Madhya Pradesh High Court
Pandit Hardutt Mishra vs Mithailal And Anr. on 12 July, 2006
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. The plaintiff has assailed the judgment and decree passed by the learned First Appellate Court dismissing his suit for eviction and allowing the appeal of tenant/defendant.
2. Near about three decades ago, the present suit for eviction on the basis of relationship of landlord and tenant was filed by plaintiff/appellant in the Trial Court on 13-7-1977 under various grounds enumerated under Section 12(1) of M.P. Accommodation Control Act, 1961 (in short 'the Act').
3. The grounds of eviction and the pleadings of the plaintiff were denied by defendant in his written statement.
4. During the pendency of the suit, on account of admission made by the defendant in his testimony, the plaintiff submitted an amendment application to add a ground under Clause (b) of Section 12(1) of the Act. The Trial Court allowed the amendment application and permitted plaintiff to raise the said ground.
5. The Trial Court after framing necessary issues and recording the evidence of the parties decreed the suit of plaintiff only on the ground envisaged under Section 12(1)(a) of the Act.
6. The defendant filed an appeal before the First Appellate Court assailing the judgment of the Trial Court. The plaintiff/appellant though he was respondent in the First Appellate Court not only supported the judgment of eviction passed by the Trial Court under Section 12(1)(a) of the Act but also supported the other grounds also in order to seek eviction. The Appellate Court rejected the contention of landlord appellant that he is entitled to a decree under Section 12(1)(i) and (b) of the Act and also held that the ground under Clause (a) of Section 12(1) of the Act is not made out. The Appellate Court allowed the appeal of tenant and dismissed the suit in toto. Hence, this second appeal has been preferred by the landlord appellant.
7. This Court on 18-1-1993 admitted the appeal on following substantial question of law:
Whether, in view of the facts and circumstances of the case, particularly the admission of the respondent/tenant about the tenancy of sub-tenant Gulab Chand, the appellant has made out a case for eviction of the respondent under Section 12(1)(b) of M.P. Accommodation Control Act, 1961 ?
8. Shri Patel, learned Counsel for appellant has also filed an application (LA. No. 6355/2006) under Section 100(5), CPC, in order to frame one more substantial question of law in regard to passing of decree under Section 12(1)(a) of the Act.
9. Learned Counsel for appellant by inviting my attention to Para 4 of the statement of defendant Mithailal (D.W. 1) which was recorded on 10-1-1980 has argued that the defendant himself has admitted that he has inducted one Gulab Chand and he is realizing rent @ Rs. 5/- per month from him. It has been further contended by learned Counsel that on the basis of such admission made by defendant in his cross-examination an application to amend the plaint adding a new ground under Section 12(1)(b) of the Act was raised and which was allowed by the Trial Court and the said ground of eviction was also added in the plaint. The contention of learned Counsel is that the admission is the best evidence upon which the opposite party can rely upon. To buttress his submission, he has placed reliance on a decision of Supreme Court, they are Narayan Bhagwantrao Gasavi Balajiwale v. Gopal Vinayak Gosavi and Ors. , and thus according to the learned Counsel since there is an admission of defendant Mithailal in his testimony that one Gulab Chand is residing in one portion of the suit accommodation and he is realizing the rent from him at the rate of Rs. 5/- per month, the two Courts below erred in substantial error of law in not passing the decree under Section 12(1)(b) of the Act.
10. It has also been putforth by learned Counsel that a decree under Section 12(1)(a) of the Act is also made out as there are several defaults in depositing the monthly rent during the pendency of the suit and the Court erred in substantial error of law by condoning the delay without any application being filed by the tenant in that regard. In support of his contention the decision of Supreme Court Sayeda Akhtar v. Abdul Ahad , has been placed reliance. The contention of learned Counsel is that in the case of Sayeda Akhtar (supra), there were three defaults in depositing the monthly rent of November, 1985 and for the months of May and June, 1988 and the application to condone the delay in depositing the rent was filed in 1990. The Apex Court held that the application of condonation of delay in depositing the monthly rent cannot be entertained and by allowing the appeal the suit was decreed. The contention of learned Counsel is that the present case is far better from that of Sayeda Akhtar (supra), for the simple reason that in the present case, there are several defaults and the important thing is that no application was filed to condone the delay in depositing the rent. The Trial Court in its judgment Para 36 onwards has held that after fixing the provisional rent, there were defaults and the defendant submitted application for its condonation and which was allowed by the Court. But, according to learned Counsel, thereafter there were several defaults and no application to condone the delay has been filed by the tenant, therefore, the appellant is also entitled for decree under Section 12(1)(a) of the Act and a substantial question of law as proposed in the application may be framed.
