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Madhya Pradesh High Court · body

2005 DIGILAW 585 (MP)

RAM SWAROOP MAHESHWARI v. JAI PRAKASH

2005-05-04

P.K.JAISWAL

body2005
JUDGMENT P.K. Jaiswal, J. This appeal has been filed by the defendant against judgment and decree dt. 17-4-2003 passed by IIIrd Additional District Judge, Vidisha, in Civil Suit No. 103-A/02 whereby the learned Additional District Judge dismissed the appeal and affirmed the judgment and decree of the trial Court dt. 26-8-2002 passed by the IIIrd Civil Judge, Class II, Vidisha in Civil Suit No. 59-A/02. The brief facts of the case are that the respondents-plaintiffs filed a suit for eviction of suit shop alleging that the plaintiff No. 1 Jai Prakash was the owner of the suit house consisting the suit shop situated at Hospital Road, Madhavganj, Vidisha. It was alleged that plaintiff No. 2 let out the suit shop to the defendant but later on the house was given to the plaintiff No. 1 by way of family arrangement arrived at orally on 1-1-1983, the same was reduced in writing vide memorandum dt. 7-2-1983 (Ex.P-8), the plaintiff No. 1 became the owner of the house. In respect of arrears of rent, it was alleged that defendant was a tenant of Rs. 350/- per month and despite notice no rent was paid by the defendant. It is alleged that plaintiff No. 1 required the suit shop for starting hotel business in it along with a portion occupied by Arjun Das and for that he had no other alternative accommodation for that purpose. Plaintiffs also alleged that the defendant had closed the suit shop for last 10 years and was not carrying any business therein as such ground under Clause (d) of sub-section (1) of section 12 of M. P. Accommodation Control Act, 1961 for eviction was attracted. The plaintiff further urged that the defendant had sub-letted the suit shop to so many persons from time to time and claimed eviction under Clause (b) of sub-section (1) of section 12 of the 'Act'. The defendant in his written statement denied that he was a tenant at the rate of Rs. 350/- per month but stated that he was a tenant at the rate of Rs. 100/-per month and suit house was taken for residential and non-residential purpose from the plaintiff No. 2 and there was no partition or any document was filed to show that the plaintiff No. 1 was the owner of the property. 350/- per month but stated that he was a tenant at the rate of Rs. 100/-per month and suit house was taken for residential and non-residential purpose from the plaintiff No. 2 and there was no partition or any document was filed to show that the plaintiff No. 1 was the owner of the property. The defendant further stated that no intimation was given regarding transfer of ownership by which plaintiff No. 1 became the owner of the house. The plaintiff No. 1 was having number of houses in Vidisha and have alternative suitable accommodation for his need. Defendant further stated that plaintiff No. 1 was practicing Advocate and he could not run the business of hotel and in past at the instance of plaintiff No. 2, he vacated half portion of the house and handed over the possession to him. The plaintiff No. 2 rented out the said portion to one Arujn Das on higher rent. In respect of arrears of rent, defendant stated that he was paying the rent in time upto 31-3-1995 and, thereafter, plaintiff No. 2 stopped taking the rent and as such he had deposited the rent for a period from 30-4-1995 to 31-7-1996 amounting to Rs. 6,900/- and prayed for dismissal of suit. The trial Court on the basis of oral and documentary evidence found that notice was refused by the defendant and as such the same was returned back vide Ex.P-7 and Ex.P-8. The trial Court held that the plaintiff came to know about notice vide Ex.P-1 but he knowingly refused the same. The suit was filed on 24-5-1995. The defendant appeared on 7-12-1995 but failed to pay rent in time nor he deposited the rent on 15th day of every month in compliance to order dt. 20-9-1996 and had committed number of defaults for not depositing the rent in time. No application for condonation of delay for not depositing the rent in time as per section 13(1) of M.P. Accommodation Control Act, 1961 was filed and as such he was not entitled to any benefit u/s 12(5) and decreed the suit u/s 12(1)(a) of the M.P. Accommodation Control Act, 1961. In respect of bona fide need trial Court found that Jai Prakash (P.W.I) in his deposition very specifically stated that he required the suit premises for starting hotel business. In respect of bona fide need trial Court found that Jai Prakash (P.W.I) in his deposition very specifically stated that he required the suit premises for starting hotel business. Manik Chand Agrawal (P.W.2) in his deposition stated that the suit house was given in family settlement to plaintiff No. 1 and he wanted to start hotel business over the suit premises as well as in the joint suit premises which was in possession of Arjun Das. He further stated that plaintiff No. 1 was not practicing law nor he was interested in legal profession nor he was having any independent practice. The said fact was denied by defendant witness Girish (D.W.I). The trial Court held that plaintiff can change his business as per his wish and that he proved his need and suit premises was required bona fide for hotel purpose and decreed the suit under Clause (a) and (f) of sub-section (1) of M.P. Accommodation Control Act, 1961 