Madhya Pradesh High Court
The Narmada Valley Refrigerated ... vs M/S Chandanmal Lunkad & Company on 20 April, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
FIRST APPEAL NO. 982 OF 2010
BETWEEN:-
THE NARMADA VALLEY
REFRIGERATED PROJECT PVT.
LTD. TH. K.K. VARGHESE,THE
GERNRAL MANAGER & THE
PRINCIPAL OFFICER HAMDIYA
ROAD, BHOPAL (MADHYA
PRADESH)
...................APPELLANT
(BY SHRI RAVISH AGRAWAL SENIOR ADVOCATE ALONG WITH
SHRI K.S JHA ADVOCATE)
AND
1.M/S CHANDANMAL
LUNKAD & COMPANY TH.
PARTNERS ALPANA
TALKIES, HAMIDIYA
ROAD,BHOPAL (MADHYA
PRADESH)
2.CHANDANMAL SAGARMAL
LUNKAD 1-6/12 ARERA
COLONY BHOPAL (MADHYA
PRADESH)
3.DILIP C. LUNKAD S/O
CHANDANMAL I-6/12, ARERA
COLONY, BHOPAL (MADHYA
PRADESH)
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 4/24/2023
6:43:42 PM
2
4.AJIJUDDIN S/O
JAMILUDDIN H.NO. 3,
FARHATPURA, PUNJABI
COLONY, JINSI, BHOPAL
(MADHYA PRADESH)
5.SMT. FARINA BEGUM W/O
AJIJUDDIN H.NO.3,
FARHATPURA PUNJABI
COLONY, JINSI, BHOPAL
(MADHYA PRADESH)
6.SHARIFUDDIN S/O
JAMILUDDIN H.NO.3
FARHATPURA, PUNJABI
COLONY JINSI BHOPAL
(MADHYA PRADESH)
7.MST. AASMA AJEEJ D/O
AJIJUDDIN H.NO.3,
FARHATPURA PUNJABI
COLONY, JINSI, BHOPAL
(MADHYA PRADESH)
8.SECRETARY INDIAN
COFFEE WORKERS
COOPERATIVE SOCIETY
LTD CANTONMENT,
JABALPUR (MADHYA
PRADESH)
...............RESPONDENTS
(BY SHRI NADEEM AKHTER SHAMSI - ADVOCATE)
-----------------------------------------------------------------------------------------
Reserved on: 12-04-2023
Pronounced on: 20-04-2022
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This appeal having been heard and reserved for Judgment coming
on for pronouncement this day, the Court pronounced the following:
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 4/24/2023
6:43:42 PM
3
JUDGMENT
This first appeal has been preferred by the appellant/plaintiff challenging the judgment and decree dated 02.11.2010 passed by 5th Additional District Judge, Bhopal in Civil Suit No.398-A/2008, whereby suit filed by the appellant/plaintiff on the grounds available under Section 12(1)(a),(b),(c),(d),(f),(h),(m)&(n) of the M.P. Accommodation Control Act, 1961 (in short "the Act"), has been dismissed on all the grounds.
2. The plaintiff instituted the suit with the following averments :-
(i) It is alleged in the plaint that the plaintiff is owner and landlord of the premises formerly known as Baikunth Theatre now Alpana Theatre with the Cinema building & open land situated at Hamidia Road, Bhopal.
The defendant no. 1(a) and (b) were the plaintiff's tenants from the year 1961, who were running the Cinema business in the name of defendant no.1-firm. The lease of the defendant no.1 was monthly and renewed lastly on 5.11.2005 for 5 years with the agreement of increase of rent of Rs.4,500/- to Rs.8,000/-. It is alleged that the defendant no. 1(a) and (b) have contrary to the agreement, made construction of a double storied building over 4000 sq.ft. instead of 2000 sq.ft. which has materially altered the tenanted accommodation, making liable the defendant to be evicted under section 12(1)(m) of the Act.
(ii) The defendant no. 1(a) and (b) sublet part of the property to Indian Coffee Workers Cooperative Society, Jabalpur on 29.1.1997 for a period of 5 years expiring on 31.1.2002 with right to renew for another 15 years. It is also alleged that the tenancy of the defendants 1(a) & (b) being only upto 4.11.2000, the sub lease was without jurisdiction and without knowledge of the plaintiff and they wrongly misrepresented themselves to be permanent lessee. In reply dtd. 15.3.2003 to the plaintiff's notice Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 4 dtd. 6.2.2003, the defendant 1(a)&(b) intimated that they have retired from the firm but despite making request, names of new partners were not disclosed. It is also alleged that the defendants 1(a)&(b) have parted with possession of the property to defendants 2-5 without intimation, knowledge and consent of the plaintiff, which has made liable the defendants to be evicted under section 12(1)(b) of the Act.
(iii) It is also alleged that the defendants 1-3 despite service of notice of demand did not pay the arrears of rent within time, however the plaintiff restricted its claim of arrears of rent up to 2 lac, vague reply (dt.07.11.2006) of which was given by the defendants 1(a)&(b) and defendants 2-3 separately.
