Madhya Pradesh High Court
Shikhar Chand [D] Mamta Jain & Ors. vs Ramesh Kumar Judgement Given By: ... on 12 January, 2012
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : HON'BLE SHRI JUSTICE J.K.MAHESHWARI
SECOND APPEAL NO. 259 OF 2001
Shikhar Chand Jain (since dead) through LRs.
Vs.
Ramesh Kumar
Shri P.K. Jain, learned counsel for the appellants.
Shri A.K. Jain, learned counsel for respondent.
ORDER
(12/01/2012) This is defendant's second appeal filed under Section 100 of the Code of Civil Procedure challenging the judgment and decree dated 24/1/2001 passed by lower appellate Court in Civil Appeal No.7A/1999 granting the decree of eviction under Section 12(1)(f) of M.P. Accommodation Control Act setting aside the judgment and decree dated 21/1/1999 passed by the trial Court in Civil suit No.1- A/1999.
2. The plaintiff filed a suit seeking eviction of shop No.592/B situated near Gurudwara, Sagar Bazar, Jabalpur which was of his ownership as per the registered settlement deed executed by his father Chanduram on 14/3/1994. The defendant was the tenant in the said shop from the life time of his father and after its settlement in his favour he became tenant for the monthly rent of Rs.100/-. The said shop was shown along with the plaint by red hatches. It is stated that the plaintiff is not having any alternative suitable accommodation of his own in the city of Jabalpur to run the ready- made garments business, therefore the suit shop is required bona 2 fide. It is further stated that even after issuance of the notice by him, the rent was not paid, then suit seeking decree of eviction under Section 12(1)(a), (f), M.P. Accommodation Control Act, 1961 has been filed.
3. The defendant by filing written statement has admitted the ownership of plaintiff's shop No.592/B situated near Gurudwara, Sadar Bazar, Jabalpur by a settlement deed. It is further admitted that he is the tenant in the said shop on a monthly rent of Rs.100/-. It is further admitted that he was initially the tenant of Chanduram and continued to pay the rent to him. So far as notice given by Chanduram and the plaintiff it has not been denied but said that the reply of the said notices were sent through his Advocate. It is further stated that adjoining shop to disputed premises belongs to the father of the plaintiff, in fact, it is the shop of the plaintiff wherein he is running his business. It is further stated that in the earlier suit filed by the plaintiff's father before the Rent Controlling Authority seeking eviction they could not had succeed. Thereafter this suit has been filed seeking eviction by the plaintiff. In such circumstances, the need of the plaintiff is not bona fide and the suit may be dismissed. So far as the arrears of rent is concerned, it has deposited in the Court.
4. The Trial Court after consideration of the evidence recorded finding affirming the plea so taken by the defendant and the suit filed by the plaintiff seeking eviction was dismissed. On filing an appeal the appellate Court has considered the registered 3 settlement deed whereby the plaintiff has become owner of the disputed shop. On the point of bona fide need of the plaintiff, statement of plaintiff-Ramesh Kumar (PW-1) has been considered. On consideration of registered document of the adjacent shop wherein business in the name of Neetu Garments which is registered in the name of father of the plaintiff , the lower appellate Court recorded a finding that the plaintiff is not having any other shop available to him to run his business and looking to the statement of the plaintiff, his need was found to be bona fide and decree of eviction under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 has been passed.
5. Challenging the judgment and decree passed by the lower appellate Court, the appellants have filed this appeal which was admitted on the following substantial questions of law on 3/4/2003 which are reproduced as under :
"(a) Whether the plaintiff has failed to prove his derivative title and for that reason his suit is liable to be dismissed ?
(b) Whether in the facts and circumstances of the case the settlement deed Ex.P/1 is nominal and bogus and has been executed with intent to any how evict the defendant tenant ?
(c ) Whether in view of the admission of the plaintiff in Ex.D-1 regarding his possession and ownership of the adjoining shop, no ground of eviction is made u/s 12(1)(f) of the MP Accommodation Control Act, 1961 ?
(d) Whether the findings of the lower appellate Court in the matter of acquisition of title to the suit shop by the plaintiff and his bonafide requirement of the suit shop, are perverse ?4
(e) Whether the lower appellate Court has wrongly set aside a well considered judgment of the trial Court without legal jurisdiction ?"
