Madhya Pradesh High Court
Deceased Smt. Shakuntala Bai Thru. Lrs. ... vs Nirmal Mangal on 3 August, 2017
S.A. No.62/2017
03.08.2017
Shri V.K.Jain, learned senior counsel with Shri
Vaibhav Jain, learned counsel for the appellants.
Shri M.A.Bohra, learned counsel for the
respondent.
This appeal has been filed by the appellant/defendant against the judgment dated 12.01.2017 passed in Civil Appeal No.12A/2015 by the Additional District Judge, Indore by which decree of eviction dated 19.09.2015 passed by the Civil Judge has been affirmed. The plaintiff is an owner of House No.35/1, Murai Mohalla, Sanyogitaganj, Indore, which was given on rent to the defendant on a monthly rent of Rs.40/- per month. Plaintiff filed a suit for eviction on the ground that since last three years defendant is not living in the suit house premises and has locked the house. Defendant after notice filed a written statement denying averments made in the plaint.
After recording evidence by both parties learned trial court has passed the decree under Section 12(1)(i)(d)
(e) of M.P. Accommodation Control Act and directed defendant to vacate possession within a period of one month and till then pay the rent @ Rs.40/- per month. Being aggrieved by the judgment and decree the defendant preferred a First Appeal. By the judgment dated 12.01.2017 the appeal has been dismissed, hence, the present Second Appeal has been filed.
The appellant has proposed following substantial questions of law :-
(1) Whether, the respondent/plaintiff without proving his ownership, as required under Section 12(1)(e) of M.P. Accommodation Control Act, 1961, of the disputed rented property could claim eviction of admitted tenants since year 1963?
(2) Whether the respondent/plaintiff's bona fide requirement of residential tenanted property is made out under Section 12(1)(e) of M.P. Accommodation Control Act, 1961 despite he has alternate suitable residential accommodation in the same building on its second floor in his use and possession? (3) Whether the respondent/plaintiff is entitled to eviction of tenants on the ground that the rent for the years 2009 to 2012 immediately preceding the filing of suit in year 2012 is not paid by appellants/tenants without giving mandatory notice as required under Section 12(1)(a) of M.P. Accommodation Control Act, 1961?
(4) Whether the courts below have erred in law in passing eviction decree on the ground of appellants/tenant's alternate accommodation at Sanjana Park, Indore under Section 12(1)(i) of M.P. Accommodation Control Act, 1961, despite the evidence on record that Shakuntala Bai was also tenant in her independent capacity and she has not acquired any alternate accommodation in her own name at Sanjana Park, Indore or otherwise? (5) Whether the respondent/plaintiff is entitled to eviction of tenants on the ground that the rent for the years 2009 to 2012 immediately preceding the filing of suit in year 2012 is not paid by appellants/tenants, despite plaintiff's his own evidence that the rent was paid for this tenure and he issued rent receipts for the same?
(6) Whether the courts below erred in law in giving finding contrary to evidence on record that the rented/suit property was closed and not used by appellants/tenants for a period of three years immediately preceding the filing of suit, despite there being electricity bills, telephone landline bills/posts received on the suit property (Exhibits D-7 to D-14) and evidence of defendants on record?
(7) Whether, the suit is not maintainable for the want of non-joinder of necessary parties of all the joint tenants as defendants and non-joinder of necessary parties of all the interest holders/legal heirs of plaintiff's father being landlord? (8) Whether, the learned Judge of the first appellate court has committed an error of law in affirming the judgment of the trial court without performing the duties of the appellate court as laid down by the Hon'ble Supreme Court in the case of Santosh Hajari v. Purushottam Tiwari reported in AIR 2001 SC 695?"
I have heard senior counsel Shri V.K.Jain with Shri Vaibhav Jain, counsel for the appellants. At the outset Shri V.K.Jain,Advocate submits that since the tenancy is very old, therefore, appellant may be given one year's time to vacate the premises. Shri M.A.Bohra,Advocate has opposed the prayer and submits that appellant be directed to pay the rent @ Rs.400/- per month till vacation of the premises. Trial court as well as appellate court is directed to pay mesne profit @ Rs.40/- per month as claimed by plaintiff. There is no cross-appeal, therefore, the said amount cannot be enhanced in this appeal. The appeal is dismissed with the following direction :- (1) The appellant shall vacate the suit house by 31st July, 2018.
(2) The appellant shall deposit the entire rent amount @ Rs.40/- per month payable upto 31st July, 2018 in one installment within a period of one month and shall file written undertaking that the appellant shall handover the possession of the suit premises to the respondent on 31st July,2018.
C.c. as per rules.
(Vivek Rusia)
ns Judge