Madhya Pradesh High Court
Bhogiram (Dead) vs Mohanlal (Dead) on 28 October, 2022
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 28th OF OCTOBER, 2022
SECOND APPEAL No. 587 of 2010
Between:-
1. BHOGIRAM (DEAD) S/O
TH:L.RS.SHYAMBABU @ RAMJI DAS
SHARMA S/O LATE BHOG, AGED ABOUT
57 YEARS, PATANKAR KA
BADA,KAMPOO CHANA, KOTHAR
LASHKAR (MADHYA PRADESH)
2. RAMBABU S/O LT.BHOGIRAM
SHARMA, AGED ABOUT 52 YEARS,
OCCUPATION: GURELI MATA,BALAJI
PURAM,GUDI GUDA
KANAKA,LASHKAR,GWALIOR GWALIOR
(MADHYA PRADESH)
3. LAXMAN PRASAD SHARMA S/O
LT.BHOGIRAM SHARMA, AGED ABOUT
49 YEARS, OCCUPATION: GALI
NO.2,BALAJI PURAM,GUDI GUDA KA
NAKA,LASHKAR,GWALIOR GWALIOR
(MADHYA PRADESH)
4. SMT.MAHESHWARI SHARMA W/O
RAMSHARAN PARSARIYA , AGED ABOUT
42 YEARS, OCCUPATION: JAGRATI
NAGAR,LASHKAR,GWALIOR GWALIOR
(MADHYA PRADESH)
5. SMT.RAJESHWARI SHARMA W/O
LT.RAJENDRA SHARMA, AGED ABOUT 42
YEARS, OCCUPATION: LOHAMANDI
GWALIOR GWALIOR (MADHYA
PRADESH)
6. PRAMOD SHARAM S/O LT.BHOGIRAM
SHARMA, AGED ABOUT 35 YEARS,
2
OCCUPATION:PATANKAR KA BADA
BADA,KAMPOO,LASHKAR,GWALIOR
GWALIOR (MADHYA PRADESH)
7. AMIT SHARMA S/O LT.BHOGIRAM
SHARMA, AGED ABOUT 29 YEARS,
OCCUPATION: PATAKANKAR KA BADA
KAMPOO,LASHKAR,GWALIOR
GWALIOR (MADHYA PRADESH)
8. ASHA BAI W/O LT.BHOGIRAM
SHARMA OCCUPATION: CHANA
KOTHAR,KAMPOO,LASHKAR,GWALIOR
GWALIOR (MADHYA PRADESH)
........APPELLANT
(BY SHRI ANAND V BHARADWAJ - ADVOCATE )
AND
1. MOHANLAL (DEAD) THROUGH L.RS
SMT. KRISHNA BANSAL (DEAD)
2. SURESH AGRAWAL S/O LT.RAM KISHAN
BANSAL, AGED ABOUT 44 YEARS,
OCCUPATION: ARMY KI BAJARIYA,NEAR
TAKSAAL SCHOOL,LASHKAR,GWALIOR
GWALIOR (MADHYA PRADESH)
........RESPONDENTS
(BY SHRI N.K. GUPTA - SENIOR ADVOCATE WITH SHRI S.D. SINGH - ADVOCATE )
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This appeal is coming on for hearing this day, the Court passed the following:
JUDGMET Appellants, who are, heirs of initial dependent Bhogiram preferred 3 this second appeal aggrieved by the judgment and decree passed by trial Court as well as first appellate Court.