and dismissed the suit u/s 12(1)(b) and 12(1)(i) of the said 'Act'. The appellant challenged the judgment and decree of trial Court by filing an appeal before the first appellate Court. The first appellate Court after appreciating the oral and documentary evidence and judgment and decree of the trial Court found that suit house was joint Hindu property of Manik Chand Agrawal (P.W.2), plaintiff No. 2 was karta of joint Hindu family and he recovered rent from the defendant and defendant admitted that he was a tenant of plaintiff No. 2 and plaintiff No. 2 by family settlement (Ex.P-8) had given the suit house to plaintiff No. 1 and they jointly filed the suit against the defendant and as such it was maintainable. The lower appellate Court held that the rent was due from 1-4-1994 and was not paid and defendant failed to file any documents that rent was paid upto March, 1995. The lower appellate Court held that rent was not paid in time and defendant failed to comply with the provision of section 13(1) of the M.P. Accommodation Control Act nor he filed any application for condonation of delay and as such delay cannot be condoned and affirmed the decree of the trial Court granted u/s 12(1)(a) of M.P. Accommodation Control Act. The lower appellate Court further found that the premises was given to the defendant for non-residential purpose and defendant failed to file any document to show that the same was for residential as well as non-residential purpose. The lower appellate Court further found that plaintiff No. 1 proved his bona fide need for starting hotel business over the suit premises and affirmed the decree passed by the trial Court. The lower appellate Court also dismissed the cross objection filed by the plaintiff and affirmed the judgment and decree of the trial Court. The appeal was admitted on 14-1-2002 on the following substantial question of law :- Whether the two Courts below have erred in passing a decree for ejectment u/s 12 of M.P. Accommodation Control Act when the two Courts below have found that the relationship of landlord and tenant between defendant and plaintiff No. 1 is not found proved?" The learned counsel for appellant has urged that suit was filed on the ground that plaintiff No. 1 is the owner of the suit shop and he required the suit premises for starting hotel business, whereas plaintiff No. 2 gave the shop on rent to defendant No. 2 and he owned the suit property. The plaintiff No. 2, who was the father of plaintiff No. 1 by family settlement gave the suit house by memorandum dt. 7-2-1983 (Ex.P-8). He further stated that there was no relationship of landlord and tenant between the defendant/appellant and plaintiff No. 1 and as such the suit was not maintainable. He further stated that as per Clause (f) of section 12(1) of M. P. Accommodation Control Act, the suit can be filed by the landlord who was owner of the house. In support of the said argument he placed reliance on a decision of the Apex Court reported a case of M.M. Qasim v. Manohar Lai and Others, 1981 MPRCJ 165, in which the Hon'ble Supreme Court held that the persons claiming possession on the ground of his reasonable requirement of the leased building must show that he was a landlord in the sense that, he was owner of the building and had a right to occupy the same in his own right. He further relied on a decision of this Court in a case of Hansraj v. Gomti and Others reported in 1996 JLJ 357 and urged that in the absence of privities of contract even an owner could not be a 'landlord' and no relations of landlord and tenant existed between the plaintiff No. 1 and defendant and Courts below committed error in granting decree u/s 12(1) of M.P. Accommodation Control Act, 1961. The learned counsel for appellant has urged that suit property is a joint Hindu property and plaintiff No. 2 being a 'Karta' and is owner of the suit property and appellant-defendant admitted the tenancy of defendant No. 2. There is no pleading in the plaint that suit property is owned by plaintiff No. 1 nor it was pleaded that plaintiff No. 1 authorised plaintiff No. 2 to receive rent on his behalf nor it was pleaded that suit property was required for business purpose. Both the Courts below considered the evidence without any pleading and made out a new case which was never pleaded by the plaintiffs. Reliance is placed on the decisions of the Hon'ble Supreme Court in the case of Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, and Gulabrao Balwantrao Shinde and Others Vs. Chhabubai Balwantrao Shinde and Others, . In both the cases, the Hon'ble Supreme Court observed that the decision of the case cannot be based on the ground outside the pleadings of the parties and held that appellant was not entitled for grant of the relief not asked for. He lastly stated that Courts below committed error in granting decree for arrears of rent without serving the demand notice as required u/s 12(1)(a) of the M. P. Accommodation Control Act, 1961 and relied upon the decision of this Court in a case of Habbu and Another Vs. Mohammad Hasan and Another, , in which it was held that decree for eviction on the ground of non-payment of arrears of rent within two months of the service of demand notice cannot be passed, if no notice was given by the landlord to the tenant demanding arrears of rent from him. Mohammad Hasan and Another, , in which it was held that decree for eviction on the ground of non-payment