(iv) It is also alleged that the defendants 2-5 without written permission and consent of the plaintiff, applied for permission for erection and re- erection of the building showing themselves to be owners, and modified the cinema hall, which act of the defendants, has adversely and substantially affected the interest of the plaintiff, making liable the defendants to be evicted under section 12(1(c) the Act. It is alleged that the defendants 2-5 have demolished the front porch and boundary wall by Bulldozer and the plaintiff has been denied access in the suit premises, making the defendants liable to be evicted under section 12(1)(m) of the Act.
(v) It is also alleged that the open area of the leased property is 20000 sq.ft. which is required by the plaintiff for construction of a building of commercial complex and the plaintiff is entitled for decree under section 12(1)(n) of the Act. It is also alleged that tenanted premises is required for building or rebuilding which cannot be carried out without the accommodation being vacated and the plaintiff has necessary funds, Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 5 regarding which the plaintiff has prepared plan and submitted it to the Municipal Corporation, which is under process. As such the plaintiff is entitled for decree under section 12(1)(h) of the Act.
(vi) It is also alleged that at present the plaintiff has no business in hand therefore, it bonafide requires the cinema theatre for starting the business of exhibition of films and there is no other alternative accommodation available with the plaintiff, which shall be done by the plaintiff only after installation of machinery along with other necessary fittings and after obtaining necessary license. With such allegations the plaintiff claimed decree of eviction under section 12(1)(f) of the Act.
(vii) The plaintiff has alleged that the accommodation let out to defendant no.1(a) & (b) has not been used by them having left the place and stopped doing business of Cinema for a continuous period of six months immediately preceding the date of filing of suit and despite issuance of notice on 4.9.2006, they have not replied, therefore, the plaintiff is also entitled for decree of eviction under section 12(1)(d) of the Act.
(viii) In addition to decree of eviction on the aforesaid grounds of section 12(1) of the Act, the plaintiff also prayed for decree of mesne profits of Rs.1,50,000/- p.m.
3. The defendants 1(a)&(b) appeared and filed written statement denying the plaint allegations and contended that K.K. Varghese has no right to file suit on behalf of the plaintiff company and plaintiff has to prove its title. The defendants have already retired from the partnership firm and the firm/company is being run by the other defendants, despite this the defendants 1(a)&(b) have been made party wrongly, who have not sublet any part of the tenanted premises to Indian Coffee Workers Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 6 Cooperative Society, Jabalpur. The defendant 1 firm was inducted as tenant, who is still tenant and no rent is due on the defendants, hence the plaintiff is not entitled for any relief and the suit deserves to be dismissed.
4. The defendants 1 and 2-5 also filed joint written statement reiterating the same contentions which have been made by the defendant no. 1(a)& (b) and claimed themselves to be partners of the defendant 1- firm after retirement of defendants 1(a)&(b) and being tenants are running Cinema business. The defendants have got addition and alteration done in the tenanted premises after notice to the plaintiff, which is not adverse to the interests of the plaintiff. The plaintiff is not in need of the tenanted premises for Cinema business or for construction of commercial complex and they have not sub-let the premises and no arrears of rent is there against them. The defendants have also not encroached on any part and the plaintiff is not in need of the accommodation for re-building and he has not made preparations for that purpose. As such the plaintiff is not entitled for any relief against the defendants and the suit deserves to be dismissed.
5. On the basis of pleadings of the parties learned trial Court framed as many as 15 issues and recorded evidence of the parties. The plaintiff examined K.K.Varghese (PW1), Anoop Nair (PW2), O.P. Chaurasiya (PW3) and produced documentary evidence (Ex.P/1 to P/24), whereas the defendants examined Ajijuddin (DW1), Dilip Lunkad (DW2) and Malti Mishra (DW3) and produced documentary evidence (Ex.D/1 to D/31). After hearing arguments of the parties, learned trial Court dismissed the suit on all the grounds of eviction vide impugned judgment and decree dtd. 02.11.2010.
Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 76. By the impugned judgment and decree, learned trial Court has recorded following findings :-
(i) Suit premises was let out to defendant-firm through partners defendants 1(a) & (b) and not individually to defendants 1(a) & (b) and after their retirement, the defendants 2-5 are tenants of plaintiff as partners of defendant firm, therefore, there is no sub-letting.
(ii) Defendants 1(a) & (b) did not sub-let to Coffee House, because clause 7 and 8 of Ex. D/1 and D/2 permit the tenant to sub-let for running restaurant.
(iii) It is not proved that the defendants constructed two storied building over 4000 sq.ft. and no illegal construction is there because in paragraph 29 of his statement, K.K. Varghese (PW1) has admitted that construction was in the knowledge of plaintiff and was never objected.
(iv) The defendants have renovated the suit accommodation without plaintiff's written permission but the same is not detrimental to the interest of the plaintiff.
