Madhya Pradesh High Court
Devendra Kumar Sharma vs Deepak Jain on 15 July, 2010
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HIGH COURT OF MADHYA PRADESH ; JABALPUR
S.A.No. 364/2010
Devendra Kumar Sharma
Vs.
Deepak Jain
For the Appellant : Shri Nilesh Kotecha, Advocate.
For the Respondent : None although represented.
O R D E R (Oral)
( 15 /07 /2010 ) Hon. U.C.Maheshwari J.
The appellant/defendant has preferred this appeal under section 100 of the CPC, being aggrieved by the judgment and decree dated 26.2.2010 passed by District Judge Balaghat in Civil Regular Appeal No.3-A/2010, affirming the judgment and decree dated 24.11.09 passed by Civil Judge Class-I, Balaghat in Civil Original Suit No.7-A/2009, decreeing respondent's suit for eviction against the appellant on the ground enumerated under section 12(1)(a) and 12(1)(p) of the M.P Accommodation Control Act, 1961 (in short the Act).
2. The facts giving rise to this appeal in short are that the respondent herein filed the aforesaid suit against the appellant with respect of the premises described in the plaint and the annexed map with it, situated in Ward No.22 of Balaghat, for eviction on the grounds enumerated under section 12(1)(a) and 12(1)(p) of the Act, the arrears of rent and the appellant being convicted person in a criminal matter, is not entitled to remain continued as tenant in such premises. As per further averments of the plaint, the alleged tenancy was at the rate of Rs.1000/- per month and, the appellant being defaulter of the rent, has not paid the rent since 1.4.2002. 2 Even on making the demand by issuing a legal notice to the appellant by the respondent vide dated 3.1.2005, the same was not complied with. So far the other ground is concerned, it is stated in the plaint that the appellant has been convicted in two criminal cases relating to gambling Act. In this connection, it is also stated that the appellant is carrying out the activities of Gambling and the Prostitution in the disputed premises and because of this reason, the entire locality is going to be polluted. With these pleadings, the above mentioned suit for eviction was filed against the appellant.
3. In the written statement of the appellant by admitting the tenancy, the grounds of eviction are denied. It is stated that the alleged tenancy was initially at the rate of Rs.500/- per month and since the year 2005, the respondent was pressurizing him to enhance the rent at the rate of Rs.1000/- per month for which the appellant was not prepared and, in such premises, he has not committed any default in payment of the rent. In addition it is stated that some necessary services of the accommodation like electricity has been disconnected by the respondent, on which, an application for restoring the same was also filed by the appellant in the Court of Rent Controlling Authority. Accordingly, the entire arrears of rent was also disputed by the appellant. The other grounds relating to the aforesaid criminal case and the conviction of the appellant are also denied and prayer for dismissal of the suit with cost of Rs.5000/- is made.
4. In view of the pleadings, after framing the issues and recording the evidence, on appreciation of the same, the trial court has decreed the suit of the respondent as stated above. On filing the appeal by the appellant, by affirming such decree, the same has been dismissed by the appellate court, 3 on which, the appellant has come forward to this court with this appeal.
5. Shri Nilesh Kotecha, learned counsel for the appellant, after taking me through the pleadings and the evidence of the case firstly argued the matter at length but in view of the facts that the decree granted by the trial court under section 12(1)(p) of the Act was not assailed in the argument before the first appellate court, as appeared from the impugned judgment and, also in view of the law laid down by the Apex Court in the matter of Jamnalal and others Vs. Radheshyam (2000) 4 SCC 380 answering the question with respect of the ground enumerated under section 12(1)(a) of the Act, on making some query, in response of the same, counsel instead to argue further on merits for admission said that in any case if this court comes to the conclusion that the present appeal does not involve any substantial question of law then in such circumstance, by adopting some lenient view, period of six months be extended to the appellant for vacating the disputed premises and prayed for admission by allowing this appeal.
6. Having heard the counsel, I have carefully gone through the records and the impugned judgment. It is undisputed position in the matter that on appreciation of the evidence, the trial court has passed the aforesaid decree of eviction in favour of the respondent on the ground under section 12(1)(a) and 12(1)(p) of the Act. In appeal, the same has been upheld. Accordingly, there is a concurrent findings of the courts below in respect of the aforesaid grounds against the appellant. It is settled proposition of the law that the concurrent findings based on appreciation of the evidence of the courts below, howsoever are erroneous, the same could not be interfered at this stage under section 100 of the CPC as laid down by the Apex Court in the 4 matter of Kondiba Dagadu Kadam Vs. Savitri Bai Sopan Gurjar-AIR 1999 SC 2213.
7. Apart the above, concurrently it is held by the courts below that the appellant is defaulter in payment of the rent of the disputed accommodation not only for some months but for years together. Thus, in view of the principle laid down by the Apex Court in the matter of Jamnalal and others Vs. Radheshyam (supra) , such concurrent finding of the courts below could not be interfered at this stage as the same are based on appreciation of the document and the available evidence.
8. So far the ground under section 12(1)(p) is concerned, it appears from the appellate court judgment that such ground was neither raised nor argued while arguing the case on behalf of the appellant before the appellate court and, in such premises, such part of the decree passed by the trial court has attained finality between the parties, so at this stage, under section 100 of the CPC, by framing any substantial question of law on such ground, the appellant could not be extended any opportunity for hearing on such question.
9. Under the aforesaid premises, I have not found any circumstance in the case at hand giving rise to any question of law, muchless, the substantial question of law in this appeal requiring any interference at this stage under section 100 of the CPC. Hence this appeal being devoid of any merit is hereby dismissed at the stage of motion hearing.
10. However, considering the circumstance that the appellant is in possession of the disputed accommodation since long, hence it is not possible for him to vacate the same within the short period of two months. 5 In such premises, subject to some conditions, I deem fit to extend some period for vacating the same. Therefore, it is directed that on depositing the entire decreetal sum including the arrears of rent, if any, within sixty days from today and also on depositing the monthly mesne profit of the disputed accommodation, at the rate of monthly rent as held by the courts below, within 15 days from the end of every Gregorian calender month and also on furnishing appropriate surety to the satisfaction of the trial court along with an undertaking, within aforesaid sixty days, that the appellant shall vacate the premises and hand-over it's possession peacefully to the respondent on or before 31.01.2011, then the period for vacating the premises upto 31.01.2011 is given to the appellant, failing in compliance of any of the aforesaid condition, the respondent shall be at liberty to execute the impugned decree with all aspects.
11. The appeal is dismissed with aforesaid observation at the stage of motion hearing. There shall be no order as to the cost.
(U.C.Maheshwari) Judge.
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