Madhya Pradesh High Court
Seth Manak Chand vs Nemi Chand on 8 September, 2022
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. No. 151/2002
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 8TH OF SEPTEMBER, 2022
SECOND APPEAL No. 151 of 2002
1. SETH MANAKCHAND (DEAD) S/O SETH
JUMMALAL, AGED ABOUT 62 YEARS,
OCCUPATION: BUSINESS R/O BADA BAZAR
CHHAVNI SEHORE (MADHYA PRADESH)
THROUGH HIS LRs
1(A). SMT. SHAKUNTALA DEVI W/O LATE SHRI
MANAK CHAND, AGED ABOUT 72 YEARS
RESIDENT OF BADA BAZAR, CHAWANI,
DISTRICT-SEHORE PARASIYA (MADHYA
PRADESH)
1(B). VINOD KUMAR RUTHIYA, S/O LATE SHRI
MANAK CHAND, AGED ABOUT 57 YEARS,
RESIDENT OF BADA BAZAR, CHAWANI,
DISTRICT-SEHORE, (MADHYA PRADESH)
1(B)(i) SMT. POONAM RUTHIYA, WD/O LATE VINOD
RUTHIYA, R/O BADA BAZAR, CHAWANI,
DISTRICT-SEHORE (MADHYA PRADESH)
1 (B)(ii) KAPIL AGRAWAL S/O LATE VINOD RUTHIYA,
R/O BADA BAZAR, CHAWANI, DISTRICT-
SEHORE, (MADHYA PRADESH)
1(C) VINAY RUTHIYA S/O LATE SHRI MANAK
CHAND, AGED ABOUT 52 YEARS, R/O BADA
BAZAR, CHAWANI, DISTRICT-SHEORE,
(MADHYA PRADESH)
1(D) VIVEK RUTHIYA S/O LATE SHRI MANAK
CHAND, AGED ABOUT 50 YEARS, R/O BADA
BAZAR, CHAWANI, DISTRICT-SEHORE,
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI SANJAY AGARWAL-SENIOUR
ADVOCATE WITH SHRI PRAMOD SAHU-
ADVOCATE)
2 S.A. No. 151/2002
AND
1. NEMICHAND, (DEAD) S/O MANNULAL, AGED
60 YEARS, OCCUPATION-BUSINESS R/O
KULDIP SINGH SETHI KA BAGICHA, STATION
ROAD-SEHORE, (MADHYA PRADESH)
THROUGH HIS LEGAL REPRESENTATIVES
1(A). SMT. HIRAMANI, SD/O NEMICHAND, AGED
ABOUT 62 YEARS, R/O KULDI SINGH SETHI
KA BAGICHA, STATINO ROAD, SEHORE,
(MADHYA PRADESH)
1(B). SHRI RAJESH, S/O NEMICHAND, AGED ABOUT
44 YEARS, R/O KULDI SINGH SETHI KA
BAGICHA, STATINO ROAD, SEHORE,
(MADHYA PRADESH)
1(C). SHRI NEERAJ, S/O NEMICHAND AGED ABOUT
40 YEARS, R/O KULDI SINGH SETHI KA
BAGICHA, STATINO ROAD, SEHORE,
(MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
...................................................................................................................................................................
This appeal coming on for final hearing this day, Court passed the
following:
JUDGMENT
This second appeal has been filed by legal representatives of original plaintiff-Seth Manakchand challenging the judgment & decree dated 29.11.2001 passed by learned 3rd Additional District Judge, Sehore in Civil Appeal No. 49-A/2001 reversing the judgment & decree dated 19.08.1998 passed by learned 2nd Civil Judge Class-2, Sehore in Civil Suit No. 113-A/94 whereby suit filed by plaintiff-Seth Manakchand was 3 S.A. No. 151/2002 decreed on the grounds under Section 12(1)(d),(g)&(h) of the M.P. Accommodation Control Act, 1961 (in short "the Act").