(v) Plaintiff has failed to prove that it has necessary machinery and permission for running Cinema hall in a modernized way.
(vi) Plaintiff has failed to prove availability of funds, sanction and map for reconstruction and there are other 28 shops in possession of other tenants but no proceeding for eviction against any of them has been filed.
(vii) No arrears of rent is there, as in paragraph 33 of his statement, K.K.Varghese (PW1) has admitted its liability to deposit property tax, which was deposited by defendants and remaining amount of rent was deposited under orders of trial Court, therefore, plaintiff is not entitled for decree of eviction under section 12(1)(a) of the Act.
Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 8(viii) The defendants are still running Cinema business in the tenanted premises, hence the plaintiff is not entitled for decree of eviction under section 12(1)(d) of the Act.
(ix) There is no denial of title, because in paragraph 15 of his statement, Dilip Lunkad (DW2) has claimed himself to be owner of Cinema hall and not of building of Cinema hall and in written statement he has admitted himself to be tenant of the plaintiff.
7. Learned senior counsel appearing for the appellant/plaintiff submits that there is no dispute about relationship of landlord and tenant in between the plaintiff and defendant-firm M/s Chandanmal Lunkad & Company, but in spite of this, the defendant is denying plaintiff's title and did not pay monthly agreed rent of Rs.8,000/- p.m. despite making several demands and finally despite issuance of notice of demand. He also submits that despite taking the premises on rent and despite making payment of rent to the plaintiff, the defendant has denied title of the plaintiff, which is sufficient to decree the suit for eviction.
He further submits that the premises was given to M/s Chandanmal Lunkad & Company through partners Chandanmal & Sagarmal but thereafter, the existing partners of the firm got retirement from the partnership and other partners came in the firm one after another, which is a clear cut case of sub-tenancy. As regards the case of bonafide need, he submits that the defendant firm was given the premises for the Cinema purpose and the plaintiff also wants to do the same business, therefore, there was no hurdle in granting decree of eviction on the ground of bonafide requirement.
He further submits that the defendant has made several addition and alternations in the premises and has changed nature of property, but Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 9 learned Court below only on the ground that the construction made by the defendants has not diminished the value of the property, illegally refused to pass decree of eviction.
In support of his submissions, learned senior counsel placed reliance on the decisions of Supreme Court in the case of Vinaykisohre Punamchand Mundhada and Another Vs. Shri Bhumi Kalpataru and Others (2010)9 SCC 129; Purushottam & Co. Vs. Manilal & Sons AIR 1961 SC 325; Parvinder Singh Vs. Renu Gautam & Others (2004)4 SCC 794; A.Mahalaxmi Vs. Bala Venkatram (Dead) through LR & others (2020)2 SCC 531; Waman Shriniwas Kini Vs. Ratilal Bhagwandas & Company AIR 1959 SC 689; Shantilal Rampuria and others Vs. Vega Trading Corporation and others (1989)3 SCC 552; Arm Group Enterprises Ltd. Vs. Waldorf Restaurant and Others (2003) 6 SCC 423; Shalimar Tar Products Ltd. Vs. H.C. Sharma and others AIR 1988 SC 145; Pulin Behari Lal Vs. Mahadeb Dutta (1993)1 SCC 629; Ashok Kumar Mishra and another Vs. Goverdhan Bhai (D) and another AIR 2017 SC 1819; and State of Orissa V. J.P Lath (1989)4 SCC 38.
8. Learned counsel appearing for the respondents/defendants submits that the defendant has paid rent timely and according to the demand made by the plaintiff. He submits that because the partnership firm M/s Chandanmal Lunkad & Company was given the premises on rent, therefore, upon retirement of existing partners of the firm, other partners entered and are doing the same business being partners of partnership firm, therefore, there cannot be any sub-tenancy.
He submits that the defendant has never denied title of the plaintiff and the plaintiff is not in need of the accommodation and as per terms and conditions mentioned in the lease deed, he cannot seek the Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 10 accommodation for the purpose of starting Cinema business or for construction of commercial complex. He also submits that according to the requirement, addition and alteration was done in the tenanted premises, which has increased the value. Accordingly, he submits that no decree of eviction can be passed on any of the grounds available under Section 12(1) of the Act.
9. Heard learned counsel for the parties and perused the record.
10. Following point for determination is arising in the present appeal for consideration of this Court :
Whether on the facts and in the circumstances of the case, learned Court below has erred in dismissing the suit for eviction on the grounds under section 12(1)(a),(b),(c),(d),(f),(h),(k),(m) and (n) of the Act ?
