Second
Appeal No.188/2014.
Shri V.K.Bharadwaj, Senior Advocate with Shri Anand V.
Bharadwaj, Advocate for the appellant in Second Appeal
No.188/2014 and for respondent No.2 in Second Appeal
No.184/2014.
Shri Ravi Gupta, Advocate for the respondent No.1 in both the
appeals.
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JUDGMENT
(02/03/2016) Second Appeal No.188/2014 :
This appeal has been filed by the appellant being aggrieved by the judgment and decree dated 26.4.2014 passed by Fourth Additional District Judge, Morena in Civil Appeal No. 07A/2013, whereby the judgment and decree of the trial Court dated 31.7.2008 passed by Third Civil Judge Class-1, Morena in Civil Suit No.13A/2008 has been affirmed and confirmed and the suit filed by the respondent for eviction of the appellant has been decreed on the ground mentioned in Section 12(1)(f) of the MP Accommodation Control Act, 1961.2 SA No.184/2014
Second Appeal No.184/2014 :
2. This appeal has been filed by Ramesh Chandra, Ramniwas Gupta and Smt. Mithilesh, who professed to be the children of the original tenant Jagannath Prasad, being aggrieved by the judgment and decree dated 26.4.2014 passed by Fourth Additional District Judge, Morena in Civil Appeal No. 09A/2013, whereby the judgment and decree of the trial Court dated 31.7.2008 passed by Third Civil Judge Class-1, Morena in Civil Suit No.13A/2008 has been affirmed and confirmed and the suit filed by the respondent/plaintiff for eviction of the appellants has been decreed on the ground mentioned in Section 12(1)(f) of the MP Accommodation Control Act, 1961.
3. As both the appeals have been filed against the same judgment and decree, they are heard and decided conjointly.
4. Learned counsel for the appellant in Second Appeal No.188/2014 submits that both the courts below have grossly erred in law in allowing the suit for eviction on the ground of bonafide need for commercial purpose, i.e., for running a business, totally ignoring the material evidence on record. It is submitted that the finding recorded by the court below regarding bonafide need is perverse as the court below has not taken into consideration the stipulations mentioned by the respondent/plaintiff himself in the alleged partition (Ex.P/14) as well as the document (Ex.D/10) filed by the defendant, which is the plaint filed by the respondent/landlord seeking eviction of another shop. It is stated that as material evidence has been ignored while deciding the issue, therefore, the finding regarding bonafide need is perverse.
5. Learned counsel appearing for the appellants in Second Appeal No. 184/2014 submits that the suit as filed by the respondent/plaintiff deserves to be dismissed on account of non-joinder of necessary parties as the appellants in Second 3 SA No.184/2014 Appeal No.184/2014 are the sons and daughters of the original tenant Jagannath Prasad but were not impleaded as defendants after his death. Learned counsel relying on the decision of the Supreme Court rendered in the case of Textile Association (India) Bombay Unit vs. Balmohan Gopal Karup and another (AIR 1990 SC 2053); Harishankar Sharma vs. Laxman Prasad (2000 (1) MPWN Note 191); and Pushpa Agrawal (Smt.) vs. Omprakash Agarwal (2012(1) MPWN 113), submits that a substantial question of law arises for adjudication on this ground. It is also submitted that the first appellate court has allowed the application filed by the respondent under Order 41 Rule 27 CPC during pendency of the appeal and has considered the same without remanding the matter or the respondent's adducing any evidence in that regard, which amounts to an illegality rendering the judgment of the courts below vulnerable. He submits that in such circumstances, the appeal filed by the appellant be allowed.
6. I have heard the learned counsel for the appellants at length.
7. From a perusal of the judgments of the first appellate court and trial court as well as the documents available on record, it is evident that the trial court in paragraphs 16 to 27 has specifically dealt with the issue regarding the bonafide need of the landlord, availability of the alternative accommodation and the genuineness of the retirement. The trial court in the said paragraphs has taken into consideration the statements of PW1 Balwant Kumar, PW2 Naresh Kumar, PW3 Munnalal, PW4 Pradeep Kumar, PW5 Ramsewak Gupta on behalf of the plaintiff, and the statements of DW1 Ashok Kumar, DW6 Rajendra Kumar and other witnesses on behalf of the defendant, as well as the documents filed by the parties, and has recorded a finding to the effect that the contention of the appellants that the respondent/plaintiff had obtained the vacant possession of the shop and had thereafter constructed 4 SA No.184/2014 several new shops and rented out the same has no material bearing on the issue involved in the present suit as all the aforesaid events had occurred prior to the institution of the suit whereas the need of the landlord has to be examined on the basis of the factual aspects existing on the date of filing of the suit or the subsequent events that occurred thereafter. The trial court has thereafter recorded a finding that as on the date of filing of the suit and thereafter Pradip Kumar had no independent shop of his own and therefore the requirement for running of the business was genuine. The trial Court while doing so has also taken into consideration the objection and the evidence of the appellants regarding the fact that Pradip Kumar was already running a business in his name and that he was sitting in a shop, and has held that the aforesaid issues also do not dilute the bonafide need of the landlord as the said business is being run jointly and that merely sitting in his father's shop did not obliterate the independent need of Pradip Kumar, for whom the eviction was sought by the landlord. More so, in view of the fact that a partition vide Ex.P/14 has taken place in the family giving rise to an independent need. On the basis of the aforesaid analysis, the trial court has also recorded a finding that the plaintiff had no other alternative vacant suitable accommodation for his need and has thereafter decreed the suit. The aforesaid finding has been affirmed and confirmed by the first appellate court.
