Madhya Pradesh High Court
Anil Kumar Jain & Ors vs Raj Kumar & Ors on 6 November, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 SA No.140/2003
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 6th OF NOVEMBER, 2024
SECOND APPEAL No. 140 of 2003
ANIL KUMAR JAIN & ORS
Versus
RAJ KUMAR & ORS
Appearance:
Shri Ajay Ojha - Advocate for the appellants.
None for respondent 1, though served and represented.
JUDGMENT
This second appeal has been preferred by the appellants/defendants 1-5 challenging the judgment and decree dtd.09.10.2002 passed by District Judge, Sagar in civil appeal No.23-A/2001 affirming the judgment and decree dtd. 05.03.2001 passed by IV Civil Judge Class-II, Sagar in civil suit No.81-A/2000, whereby respondent 1/plaintiff's suit for eviction filed on the grounds under section 12(1)(b)(d)(f) and (g) of the M.P. Accommodation Control Act, 1961 (in short 'the Act') has been decreed on the grounds under Section 12(1)(b)&(f) of the Act.
2. Facts in short are that the plaintiff instituted the suit with the allegations that the defendants are tenant in the shop on rent of Rs.100/- per month but have not paid rent w.e.f. April, 1992 and have kept the same locked since after death of their father, as the defendants 1-4 are carrying out their business at different places. It is alleged that father of defendants had sub-let the shop on rent of Rs.300/-. The shop in question is required bonafidely by the plaintiff for his elder son and brother and there is no other alternative accommodation available in the township.
Signature Not Verified Signed by: SWETA SAHU Signing time: 11/11/2024 5:25:05 PM 2 SA No.140/2003The house being 100 years old, is in dilapidated condition, therefore, the plaintiff wants to get his house repaired, which is not possible without getting vacated the shop in question. On interalia allegations the suit was instituted.
3. Defendants 1 and 2 to 5 appeared and filed separate/two sets of written statements denying the plaint allegations and contended that no rent is due against the defendants because the plaintiff despite receiving rent, did not issue the rent receipts. Neither the defendants nor their father had sub-let the shop to anybody nor the shop in question is locked/closed, but the defendants are still carrying out their business therein. The shop is also not required by the plaintiff for his son or brother, which also does not require any repairing. Just with a view to get enhanced rent the suit has been filed. As such the suit was prayed to be dismissed with compensatory cost of Rs.5,000/-. The defendants 6 to 9 even after service of summons did not appear, hence were proceeded ex parte.
4. On the basis of pleadings made in the plaint and written statements, trial court framed issues and recorded evidence of the parties and upon due consideration of the material available on record, decreed the suit on the grounds under Section 12(1)(b)&(f) of the Act. Upon filing appeal by the defendants 1-5, the same was dismissed vide impugned judgment and decree dtd. 09.10.2002 affirming the judgment and decree of trial court, against which instant second appeal was filed, which was admitted for final hearing on 13.08.2003 on the following substantial questions of law:
(1) Whether an eviction decree can be made on ground of unlawful sub-
letting of the suit premises under section 12(1)(b) Act, 1961?
Signature Not Verified Signed by: SWETA SAHU Signing time: 11/11/2024 5:25:05 PM 3 SA No.140/2003(2) Whether the eviction decree under section 12(1)(b) Act, 1961 ignores the principles in Gajanan Dattatraya Vs. Sherbano Hoshang Patel and others AIR 1975 S.C. 21562 ?
(3) Whether eviction decree on the ground of commencing business for son and brother Under Section 12(1)(f) Act, 1961, in absence of essential plea/proof, is well founded?"
5. Learned counsel for the appellants/defendants 1-5 submits that there is no cogent documentary and oral evidence available on record to prove that father of defendants had sub-let the shop in question and the plaintiff is in need of it for starting business by his elder son and brother and courts below without due appreciation of the material available on record, have decreed the suit for eviction. He further submits that the judgment and decree passed by courts below on the ground of sub-letting being contrary to decision of Hon'ble Supreme Court in the case of Gajanan Dattatraya vs. Sherbanu Hosang Patel and Ors. AIR 1975 SC 2156 being illegal is not sustainable. He further submits that the suit for eviction cannot be decreed on the ground of bonafide requirement of brother. With these submissions, he prays for allowing the second appeal.