11. The plaintiff has based its case on the documents (Ex.P/19 and P/20). For ready reference, their relevant part is quoted as under :-
Ex. P/19, which is an agreement (lease deed) dtd. 14.03.1939 (between the Government of Bhopal AND the Nerbudda Valley Refrigerated Products Company Ltd.) AN AGREEMENT made the 14th day of March, One thousand nine hundred and thirty nine BETWEEN Alimartabat Aminul Mulk, Wala Qadr, Salamuddin Khan, B.A.LL.B., Minister-in-charge Commerce and Industries, for and on behalf of the Government of Bhopal (hereinafter called "the State" which expression shall where the context so admits or requires include His Highness the Nawab of Bhopal and his successors and the Government of Bhopal for the time being) of the one part and The Nerbudda Valley Refrigerated Products Company Ltd., a Company incorporated in Bhopal under the Bhopal Companies Act and having its registered office in Bhopal (hereinafter call "the Company" which expression shall where the context so admits or requires include its successors and assigns) of the other part WHEREAS the Company is desirous of developing trade in refrigerated foodstuffs and industries and proposes as its immediate object erection in Bhopal of factories of the Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 11 most up-to-date design for manufacturing Ice-cream and Dry-Ice and other frozen and refrigerated food-stuffs, articles, commodities or goods of all kinds or any of them AND WHEREAS in consideration of such development which will be of benefit to the dairying industry of State and of a sum of Rs.25,000 paid by the Company to the State before the execution of these presents the receipts whereof the State both hereby admit and acknowledge the State has agreed to grant to the Company the following concessions upon the following terms: NOW THESE PRESENTS WITNESSES and it is hereby agreed by and between the parties hereto as following:-
1. For the consideration aforesaid the State agrees to put the Company in possession of an area of not less than 12 acres of land to be marked out by the Company adjacent to and including the existing Bhopal Dak Bungalow as soon as possible after the Company asks the State in writing for such possession. The land will be held on lease by the Company at a ground rent of Rupee one per acre per annum for the first thirty years, such ground rent to be in lieu of land assessment or any other land revenue or tax and the lease shall contain a covenant for renewal in favour of the Company upon the same terms except as to rent but including the covenant for renewal for further periods of thirty years provided never-the-less that the ground rent reserved under any such renewed lease shall not exceed the current highest unimproved rate assessed for land in the neighbourhood at the date of each renewal.
Ex. P/20, which is a deed dtd. 14.12.1999 of renewal of lease (between the Governor of Madhya Pradesh AND the Nerbudda Valley Refrigerated Products Company (P) Ltd.) This DEED OF RENEWAL OF LEASE is made this 14 th day of December 1999 between the Governor of Madhya Pradesh acting through the Collector (hereinafter called 'the lessor' which expression shall where the context so admits, include his successor-in-office) of the one Part AND M/S The Nerbudda Valley Refrigerated Products Company (P) Ltd. Hamidia Road, Bhopal through its Managing Director, Mr. Jagvinder Singh, S/o Mr. Jaspal Singh, an existing company incorporated under the Indian Companies Act, 1956 and having Registered Office at Hamidia Road, Bhopal in the state of Madhya Pradesh (hereinafter called the 'Lessee' which expression shall where the context so admits, include his successors, assignees, transferees) of the other Part.
Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 12WHEREAS under an agreement dated 14th March, 1939 entered into by and between the erstwhile state of Bhopal Department of Commerce and Industries (succeeded by the present state of Madhya Pradesh) the lessor and The Nerbudda Valley Refrigerated Products Co. (P) Ltd. the lessee, the lessor had agreed to grant to the lessee a lease of a piece of land comprising of an area measuring approximately 12 acres, situated at Hamidia Road, Bhopal more particularly described in schedule thereunder attached, for a term of 30 years commencing from 14th day of March, 1939 and ending on 13th March 1969 for the purpose of developing trade in refrigerated food stuffs and industries with the immediate objects of erecting the factories of the most up-to-date design for manufacture of Ice-cream and dry ice and other industries, and buildings, at a ground rent of Rs.1/- per acre per annum for the first 30 years of the lease.
AND WHEREAS SUBSEQUENTLY OUT OF THE SAID 12 ACRES of land the lessee had voluntarily transferred 8.18 acres of land to the lessor (the erstwhile State of Bhopal) leaving with the lessee 3.82 acres of land.
AND WHEREAS the said lease expired on 13th March, 1969 and whereas dispute arose between the parties for renewal of lease which at last was referred to the Arbitration. The Government of M.P. by its Memo No.2738/162/VII/N-2/B/84 dtd. 24.5.84 appointed Shri R.R. Agarwal as the Arbitrator and the Lessee Company. The Nerbudda Valley Refrigerated Products Company (P) Ltd., Bhopal appointed Shri B.S. Banthia Advocate as Arbitrator by their letter dated 24.3.1984.
WHEREAS THE SAID Arbitrators unanimously delivered an AWARD on 3rd July, 1985 directing the parties to execute the Lease Deed for 99 years with effect from 14th March, 1969 with further direction that the Deed for Renewal of the lease, shall contain a covenant for Renewal in favor of the lessee including an Arbitration Clause therein with the condition that the ground rent, with effect from 14th March, 1969 shall be Rs. 50.00 per acre per annum which shall be liable to be increased on the expiry of 30 years, from the date of execution of the Deed of Renewal of lease and also at subsequent interval of 30 years, provided that the increase on each occasion shall not exceed 1/4 (one-fourth) of the rent fixed for the preceding 30 years.