of arrears of rent within two months of the service of demand notice cannot be passed, if no notice was given by the landlord to the tenant demanding arrears of rent from him. On the other hand, the learned counsel for the respondents supported the judgment and decree of the Courts below and stated that plaintiff No. 1 is owner of the suit property and he acquired it from his father and Courts below after appreciating the oral and documentary evidence passed a decree in their favour. He further stated that notice by registered post was issued vide Ex.P-1 dt. 1-5-1995 to defendant to his residential address at Ganj Basoda. The postal receipt was Ex.P-2. The notice was unserved and as such again notice was sent by registered post on 20-5-1995 vide Ex.P-3. Notice was again sent from Ganj Basoda Post Office vide Ex.P-5 and Ex.P-6 postal receipt No. 4610 dt. 26-10-1995 to his residence as well as to his shop at Galla Mandi, Ganj Basoda. The defendant had refused to take notice which is evident from Ex.P-7 and Ex.P-8. Courts below held that notice was given to the defendant and requirement of clause (a) of sub-section (1) of section 12 of Act is satisfied. He further stated that suit was filed on 7-12-1995 but defendant failed to deposit the rent within a period of two months from the date of filing of suit. The trial Court on 20-9-1996 fixed the rent at the rate of Rs. 100/- (one hundred) per month. Before the trial Court, the defendant never moved any application for condoning the delay in depositing the rent. He relied upon a decision of this Court in a case of Sushila Shrivastava (Smt.) Vs. Nafees Ahmed Qureshi and Another, in which it was held that delay in depositing the rent cannot be condoned unless prayed for. He further stated that defendant has not challenged the decree passed u/s 12(1)(a) of M.P. Accommodation Control Act and as such the same be final and binding on him. He further stated that by a family arrangement Ex.P-8 suit property was given to the plaintiff No. 1 and no registration was required. The Hon'ble Supreme Court in a case of Tek Bahadur Bhujil Vs. He further stated that by a family arrangement Ex.P-8 suit property was given to the plaintiff No. 1 and no registration was required. The Hon'ble Supreme Court in a case of Tek Bahadur Bhujil Vs. Debi Singh Bhujil and Others, has held that family arrangement can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon. It is generally prepared as a record of what had been agreed upon, in order that there should be no hazy notions about it in future and it does not require compulsory registration u/s 17 of the Registration Act. Learned counsel for respondents further urged that plaintiff relied upon different rights alternatively and there is nothing in the CPC to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereon in the alternative. In support of the above contention he placed his reliance in a decision of the Apex Court in the case of Srinivas Ram Kumar Vs. Mahabir Prasad and Others, . He lastly, placed reliance on a decision of Apex Court in a case of Ramesh Chand and others vs Raj Kumar reported in 2003 (2) JU 14, in which it was held that the arrangement made by father, who is the owner of the property, in favour of his mentally retarded son cannot be said to be an arrangement not permissible in law and arrangement incorporated in the document can be viewed as a settlement of the property by father in favour of his son. Para 10 of the said judgment is relevant which reads as under:- 10. Mr. S. K. Gambhir, learned senior counsel appearing for the appellants strenuously contended that the Rent Controlling Authority was right in holding that there was no relationship of landlord and tenant between the parties, since the document Exhibit P-4 could not be accepted as a valid family arrangement/family settlement nor it could be construed to be a document of partition. Shri Gambhir further contended that Raj Kumar had no title in the property in question and therefore, the petition was rightly rejected as not maintainable. Shri Gambhir further contended that Raj Kumar had no title in the property in question and therefore, the petition was rightly rejected as not maintainable. Regarding the question of bona fide requirement Shri Gambhir contended that the trial Court, on consideration of the facts and circumstances of the case recorded the finding that the arrangement made by Nemi Chand by the document Exhibit P-4 was a device to get over the undisputed factual position that Nemi Chand has a number of other accommodations available to be used for the purpose. Therefore, according to Shri Gambhir, a subterfuge was adopted and the petition for eviction was filed purportedly on behalf of Raj Kumar, a mentally unsound person. The appellant/defendant admitted that plaintiff No. 1 is landlord and as such Courts below had not committed any illegality in passing the decree of ejectment u/s 12(1)(a) and (f) of M.P. Accommodation Control Act,1961. The findings recorded by the Courts below are finding of fact. In view of the decision of the Hon'ble Supreme Court in Ramesh Chand and others (supra)the Courts below have not committed any error in passing the decree under Clause (a) and (f) of Sub-section (1) section 12 of M.P. Accommodation Control Act, 1961. The question of law is accordingly answered against the appellant. The appeal has no merit and is accordingly dismissed with cost.