6. The appellants have also filed application under Order 6 Rule 17, CPC during pendency of this appeal making amendment in the written statement. As per the order dated 8/7/2004 it was directed that such an application shall be considered at the time of final hearing.
7. In view of forgoing facts and looking to the questions of law framed by this Court, first of all application filed by the plaintiff seeking amendment in the written statement is required to be seen. By the said application defendants want to amend the written statement making the pleadings that the shop in question was never in the tenancy of the appellants' father and the said shop is different shop than the shop received by the plaintiff under the settlement deed. However, as per the settlement deed, the shop room which has come in the share of the plaintiff is different than the suit shop. The reason so stated of not introducing such amendment is that the father of the defendants was unaware of the English language, hence, not aware regarding the contents of the settlement deed and subsequently on reaching to the shop, the aforesaid fact has come to his knowledge. Thus, the said application for amendment in the written statement has been filed.
8. As per the provisions contained under Order 6 Rule 17 of CPC, it is apparent that the amendment may be allowed at any 5 stage of proceedings to alter or amend his pleadings in such manner or on such terms as may be just for determination of the real questions in controversy between the parties. As per the proviso, it is clear that no application for amendment shall be allowed after the trial has commenced, unless the Court is satisfied that despite due diligence, the party could not have raised the matter before the commencement of trial. In the present case, the tenant has admitted settlement deed and also the ownership of shop No.592/B. He has also admitted the tenancy in the said shop paid monthly rent of Rs.100/-. On the basis of such pleadings the trial Court after adducing the evidence had dismissed the suit filed by the plaintiff. On filing appeal, by setting aside the judgment and decree, the lower appellate Court decreed the suit. However, in second appeal this amendment application has been filed. It is settled position of law that the amendment application even at the stage of second appeal showing subsequent event may be allowed. But, by filing the amendment application in a second appeal withdrawing the admission as made in the written statement, cannot be directed to be allowed at this stage. In that view of the matter, I am of the considered opinion that the proposed amendment is amounting to withdrawal of admission made in the written statement, hence, it cannot be allowed at this stage after completion of evidence, and the judgment of two Courts. It is further made clear here that amendment as proposed is not based upon subsequent event, but referring a settlement 6 deed which is already in knowledge of defendant, therefore, the said application cannot be allowed. In that view of the matter, proposed amendment is not just and it is not necessary for determining the real question in controversy between the parties. More so, the reasons so assigned in filing this application at the belated stage, cannot be allowed, therefore, the application for amendment is dismissed.
9. Now coming to the substantial questions of law so framed by this Court. Looking to the pleadings of both the parties, when the defendant has admitted the ownership and also tenancy admitting the plaintiff as landlord and also document Ex.P/1 which is settlement deed, the issue of proving the derivative title by the plaintiff is not at all relevant. As per Section 12(1)(f) of M.P. Accommodation Control Act, 1961, for bona fide need the plaintiff has to prove his ownership. The ownership has been transferred as per the document Ex.P/1 (settlement deed) which has not been disputed by the defendant in the written statement. More so the tenancy has not been disputed. In such circumstances, on the insistence of the defendant without taking any plea of derivative title or of taking plea that Ex.P/1 is the bogus document, question No. (a) and (b) cannot be said as substantial question of law arise in the facts of the present case, looking to the pleadings, evidence and material available on record.
10. Now coming to the substantial question of law No.(c). It is seen that Ex.D/1 is the statement of the plaintiff recorded in the 7 earlier proceedings of eviction filed by his father. As per the statement of plaintiff-Ramesh Kumar (PW-1), the contents of the said statement has been denied. As per the pleadings in this case, the plaintiff became the owner of the shop in question according to the settlement deed. At present he is not doing the business. The father of the plaintiff was diong the business in the name of Neetu Garments which is adjoining to this shop. Document Ex.P/1 (settlement deed) has been admitted by the defendant. As per Ex.P/2 which is registration document of adjoining shop in the name of Neetu Garments, ownership of the plaintiff's father is on record. It is to be observed that the statement Ex.D/1 has merely been exhibited and the contents of the said statement, in view of the documents available in this case, have not been confronted in any case. On consideration of the contents of Ex.D/1, it reveals that earlier the plaintiff was running the shop of ready-made garments in the same shop. But subsequent to it, the ownership has been transferred to one of the shop and the earlier shop has been registered in the name of his father as apparent from the document Ex.P/2 and after settlement deed, if the plaintiff has filed the suit for bona fide need to start his own business in the shop of his own ownership, then the need of the plaintiff cannot be negatived merely on the ground that in the earlier round of litigation the father, when litigating with the tenant, had lost from the Court. However, in the facts and circumstances of the present case, when the plaintiff is not having any suitable 8 alternative accommodation, the bona fide need of the plaintiff cannot be negatived. In that view of the matter, question No.(c) is hereby answered in negative.