AND WHEREAS on filing of the Award in the Court of II Addl. Judge to the Court of District Judge, Bhopal the Court was pleased to pass decree Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 13 dated 10.09.87 in Arbitration Case No.24-U/85 captioned The Nerbudda Valley Refrigerated Products Co., (P) Ltd. Bhopal V/S The State of M.P. in terms of the Award excepting the term of lease which was altered from 99 to 30 years in the first instance and thereafter to be renewed for each period of 30 years.
AND WHEREAS the appeal preferred by the lessor-The State of M.P. against the lessee The N.V.R.Product Co., (P) Ltd. challenging the Decree dated 10.09.87, The Hon'ble High Court of M.P. at Jabalpur dismissed the appeal No.M.S.A. No.166/88 vide order dated 18.7.88 and thus the Decree dated 10.9.87 became final.
AND WHEREAS keeping in view the Award given by the Arbitrators on 3rd July, 1985 the decisions of the Addl. Judge to the court of District Judge, Bhopal and the High Court dtd.10.9.1987 and 18.7.1988 respectively and the mutual consent of the parties, this DEED of RENEWAL OF LEASE was executed for a period of 30 years commencing from 14th day of March 1969 and ending on the 13th day of March 1999 for holding the same, subject to the terms and conditions hereinafter specified.
NOW THEREFORE this deed witnesses and it is hereby agreed and declared as under:-
1. In consideration of the rent herein reserved and of the covenants on the part of the lessee hereinafter contained, the lessor hereby demises to the lessee the said land for a period of 30 years commencing from the 14th March 1999, and ending on the 13th March, 2029 for holding the same for purposes mentioned in the original lease deed subject to the Award given by the Arbitrators.
2. The Lessee shall pay a sum of Rs.51,211.00 (Rupees Fifty one thousand two hundred eleven only) per annum as lease rent for the period from 14th March, 1999 to 13th March 2029.
3. The Lessee will have a lease for 3.13 acres.
4. The lease rent shall be liable to be increased on the expiry of the period of renewal of lease and also at subsequent intervals of 30 years provided that the increase on each occasion shall not exceed one quarter of the lease rent fixed under clause (2), Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 14
5. On the expiry of the lease period, the lessee shall have a right to get the lease renewed in favour of the lessee upon the same terms except as to lease rent.
6. The lessee shall pay and discharge during the term of lease all assessments, rates, taxes and charges of every description whatsoever now or hereinafter to be assessed, imposed or charged upon the said land
7. The lessee shall submit plans and specifications for new construction to the Municipal Corporation, Bhopal for approval, and the construction shall be in accordance with the approved plans and specifications.
8. The lessee shall use the said land and buildings, structures and works erected or constructed thereon for the purposes mentioned in clause (1).
9. The lessee shall at his own expenses at all times, maintain, repair and keep in good conditions all boundary marks and pillars along with the boundaries of the said land according to the demarcation shown in the plan (here annexed)
10. The lessee shall keep the said land and the buildings erected thereon condition fit for habitation and use and shall connect at his own expenses effluent channel with underground drainage system which may be laid by State Government or the local authority concerned.
11. The lessee shall not encroach upon any land adjoining the land leased and the event of such encroachment he shall be deemed to be a trespasser liable to be evicted therefrom. The lessor shall be entitled to recover expenses, if any incurred to secure possession.
12. While using the said land, if the lessee causes any harm injury to any person, he shall be liable to pay compensation or damages in the same manner as a tenant of land is generally liable.
13. The lessee shall acquire no proprietary right over the said land, but it shall be lawful for the lessee to assign its rights under this lease to any person's Firms or Company/s, having authority by Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 15 their constitution to become bound by the obligations undertaken by the lessee hereunder.
14. The lessor hereby covenants with the lessee that the lessee paying the rent hereby reserved, observing and performing the covenants and condition herein contained and on his part to be observed and performed shall peace by and quietly possess and enjoy the said land during the term of this lease without interruption or disturbance by the lessor or any person lawfully claiming under him.
15. All costs and expenses for preparation, execution and registration of this lease shall be borne and paid by the lessee.
16. The contents of letter No.6-43/Sat/Nazul/99 dated 6 December 1999 Revenue Department of M.P. Government according to which this lease deed is being renewed and attached map shall also be part of this lease deed.
17. Any sum falling due from the lessee under this agreement may be recovered as an arrears of land revenue.
18. In the event of any dispute or difference arising between the parties hereto regarding these presents or the construction or application thereof or any clause therein or anything contained herein or as to act, deed or omission either party herein, in connection with this agreement or carrying thereof or as to any other matter in any way relating to this agreement or carrying out thereof or the rights, duties or liabilities of either parties to this agreement under or in respect of this agreement the same will be referred to two arbitrators one to be appointed by each party to the reference and in event of such arbitrators differing them to an umpire appointed by the arbitrators who shall be of eminent legal status and the same shall be treated as if it had been a reference under the provisions of the Indian Arbitration Act 1940 or any other legislative modification thereof for the time being in force."