8. Apparently, there is no perversity, material irregularity or illegality in the aforesaid finding recorded by the trial court and the first appellate court as the findings are based on proper appreciation of the evidence on record. The findings of fact recorded by the courts below are concurrent and do not call for any interference by this court. No substantial question of law arises from the aforesaid findings and, therefore, the contention of the learned counsel for the appellant in Second 5 SA No.184/2014 Appeal No.188/2014 in this regard stands rejected.
9. As far as the contention of learned counsel for the appellants in Second Appeal No.184/2014 is concerned, it is observed that the first appellate court has specifically taken into consideration the contentions of the appellants in paragraphs, 57,58 and 59. The court below has found that the suit was initially filed by the father of the respondent against the father of the present appellants Jagannath Prasad and Jagannath Prasad died during the pendency of the suit.
Thereafter, appellant Ashok Kumar Gupta was impleaded as a legal representative. At that stage, before the trial court itself the appellants in Second Appeal No. 184/2014 had filed an application for being impleaded as defendants which was rejected by the trial court vide order dated 1.2.2008. Being aggrieved by the rejection, the appellants had filed a writ petition before this Court, that was registered as Writ Petition No. 658/2008, which was dismissed on 11.3.2008.
10. The first appellate court has recorded a finding that against dismissal of the writ petition no further steps were taken and, therefore, this order rejecting the prayer of the appellants to be impleaded as defendents became binding on the appellants in Second Appeal No.184/2014. The first appellate court has also taken into consideration the fact that subsequently during the pendency of the first appeal, the appellants in Second Appeal No.184/2014 filed another application for being impleaded as party on 15.2.2010, which was dismissed on 26.2.2010, against which the appellants in Second Appeal No.184/2014 filed a writ petition, which was registered as WP No.1028/2010 (I), which was also dismissed as withdrawn on 20.7.2010 with liberty to the appellants to file an appeal if so advised.
11. The first appellate court on the basis of the aforesaid undisputed facts, has held that once the court had rejected the 6 SA No.184/2014 prayer of the appellants in Second Appeal No.184/2014 to be impleaded as party and that order has been affirmed and confirmed by this Court, and has become final on account of the fact that it was not assailed before any higher forum, the contentions and issues raised by the appellants regarding being impleaded as necessary party and non-maintainability of the suit on that count became meaningless. The court below on the basis of aforesaid undisputed facts has rejected the contention of the appellants.
12. Having perused the record and taking note of the fact that the aforesaid factual aspects are undisputed, I am of the considered opinion that the contention of the learned counsel for the appellants in Second Appeal No.184/2014 regarding dismissal of the suit for non-joinder of necessary parties deserves to be and is hereby rejected.
13. I am also of the considered opinion that the issue regarding allowing of the application under Order 41 Rule 27 CPC by the first appellate court also became meaningless in view of the fact that the respondent/plaintiff had filed Ex.P/14 before the trial court, which was the document of partition amongst the co-owners and that on the basis of the said Ex.P/14 the trial court had decreed the suit of the respondent/plaintiff and the document that was sought to be placed before the first appellate court along with the application under Order 41 Rule 27 CPC was only a certified copy of the judgment of the competent court in which the said partition (Ex.P/14) was affirmed and confirmed and in such circumstances, the acceptance or otherwise of the said document becomes meaningless as the court had in fact decreed the suit by taking into consideration Ex.P/14 which is the document of partition amongst the co-owners.
14. Having perused the judgments of the courts below, I do not find that any substantial question of law arises for 7 SA No.184/2014 adjudication of the appeals. The appeals filed by the appellants being meritless are hereby dismissed.
(R.S.Jha) Judge (Yogesh)