6. None for respondent 1, though served and represented.
7. Heard learned counsel for the appellants/defendants 1-5/tenants and perused the record.
8. From perusal of para 10 of impugned judgment and admitted documentary evidence available on record, it is clear that father of the defendants namely - Hukumchand in his life time had sub-let the shop in question to one Ramkumar Soni and this fact was admitted by him in reply notice (Ex. D/2) and taking this admission as well as other evidence Signature Not Verified Signed by: SWETA SAHU Signing time: 11/11/2024 5:25:05 PM 4 SA No.140/2003 available on record into consideration, Courts below have concluded that father of the defendants had sub-let the shop in question.
9. After arguments at length, learned counsel for the appellants/defendants have not been able to point out any illegality in the findings arrived at by courts below in respect of the ground of sub-letting.
10. So far as the question of bonafide need of the plaintiff's elder son and brother, is concerned, upon due consideration of the material available on record, Courts below have held that the son of plaintiff namely-Vikas and brother - Munnalal are un-employed and the shop in question is bonafidely required by them.
11. In the case of Kishore Singh vs. Satish Kumar Singhvi 2017(3) JLJ 375, a coordinate Bench of this Court has relied upon the decision of Supreme Court in the case of Ragavendra Kumar vs. Firm Prem Machinary and Company AIR 2000 SC 534, and held that the findings recorded on the question of bonafide requirement do not give rise to any substantial question of law.
12. In view of the aforesaid and upon due consideration of the material available on record, this Court does not find any illegality in the concurrent findings of facts recorded by courts below while passing the impugned judgment and decree. As such, all the aforesaid three substantial questions of law are decided against the appellants/defendants and in favour of respondent 1/plaintiff.
13. At this stage learned counsel for the appellants/defendants submits that appellants are ready to vacate the suit shop and the appellants/defendants may be granted some/reasonable time to vacate the shop in question and he prays for 6 months' time for vacating the same.
Signature Not Verified Signed by: SWETA SAHU Signing time: 11/11/2024 5:25:05 PM 5 SA No.140/200314. In view of the aforesaid, declining interference in the impugned judgment and decree passed by Courts below, this Court deems fit to grant time for vacating the tenanted shop upto 30.04.2025 on the following conditions:
(i) The appellants/defendants 1-5/tenants shall vacate the tenanted/suit shop on or before 30.04.2025.
(ii) The appellants/defendants 1-5 shall regularly pay monthly rent to the respondent 1/landlord and shall also clear all the dues, if any, including the costs of the litigation, if any, imposed by Courts below, within a period of 30 days.
(iii) The appellants/defendants 1-5 shall not part with the suit accommodation to anybody and shall not change nature of the same.
(iv) The appellants/defendants 1-5 shall furnish an undertaking with regard to the aforesaid conditions within a period of three weeks before the learned Court below/Executing Court.
(v) If the appellants/defendants 1-5 fail to comply with any of the aforesaid conditions, the respondent 1/landlord shall be free to execute the decree forthwith.
(vi) If after filing of the undertaking, the appellants/defendants 1-5/tenants do not vacate the suit shop on or before 30.04.2025 and create any obstruction, they shall be liable to pay mesne profits of Rs.500/- per day, so also contempt of judgment/order of this Court.
(vii) It is made clear that the defendants 1-5/appellants shall not be entitled for further extension of time after 30.04.2025.
15. With the aforesaid observations, this second appeal is hereby dismissed/disposed off.
16. Miscellaneous application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL) JUDGE ss Signature Not Verified Signed by: SWETA SAHU Signing time: 11/11/2024 5:25:05 PM