2. In short the facts are that the plaintiff Seth Manakchand instituted a suit for eviction on the grounds available under Section 12(1)(d),(g)&(h) of the Act with the allegations that the original defendant-Nemichand (dead) through LRs is tenant in the suit premises on rent of Rs. 22/- per month, which he has not paid despite making several demands. It is alleged that the defendant is not using the premises without reasonable cause and has kept it closed for a continuous period of six months immediately preceding the date of the filing of the suit. The plaintiff alleged that the accommodation has become unsafe for human habitation and is required bonafide for carrying out repairs and that the accommodation is in dilapidated condition which is required for re- building which cannot be carried out without it being vacated. On inter alia allegations, the suit was prayed to be decreed.
3. The defendant appeared and filed written statement denying the plaint allegations and contended that no arrears of rent are there and he took the premises for godown purpose and he is using the same regularly. The accommodation is in a good condition and is not unsafe for human habitation and the plaintiff does not require the same for re-building. On inter contentions, the suit was prayed to be dismissed.
4. On the basis of pleadings learned trial Court framed four issues and recorded evidence led by the parties and vide judgment & decree dated 19.08.1998 learned trial Court considered entire material available on record and decreed the suit on the grounds under Section 12(1)(d)(g)&(h) of the Act.
4 S.A. No. 151/20025. Upon appeal filed by original defendant-tenant, learned first appellate Court vide judgment & decree dated 29.11.2001 allowed the appeal and by reversing the judgment & decree of trial Court, dismissed the suit in its entirety.
6. This second appeal was admitted on 07.02.2005 on the following substantial question of law:-
i. Whether a decree of eviction against the tenant may be passed even though the same is not claimed on the ground of arrears of rent in view of the ratio of the case of Jamnalal and others vs. Radheshyam (2000 (2) MPLJ 385) ?
Thereafter, at the time of final hearing on 29.06.2022, this Court found that following substantial questions of law are also involved :-
ii. Whether learned lower appellate Court was right in condoning delay in making payment of rent without there being any application to that effect ?
iii. Whether learned lower appellate Court has erred in reversing the decree of eviction passed by trial Court on the ground under S. 12(1)
(d),(g)&(h) of the M.P. Accommodation Control Act, 1961 ?
7. Learned senior counsel for the appellant/plaintiff submits that the learned first appellate Court has erred in condoning the delay in making payment of rent without there being any application filed by the defendant to that effect and as he has not paid monthly rent regularly, therefore, the plaintiff is entitled for decree of eviction on the ground under Section 12(1)(a) of the Act even though it has not been claimed in the suit. He further submits that learned first appellate Court has erred in reversing the judgment & decree of eviction passed by trial Court on the 5 S.A. No. 151/2002 grounds under Section 12(1)(d)(g)&(h) of the Act. By placing reliance on the decision of the Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs (2001) 3 SCC 179, learned counsel for the appellants submits that in the facts and circumstances of the case, the plaintiffs/appellants are entitled for decree of eviction. By pressing the I.A. No. 15832/2017 u/s 13(6) of the Act, learned counsel submits that as per report of Nazir, the defendant has not deposited rent after 13.2.2008, consequently, his defence against eviction is liable to be struck out.
8. Despite service of notice even after framing of new substantial questions of law on 29.6.2022, no one appeared on behalf of the respondents.
9. Heard learned senior counsel and perused the record.
10. Considered I.A. No. 15832/2017 u/s 13(6) of the Act. In absence of any counter affidavit and looking to the overall conduct of the defendant, this Court is constrained to strike out defence of the defendant.
Substantial Question of Law no. (i) and (ii):
11. From perusal of plaint averments it is clear that the plaintiff has not claimed decree of eviction on the ground under section 12(1)(a) of the Act and there is no foundation in the plaint with regard to ground of eviction under section 12(1)(a) of the Act to the effect that the plaintiff made demand of arrears of rent and the defendant did not pay. Even, by way of regd. notice dtd. 25.4.1994 (Ex. P/2) the plaintiff has not made any demand of arrears of rent but notice has been issued making averments relating to grounds of eviction under section 12(1)(d),(g) and
(h) of the Act. Section 12(1)(a) of the Act is reproduced as under :
6 S.A. No. 151/2002"12(1) Notwithstanding anything to the contrary contained in any other law or con- tract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds namely :-
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of de-
mand for the arrears of rent has been served on him by the landlord in the prescribed manner."