Regarding substantial question of law framed:
11. The Trial Court decreed the suit of plaintiff only on the ground under Section 12(1)(a) of the Act. On the other grounds, the suit was dismissed since they were not found to be proved. The tenant/appellant preferred the appeal before the First Appellate Court assailing the decree of eviction passed against him under Section 12(1)(a) of the Act. The landlord supported the decree of eviction on other grounds also. In the case of Kamal Kumar v. Smt. Imrati Bai and Ors. 2003 (1) JLJ 296, it has been categorically held by this Court that if a decree of eviction on a particular ground under the Act has been passed by the Trial Court, which is assailed by tenant by filing appeal before the Appellate Court, a landlord can support the decree of eviction on other grounds also under Order 41 Rule 31, CPC, without filing the cross-objection under Order 41 Rule 22, CPC. This Court placed reliance on earlier decisions they are Tej Kumar Jain v. Purshottam and Anr. , Hiralal v. Om Prakash 1981 (I) MPWN 236 and Ismail Khan v. Shankarlal Chaurasia 1984 JLJ 609.
12. The learned First Appellate Court though permitted the appellant to support the decree of eviction on the ground envisaged and under Clause (b) of Section 12(1) of the Act but did not find the said ground to be proved.
13. It would be condign to quote Section 12(1)(b) of the Act, which reads thus:
(b) that the tenant has, whether before or after the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise.
14. If this provision is kept in juxtaposition to Para 4 of the testimony of defendant Mithailal (D.W. 1) which was recorded on 10-1-1980 it is luminously clear that he (tenant) Mithailal sub-let out a part of the suit accommodation to Gulabchand at the rate of Rs. 51- per month. It would be germane to quote those lines of his statement in which there is an admission of defendant that he has given a portion of the suit house to Gulabchand and is realizing Rs. 5/- per month from him:
eSa xqykc pUn ls 5 :- fdjk;k ysdj 15 :-
fdjk;k oknh dks ns nsrk Fkk A xqykc pUn ijNh esa jgus ds fy, eSaus dg fn;k Fkk A
15. Since there is a clear admission of defendant in his testimony that he is realizing Rs. 5/- rent from Gulab Chand, the maxim Cadit quaestio comes into play and the matter admits of no further argument. At this juncture, it would also be quite relevant to place reliance on another maxim Confessio facta in judicio omni probatione major est, which would mean that the confession made in a judicial proceeding is of greater force than all proof. Thus, no argument is required since there is an admission of defendant that he has permitted one Gulabchand to reside in 'Parchhi', which is a part of suit accommodation and he is realizing Rs. 5/- per month from him and thereafter paying rent Rs. 15/- per month to the plaintiff. In the case of Narayan Bhagwantrao Gasavi Balajiwale (supra), the Apex Court has categorically held that an admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. There is nothing contrary on record in order to show that this admission was withdrawn or is erroneous. Since there is clear admission of the defendant that he gave a portion of the suit accommodation to Gulab Chand @ Rs. 5/- per month and by realizing the said rent from him he is paying Rs. 15/- to the plaintiff, therefore, I am of the view that on account of admission of the defendant/tenant the plaintiff has proved the ground of sub-tenancy. Hence, it is proved that the defendant has sub-let a part of suit accommodation to one Gulab Chand and the two Courts below erred in substantial error of law in not passing the decree of eviction under Section 12(1)(b) of the Act.
16. The substantial question of law is thus answered that in view of the facts and circumstances of the case, and particularly the admission of the respondent/tenant about the tenancy of sub-tenant Gulab Chand a ground of eviction under Section 12(1)(b) of the Act is made out and plaintiff is entitled to the decree under this ground.
17. Since, I am allowing the appeal and decreeing the suit on this ground, the application (LA. No. 6355/2006) filed under Section 100(5), CPC is not being dealt with.
18. Resultantly, this appeal succeeds and is hereby allowed. The judgment and decree passed by First Appellate Court dismissing the suit is hereby set aside and the suit of plaintiff on the ground envisaged under Section 2(1)(b) of the Act is hereby decreed. The respondent shall bear the cost of appellant. Looking to the long drawn litigation as the suit was filed near about three decades before on 13-7-1977, the respondent is liable to pay cost to the plaintiff. Counsel fee Rs. 5000/-, if pre-certified.