12. Upon asking about the current status of renewed lease dtd. 14.12.1999 (Ex.P/20), Shri Mukund Agarwal, Govt. Advocate supplied the following information :Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 16
(i) Out of 12 acres of land, an area 8.18 acres of land was voluntarily transferred to the lessor and only an area 3.82 acres of the land remained with the plaintiff, out of which an area 0.069 acre of the land went in construction of Hamidia Road, therefore, 3.13 acres of land remained with the plaintiff-Company.
(ii) Upon arising of dispute between the plaintiff-Company and State Govt., matter went in arbitration and upon passing of final order (Award dtd. 3.7.1985, decision of ADJ dtd. 10.9.1987 and decision of High Court dtd. 18.7.1988), lease was renewed in the year 1988 for 30 years w.e.f. 14.3.1969 to 13.3.1999 on the same terms and conditions. Later on the lease was again renewed on 14.12.1999 for 30 years (from 14.3.1999 to 13.3.1929) on the same terms and conditions, vide renewal lease deed (Ex.P/20).
(iii) At the time of renewal of lease deed, there remained an area 3.13 acre of the land with the plaintiff-Company, out of which in the year 1999 an area 0.58 acre land went in another construction/development of Hamidia Road and in the year 2004 an area 0.48 acre of land also went in beautification of Alpana Triangle (Tiraha) and at present total area 2.82 acres of land only is with the plaintiff-Company, lease rent of which is fixed at Rs. 51,200/- p.a. which is deposited up to the year 2023.
13. Similarly the defendants have based their case on the documents (Ex.D/2 and D/3). For ready reference, their relevant part is quoted as under :-:
Ex. D/2, which is a lease deed dtd. 03.05.1961 (between the Nerbudda Valley Refrigerated Products Company (P) Ltd. AND M/s Chandanmal Lunkad & Company through their partner Shri Chandanmal Sagarmal) Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 17 "7. That the Lessees may sublet the Restaurants, Cycle Stand, show-cases and Windows, but not the rest of the demised premises exclusively necessary for exhibition purposes. The Lessees shall not sub-let the premises exclusively necessary for exhibition purposes or any part thereof without the written consent of the Lessor obtained prior to sub-letting, which permission shall not ordinarily be refused without sufficient cause."
Ex. D/3, which is a lease deed of the year 1992 (between the Nerbudda Valley Refrigerated Products Company (P) Ltd. AND M/s Chandanmal Lunkad & Company through their partner Shri Chandanmal Sagarmal) "7. That the Lessee shall not make any additions or alterations whatsoever, to the premises without the prior permission in writing of the Lessor and without getting his sanctions in writing of the estimates of cost of such additions and alternations. If on obtaining the permission and sanction of the Lessor any additions or alterations are made to the demised property by the Lessee, the cost thereof shall be borne by the Lessee and shall become part of the deposit stated in Clause 5 above and shall become refundable to the Lessee in the same manner as the above referred Deposit of Rupees Three Lac fifty thousand only will become refundable, after allowing for depreciation, wear and tear etc. Such additions and alterations shall be executed under the supervision of the Lessor or his authorized agents or representatives. It has been however, agreed that the Lessee are hereby authorized to construct, at a cost not exceeding Rupees One Lac, a manager's Bungalow (Not exceeding 1000 Sq.ft), a Restaurant and a Cycle Stand (not exceeding 2000 Sq.ft.) in the demised premises in accordance with the Municipal Sanction to be procured by the Lessee themselves. The plan and estimates of this new construction will be forwarded to the Lessor for technical check-up and reasonableness. As agreed above, the construction cost will be made by the Lessee in toto on behalf of the Lessor and the construction shall be carried out under the supervision of the Lessor or his authorized agent or representative.
8. That the lessees may sublet the Restaurant, Cycle Stand, Show cases and Windows but not the rest of the demised premises exclusively necessary for exhibition purposes. The Lessee shall not Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 18 sublet the premises exclusively necessary for exhibition purposes or any part thereof without the written consent of the Lessor obtained prior to subletting which permission shall not ordinarily be refused without sufficient cause.
19. That any change in the constitution of the Lessees firm or in the partners thereof shall ipso facto not furnish grounds to the lessor for termination of the Lease which shall continue as per terms and conditions contained herein."