12. From bare perusal of provision of section 12(1)(a) of the Act, it is clear that there should be demand of arrears of rent in the notice itself, in absence of which no cause of action can be said to have been accrued to the plaintiff/landlord to seek eviction on the ground under section 12(1)
(a) of the Act. The ratio of the case of Jamnalal Vs. Radheshyam (2000)4SCC380 =2000(2)MPLJ385 (supra) is altogether different and is not applicable to the present case. Accordingly, it is held that the plaintiff is not entitled to decree of eviction on the ground under section 12(1)(a) of the Act, because no foundation is there in the plaint for seeking decree of eviction on the ground of arrears of rent.
13. It is trite law that the delay in making deposit of rent can be condoned by the Court including the appellate Court. At the same time it is also settled that the same can be condoned only upon filing application making sufficient ground for condonation of delay. In the case of Sayeda Akhtar Vs. Abdul Ahad (2003)7SCC52 Supreme Court has in para 4 held that "A bare perusal of the aforementioned provision would clearly go to show that although the court has the jurisdiction to extend the time for depositing the rent both for the period during which the tenant had defaulted as well as the period subsequent thereto but therefor an application is to be made. The provision requiring an application to be made is indisputably necessary for the purpose of showing sufficient cause as to why such deposit could not be made within the time granted by the Court. The court does not extend time or condone the delay on mere sympathy. It will exercise its discretion judicially and on a finding of existence As such it is held that learned first appellate Court has of sufficient cause."
committed error in condoning the delay in making payment of rent. But still the landlord/appellants are not entitled to decree of eviction unless they are able to establish one or more grounds of eviction.
Substantial Question of Law no. (iii):
7 S.A. No. 151/200214. Perusal of the judgment & decree passed by learned trial Court shows that learned trial Court has found that the defendant has not used the premises without reasonable cause for a continuous period of more than six months immediately preceding the date of suit and has kept it closed. It is pertinent to mention here that before instituting the suit, the plaintiff issued notice dated 25.04.1994 (Ex.D/2) stating clearly non-user of the shop by the defendant but despite receipt of notice, the defendant did not give reply and after a period of more than six months the plaintiff instituted the suit on 30.10.1994.
15. First of all, as the plaintiff did not reply the notice, therefore, as per the law laid down by this Court in the case of Dukan Ramchandra Pooran Chand Bhagat Sarraf, Vidisha Vs. Karan Singh 2014(1) MPWN 30 it can be presumed that the defendant has falsely prepared a story denying the contents of the plaint. Considering the overall conduct of the defendant, learned trial Court had rightly held that the defendant did not use the tenanted premises for a period of more than six months immediately preceding the date of suit. Apparently, on the basis of surmises and conjectures and treating the tenanted shop to have been given for godown purpose, learned first appellate Court has erred in reversing the findings with regard to non-user and further erred in dismissing the suit, whereas the plaintiff is entitled for decree of eviction against the defendant on the ground under Section 12(1)(d) of the Act.