(2) Admitted fact of the case are that predecessor of appellants was tenant of the shop which was in the ownership of respondent @ 12/-
rupees per month. Predecessor of respondent Mohanlal filed a Civil suit against predecessor of appellants for eviction and getting arrears of rent before the trial Court on the ground that from 01.02.1979, predecessor of appellants has stopped giving rent on the suit premises despite receiving notice. Beside this he was required to open a floor mill because he was not having alternate accommodation for the suit premises for which he has to alter the shops which is not possible without eviction of the shop. After receiving the notice, predecessor of appellants denied the plaint averment and has stated that he had sent rent of 772/- rupees through money order which was returned back with a notice that addressee refused to take the money order. Due to this, he has deposited rent from 01.12.1979 to 01.12.1980 before Rent Controlling Authority. Landlord is not being need the aforesaid suit shop. During pendency of suit Mohanlal died. Respondent Krishna Bansal and Suresh Bansal on the basis of will were substituted as plaintiffs. Both the parties adduced their evidence. (3) On going through the pleading of the parties and evidence adduced 4 by them, trial Court by its judgment dated 29.04.2006 on the ground of arrears of rent, decreed the suit of the respondents and directed the predecessor of the appellants to release the premises within one month. (4) Aggrieved by the aforesaid judgment and decree, heirs of respondent Bhogiram preferred an appeal before first appellate Court who also dismissed their appeal and maintain the judgment and decree passed by the trial Court. Aggrieved by the aforesaid judgment of trial Court and appellate Court, appellants preferred this Second Appeal on the ground that despite payment of rents, Court below decreed the suit against them. Beside this, application filed by them under Section 13(2) of the M.P. Accommodation Control Act on 30.08.2010 has not been decided.
(5) Learned advocate for the respondent submitted that trial Court in paragraph 21 elaborately discussed about the rent, default in payment of rent by the appellants and came to the conclusion that appellants defaulted in depositing the rent. As per the provision of Section 13 of the Accommodation Control Act, on receiving the notice, it is the duty of tenant within one month of service of writ of summons or notice of appeal or of any other proceeding or within one month of institution of appeal, deposit the rent and shall thereafter continue to deposit or pay 5 month by month by 15 of each succeeding month a sum equivalent to the rent at the rate till the decision of the suit/appeal or proceeding as the case may be. But he has defaulted. In these situation, he is not entitled to get the protection envisaged in Section 12(1) of the M.P. Accommodation Control Act.
(6) Learned First appellate Court also in its judgment in paragraph 15 elaborately discussed the fact and evidence came on record that description of rent filed by appellants shows that he has deposited 24-24 rupees for 2-2 months after 10.02.1984 on 17.05.1984 he has deposited Rs.24/-. Similarly, after 26.06.1986 he has deposited rent on 08.09.1986. Similarly after 08.04.1997 on 01.08.1997. Thereafter, on 12.07.1991 he has deposited the rent. But as per the provision of 12(1)a of M.P. Accommodation Control Act after receiving the notice within two months he has to deposit all the rent. When there is no dispute about rent, he has to deposit the rent within one month and thereafter he is duty bound to deposit rent on every month before 15 th of every month which he has not complied with.
(7) As far as the ground of application filed under Section 13(2) has not been decided is concerned, on perusing the aforesaid application, it is clear that he has mentioned specifically that all the rents have been paid 6 in last of his application. He has generally made submission that if any delay has occurred in depositing the rent, it be condoned. There is no specific prayer when rent was due why the delay occurred in depositing the rent. Counsel for the appellants, in support of his contention has placed a reliance in the case of Gurbachansingh Vs. Vimlabai as reported in A.I.R.1993 M.P.135. In the present case, no specific prayer regarding condonation of delay has been filed. (8) Heard learned counsel for the rival parties and perused the available record.
Section 100 C.P.C. reads as under:-
"100.Second Appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:7
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
(9) The Apex Court in Karnataka Board of Wakf Vs.Anjuman- Eismail Madris-un-Niswan, (AIR 1999 SC 3067) has observed that the High Court should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts.
(10) In view of the aforesaid facts, this Court is of the view that there is no substantial question of law involved in relation to the findings given by both the Courts below. Accordingly, the second appeal is dismissed being devoid of merits.
(DEEPAK KUMAR AGARWAL)
mani JUDGE
SUBASRI MANI
2022.10.31
19:00:42 -07'00'