11. So far as questions No.(d) and (e) are concerned, it relate to acquisition of title and bona fide need and also relate to reversal of the finding being perverse. As discussed herein above, the plaintiff has acquired title on the basis of the settlement deed. The said transaction is a shame and bogus transaction which is not at all relevant in view of the judgment of this Court in the case of Amar Bahadur Singh V. S.K. Bose, 1963 MPLJ Note 5. The said issue is irrelevant after admission of the document which relates to ownership and also of tenancy. So far as bona fide need is concerned, from the evidence so adduced by the parties, it is clear that the plaintiff has to start his own business. In the adjoining shop his father was running business to which a registration document is available. It is also apparent that no other accommodation is available in the city of Jabalpur of the ownership of the plaintiff and the plaintiff is doing business of ready-made garments with his father. In such circumstances, the finding so recorded by the lower appellate Court on the point of bona fide need appears to be just and after due appreciation of pleadings, evidence and material available on record which do not warrant any interference. In that view of the matter, substantial questions No.(d) and (e) are hereby answered in negative. The judgment and decree passed by the lower appellate Court is hereby affirmed 9 decreeing the suit filed by the plaintiff on the ground of bona fide need.
12. At this stage, learned counsel for the appellants contends that the defendants/appellants are running the business since the time of their father. However, they are required to shift the entire business to some other place, therefore, reasonable time to vacate the premises may be allowed. It is also contended that they are ready to abide by all the conditions, if any, imposed for the purpose of grant of time to vacate the suit premises.
13. Learned counsel for the respondent has opposed the said prayer and contends that the appellant is required to vacate the premises within the time limit so prescribed under the statute and also looking to the conduct of the appellants who have always tried to make delay in this case, however, prayer so made by the appellants may be refused.
14. After hearing and on consideration of the fact that in the suit shop the defendants are running their business since 1995 i.e. from the life time of their father and now their father has died. In such circumstances, in the opinion of this Court, some time to vacate the suit premises deserves to be allowed to them. In the opinion of this Court six months' time from today would be reasonable to vacate the suit premises subject to following conditions :
(i) The appellants shall furnish an undertaking on affidavit before the trial Court stating the 10 fact that they shall vacate the suit premises on or before 31st July, 2012 by handing over the keys and peaceful possession of the suit shop. It be mentioned in the said undertaking that during such period he shall not be parted with possession of suit to any one and to create the third party interest in any manner.
(ii) It is further directed that the appellants shall deposit regular rent up to the said period prior to 15th day of every month.
(iii) The aforesaid undertaking be given within one month from today before the trial Court.
It is made clear here that if the appellants/ defendants fail to submit an undertaking in view of forgoing within the time so specified, the plaintiff/respondent would be entitled to file execution in accordance with law.
(iv) It is further made clear here that on submitting undertaking within the time so specified, the defendants/appellants would be entitled to remain in possession up to 31st July, 2012. But they would not be entitled to continue in possession after 31st July, 2012 in any manner and require to deliver the peaceful possession to the plaintiff/ respondent on or before the said date. It is made clear here that if the defendants/ appellants continue in the possession of the said shop in violation of the conditions and undertaking thereafter they are required to pay the mesne profit of Rs.200/- per day.
Merely imposition of mesne profit would not 11 deprive the plaintiff/respondent to proceed with the execution.
15. With the aforesaid, this appeal is dismissed. No cost.
(J.K.MAHESHWARI) JUDGE ts