16. Learned trial Court after taking into consideration oral evidence of the parties had recorded specific finding that the premises in question is in a dilapidated condition and it is not safe for use of the human habitation. This fact has been admitted even by defendant and his witness and on that basis learned first appellate Court has in para 10.2 and 10.3 of its judgment found and observed as under :-
8 S.A. No. 151/2002" 10.2 वादी और उसके साककयो ने जो कथन कदए उनसे के वल यही पाया जाता है कक वादगसत भवन की दीवार या दरवाजे उखड़े है व टूटे हुए है, ककनतु इन साककयो के कथनो से यह पमाकणत नही होता है कक वादगसत भवन जीणर-कीणर हालत मे है या ऐसी हालत मे है कजसके कारण वादगसत भवन मानव कनवास के कलए ु हो गया हैA इस कबंदु पर ककसी इजं ीकनयर या भवन कवशेषज के कथन नही करवाये गये असरु ककत और अनापयक हैA यह भी पमाकणत नही है कक वादगसत भवन की मरममत करने हेतु पकतवादी दारा वादगसत भवन ररक ककया जाना आवशयक है ऐसी साकय के अभाव मे वादी धारा-12(1)(जी) अकधकनयम के अधीन कनषकास~न का जय पत पाने का अकधकारी नही हैA 10.3 यकद यह मान भी कलया जाए कक वादगसत मकान की एक दीवार टूट गई है और चद~दरे टूट गई है तो इसका यह मतलब नही है कक वादगसत मकान मानव कनवास के कलए उपयक ु नही है या असरु ककत हो गया है। यह भी नही कहा जा सकता कक कबना पकतवादी दारा मकान ररक ककये मकान की मरममत नही हो सकती।
17. In view of the aforesaid finding recorded by learned first appellate Court, and in my considered opinion there was no reason available for learned first appellate Court to reverse the judgment & decree of trial Court on the ground under Section 12(1)(g) of the Act. As such, it is held that the learned trial Court had rightly found the plaintiff to be entitled for decree of eviction on the ground under S. 12(1)(g) of the Act.
18. Similarly, by placing the map and estimate (Ex. P/11 & P/12), the plaintiff has proved that he is required the tenanted premises for construction/re-building and he is having sufficient funds with him for raising construction, regarding which the learned first appellate Court has also recorded following findings in para 11.1 & 11.2 of its judgement :-
" 11.1 कवचारणीय प'न के संबंध मे वादी, वा. सा. -1 ने अपने कथन मे बताया है कक वह वादगसत भवन का नव कनमारण कराना चाहता है कजसके कलए उसने मानकचत प. पी. -11 तथा सटीमेट प. पी.- 12 बनवाया ू मे आवेदन पत कदए हैA वादी ने यह भी कथन ककया है कक उसके और कनमारण के कलए नगर पाकलका तथा नजल पास नव कनमारण के कलए पयारप पंजू ी हैA समथरन मे राषटीय बचत पत प. पी. -13 लगायत प. पी. -30 ररलायी ककये गयेA पकतवादी पकत. सा. -1 ने उक साकयका खंडन ककया हैA 9 S.A. No. 151/2002 11.2 नव कनमारण के कलए वादी के पास पयारप पंजू ी है इस प 'न को पकतवादी अकधवका दारा बहस के दौरान सवीकार ककया गया कक वादी के पास यकद वह मकान का नव कनमारण करना चाहे तो पयारप प ंजू ी हैA
19. Rent note (Ex. P/1) shows that tenancy started in samvat 2021 i.e. in the year 1964 and suit was filed in the year 1994. Now, period of 58 years has already elapsed, therefore, it can also be presumed that the house in question is in dilapidated condition.
20. In my opinion, even in view of the aforesaid findings recorded by learned first appellate Court, there was no justifiable reason to reverse the judgement and decree of learned trial Court. As such, it is held that the learned trial Court had rightly found the plaintiff to be entitled for decree of eviction on the ground under S. 12(1)(h) of the Act also.
21. Upon making comparative study of the judgement and decree passed by learned trial Court and by learned first appellate Court, it is clear that learned first appellate Court has not followed the decision of Supreme Court in the case of Santosh Hazari (2001)3SCC179 (supra) and even without reversing the findings and reasoning recorded by learned trial Court, learned first appellate Court has reversed the judgement and decree of trial Court, which has vitiated the impugned judgement and decree passed by learned first appellate Court.
22. In view of the aforesaid discussion the second appeal succeeds and by setting aside the judgment & decree passed by learned first appellate Court, the judgement and decree of learned trial are restored and the suit stands decreed. However, no order as to costs.
(DWARKA DHISH BANSAL) JUDGE 10 S.A. No. 151/2002 Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2022.09.14 11:45:11 +05'30'