Ground of arrears of rent under section 12(1)(a) of the Act
14. Undisputedly, the rate of rent of suit premises is Rs.8,000/- per month but the plaintiff by way of notice, claimed arrears of rent of Rs.2,00,000/- only and by way of suit also, only an amount of Rs.2,00,000/- was claimed as arrears of rent in respect of previous 25 months. As against the monthly rent of Rs.8,000/- p.m. the defendants have deposited property tax of Rs.6,000/- p.m. in the Municipal Corporation, Bhopal. Considering the aforesaid, learned trial Court on the defendants' application under section 13(2) of the Act passed interim order on 26.04.2007 directing the defendants to deposit arrears of rent @ 2,000/- p.m., which remained unchallenged, in pursuance of which the defendants deposited rent in the Court. However, later on the defendants stopped paying property tax and started depositing rent in the Court @ Rs.8,000/- per month. Upon perusal of the statement of deposited rent, there is no default on the part of defendants. As such, in presence of unchallenged court's order, in my considered opinion learned trial Court has not committed any illegality in dismissing the suit for eviction on the ground of arrears of rent under Section 12(1)(a) of the Act. Ground of denial of title under section 12(1)(c) of the Act
15. The plaintiff has taken ground of eviction under section 12(1)(c) of the Act but the record shows that the defendants have not denied title of Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 19 the plaintiff in the written statement but admitting the relationship of landlord and tenant, have asked the plaintiff to prove its own title, which itself cannot be said to be denial of title, because in his statement, Dilip Lunkad (DW2) has claimed himself to be owner of Cinema hall but not of building of Cinema hall and in the written statement has admitted himself to be tenant of the plaintiff, therefore, the plaintiff is not entitled for decree of eviction on the ground of denial of title under Section 12(1)
(c) of the Act.
Ground of locking of suit premises for 6 months u/s 12(1)(d) of the Act
16. Even though, originally the suit premises was given on rent to the defendant 1-firm through its partners defendants 1(a) & (b), but even after their retirement from the partnership, it is being used by the defendants 2-5 for several purposes and admittedly it is not locked, therefore, it cannot be said that the suit accommodation has not been used by the defendants without reasonable cause for which it was let, for a continuous period of six months immediately preceding the date of filing of suit for the recovery of possession. As such, no illegality has been committed by learned trial Court in refusing decree of eviction on the ground under section 12(1)(d) of the Act.
Ground of eviction u/s 12(1)(h) & (n) of the Act.
17. Originally, the land was given by the State to the plaintiff for manufacturing Ice-cream and Dry-Ice and other frozen and refrigerated food-stuffs, articles, commodities or goods of all kinds or any of them, but contrary to terms and conditions of lease, the plaintiff somewhere in the year prior to 1960 got constructed Cinema Hall and sub-let it to defendant 1-M/s Chandanmal Lunkad & Company vide lease deed dtd. 3.5.1961 (Ex.D/2).
Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 2018. Upon dispute between the plaintiff and State Govt., matter went before Arbitrator, whose Award dtd. 3.7.1985 (annexed with deed of renewal of lease-Ex.P/20) shows that in arbitration proceedings, the factum of sub lease in favour of defendant M/s Chandanmal Lunkad & Company was not brought to the notice of Arbitrator and Award was passed on 3.7.1985 with the further recommendation of renewal of lease for 99 years on the same and original terms and conditions, even after construction of Cinema Hall, which in appeal was modified to 30 years. Certainly, the Arbitrator presumed possession of Cinema Hall/leased property with the plaintiff, the Nerbudda Valley Refrigerated Products Company (P) Ltd. itself. Had the factum of sub lease been brought to the notice of Arbitrator, the plaintiff would not have been successful in getting recommendation of renewal of lease that too for 99 years, however the same was not rightly done by the Govt. and it was renewed only for 30 years for the same and original purpose and not for Cinema Hall.
19. In presence of aforesaid facts and misleading act of the plaintiff, it cannot be held entitled for decree of eviction under section 12(1)(h) of the Act for the purpose of building or re-building or making thereto any substantial additions or alterations, that too contrary to the conditions of lease.
20. So far as the need of construction of Commercial Complex in open space, is concerned, the plaintiff has sought eviction on the ground of section 12(1)(n) of the Act but as has been discussed above, the plaintiff is not entitled for decree of eviction on this ground also for construction of Commercial Complex just contrary to the conditions of lease deed. Ground of eviction u/s 12(1)(m) of the Act Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 21
21. From the aforesaid discussion it is apparent that the plaintiff wants to use the leased land for the purpose contrary to lease. After making sub lease, the plaintiff time to time permitted the defendants to use the property in question for different purposes. Even the construction of house for residence of Manager of the Cinema Hall was permitted. At the time of raising of construction in the suit property, the plaintiff never objected and just for the purpose of seeking eviction, has tried to make out a ground of eviction under section 12(1)(m) of the Act. Further, as the plaintiff itself wants to raise construction of Commercial complex just contrary to terms and conditions of lease, therefore, it cannot be said the construction made by the defendants, has materially altered the suit accommodation that too to the detriment of the plaintiff's interest or it has diminished the value.
