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2002 DIGILAW 1042 (MP)

Kunj Bihari Lal v. Prem Narayan

2002-11-25

K.K.LAHOTI

body2002
JUDGMENT Plaintiff aggrieved by judgment and decree passed by the lower Appellate Court by which the lower appellate Court modified the decree of the trial Court and has granted eviction under section 12(1)(h) of Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to 'the Act') and has reversed the decree under section 12(1)(e) of the Act. It is pertinent to mention here that decree under section 12(1)(h) of the Act was challenged by respondent before this Court in second Appeal No. 547/1989 and by order dated 28.3.1990 the decree under section 12(1)(h) of the Act was confirmed by this Court by granting time to the respondent to 'vacate the accommodation and the appellant was permitted to reconstruct the accommodation as per impugned judgment and decree. The appellant has challenged the judgment and decree reversed by the lower appellate Court under section 12(i)(e) of the Act. The appellate Court by the impugned order has reversed the decree merely on the ground that one Vijay Singh Chauhan was an important witness for respondent but the trial Court has not recorded his statement which was mandatory to negative the bonafide necessity of plaintiff. On this ground, the decree under section 12(1)(e) of the Act was reversed. This appeal was admitted on 21.11.1990 on following substantial question of law: "Whether in the facts and circumstances of the case, the plaintiffs were wrongly refused a decree of ejectment under section 12(1)(e) of M.P. Accommodation Control Act, 1961, only on the ground that the trial Court had not allowed the defendant to examine one of the witnesses Shri V.S. Chauhan ?" To consider the contention of the counsel, it appears that witness, Vijay Singh Chauhan was present in the trial Court on 14.9.1987 when defendant filed an application under section 151 and Order 18 rule 2(4) CPC. Previously, Vijay Singh Chauhan did not appear in the case but ultimately he was produced in the Court along with application, but the trial Court rejected the application on the ground that both the parties have closed their evidence and the case is fixed for final arguments. This application was filed by the respondent to delay the decision of the case. The contention of the defendant, was that Vijay Singh Chauhan was the tenant of plaintiff. He vacated three room adjoining to the present accommodation occupied by the plaintiff in January 1985. This application was filed by the respondent to delay the decision of the case. The contention of the defendant, was that Vijay Singh Chauhan was the tenant of plaintiff. He vacated three room adjoining to the present accommodation occupied by the plaintiff in January 1985. By this plaintiff has got more accommodation for his residence. The learned counsel for appellant submits that the appellate Court erred in reversing the finding in respect of bona fide necessity merely on the ground that Vijay Singh Chauhan though was present was not examined by the Trial Court. The defendant sought several adjournments in the case, but has not examined Vijay Singh Chouhan and after closure of the evidence by both the parties, on the date of the final argument, he was produced in the case. The learned counsel for the appellant submits that he has no objection even if the statement of Vijay Singh Chouhan is recorded even at this stage and after the statement, findings may be called by his Court. He is ready if this Court directs the Court below to examine Vijay Singh Chouhan and his evidence may be seen by this Court. The other party is not present in the case. In the circumstances, in the interest of justice, it will be justified if the statement of Vijay Singh Chouhan is recorded by the lower appellate Court and thereafter appellate Court will decide the case of plaintiff in respect of the bonafide necessity under section l2(1) (e) of the Act. In view of the aforesaid, this appeal is allowed partly. The judgment and decree under section 12(1)(h) of the Act, which has already been confirmed by this Court in S.A. No. 547/89, that part of the judgment and decree will remain unaffected as it has already been made final by this Court. So far as reversal of the judgment and decree by the lower appellate Court under section 12(1)(e) of the Act is concerned, the finding of the lower appellate Court in this respect is set aside and the matter is remitted back to the lower appellate Court to record the statement of Vijay Singh Chouhan and thereafter to decide appeal afresh in respect of bonafide necessity of plaintiff for residence. With the aforesaid direction, this appeal is allowed. Appellant will remain present in the lower appellate Court on 18.12.2002. With the aforesaid direction, this appeal is allowed. Appellant will remain present in the lower appellate Court on 18.12.2002. The appellate Court will serve respondent (appellant before the lower appellate Court; by a notice of a date to be fixed by the appellate Court. After appearance of the defendant, appellate Court fix a date for recording the statement of Vijay Singh Chouhan. On that date defendant will keep witness Vijay Singh Chouhan present in the Court. No process of the Court will be used by the respondent for presence of Vijay Singh Chouhan in the Court. As the respondent had kept present Vijay Singh Chouhan in the trial Court on his own without using process of the Court. If the witness appears on that date, the lower appellate Court will record his statement and after hearing the pm1ies, will decide the case. In case, Vijay Singh Chouhan does not appear, then the appellate Court will decide the matter afresh. But no adjournment will be granted by the appellate Court in that regard. Cost of this appeal will be borne by the parties. With the aforesaid direction, this appeal is finally disposed of.