Ground of sub letting u/s 12(1)(b) of the Act
22. The suit premises was given on rent by the plaintiff to the partnership firm whose original/the then partners were Chandanmal Lunkad and Sagarmal, but later on they retired from the partnership firm and permitted the defendants 2-5 to do the partnership business, who are doing business having full control and possession in the suit premises that too without assistance and control of the original partners of the firm namely Chandanmal and Sagarmal, the defendant 1(a)&(b), certainly without prior permission of the plaintiff-landlord. These facts are not in dispute but are admitted on record.
23. Learned trial court taking into consideration the condition no. 7 of Ex.D/2 and condition no. 8 of Ex.D/3, has held that there was permission of sub-lease, given by way of agreement of lease itself, therefore, there is no sub-tenancy. But apparently learned trial Court has not considered that Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 22 there is no clause in the lease permitting sub-tenancy in respect of Cinema Hall. As such in absence of prior permission of sub lease, there is clear cut case of sub tenancy, and the plaintiff is entitled for decree of eviction on the ground of sub-letting.
Ground of bonafide need u/s 12(1)(f) of the Act
24. The plaintiff wants tenanted premises for starting Cinema business which is being done by the defendants also but the learned Court below has refused to pass decree of eviction on the ground that the plaintiff has not produced any document to prove availability of necessary machinery and permission, so also requisite map, sanction and requisite funds.
25. In the case of Ramjidas and ors. Vs. Maqsum Ali (1989 MPRCJ
39) coordinate Bench of this Court has held as under :-
"7. It is none of the requirements of section 12(1)(f) of the Act that a landlord must prove that he has ready funds available to serve as capital required for the proposed business. This has been the view taken by this Court in Mukundilal v. Chintaman (1976 M.P.W.N. SN 63) on a review of earlier decisions. In the present case it is not seriously disputed that the plaintiff does have income from agriculture. Dulichand (P.W.3), a witness already engaged in grain business, has deposed that an amount of Rs.1000/- approximately would suffice to start a retail business in grains. Thus, it cannot be said that the plaintiff would not be in a position to start the business on account of paucity of funds. The ratio of decision of this Court in Mohanlal v. Hakinmsingh (1980 M.P.L.J. 361) points out that possession of liquid assets is not required to be proved necessarily as a pre-requisite to the bonafideness of the plaintiff's requirement of the suit accommodation for business purpose.
10. A food grain dealers licence is not required to be taken merely because a person entertains a desire of starting a food grains business. No detailed procedure is prescribed for securing such a licence. If an appropriate application Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 23 accompanied by requisite fee is moved, license is issued as a matter of course, unless there be something to debar the person concerned from securing such a licence. It is not suggested that the plaintiff or Rambharose suffers from any such inability. It is common knowledge that sufficiently a long time is lost between the date of filing of the suit seeking ejecement on the ground of genuine requirement and the time by which the decree achieves a finality at the highest Court. It will be too much to expect that a person must secure a licence before filing of a suit and then keep on waiting till he secures possession of accommodation. In the present case itself the suit was filed on 1-4-72. A requirement, genuine otherwise, cannot be negatived merely because the plaintiff has failed to secure a licence entitling him to run the proposed business activity, which licence can be obtained within a short time without much a do and would surely be obtained before the plaintiff actually opens the shop."
26. Undisputedly, the defendant was given tenanted premises for the Cinema business, therefore, in view of the law laid down in the case of Ramjidas and ors. (supra) it cannot be said that the plaintiff cannot continue the same business in the suit premises and has no bonafide requirement to start the business. As such the plaintiff is entitled for decree of eviction on the ground under Section 12(1)(f) of the Act also.
27. It is pertinent to mention here that before the arbitrator the plaintiff company claimed that it has become Bhumiswami, and its claim was rejected by the Arbitrator vide para 11 of its award dated 03.07.1985, which attained finality up to the High Court, but again in the instant civil suit instituted by the plaintiff on 28.11.2006, the plaintiff in para 2 of the plaint has alleged that "the plaintiff is the owner and landlord of the premises formerly known as Baikunth Theater now Alpana Theater, with the Cinema building, and appurtenant (open) land situated at Hamida Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM 24 Road, Bhopal", which shows that the plaintiff deliberately claimed title in itself. Whereas, clause 13 of the deed of renewal of lease dated 14.12.1999 (Ex.P/20), states that "the lessee shall acquire no proprietary right over the said land but it shall be lawful for the lessee to assign its rights under this lease to any person's firms or company's." As such it is clear that the plaintiff has deliberately claimed title in itself, which act of the plaintiff has also determined its lease automatically as per Section 111(g) of the Transfer of Property Act, 1882. Resultantly, the State Government is free to take possession of the entire property from the plaintiff or other persons who are in possession through the plaintiff or defendants.
28. Resultantly, appeal succeeds in part and by setting-aside the impugned judgment and decree, the suit stands decreed for eviction on the grounds under Section 12(1)(b)&(f) of the Act as well as for arrears of rent, if any. The plaintiff shall be entitled for mesne profits till the receipt of possession of the suit premises.
29. However, no order as to costs.
30. Interim application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL) JUDGE SN Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/24/2023 6:43:42 PM