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Madhya Pradesh High Court · body

2007 DIGILAW 17 (MP)

Ratanlal Maheshwari v. Harishankar Sharma

2007-01-08

RAJENDRA MENON

body2007
ORDER 1. This is defendants' second appeal under section 100, CPC assailing the judgment and decree passed by the first appellate Court in decreeing the suit filed by the plaintiff/respondent on the ground contemplated under section 12 (1) (a) of the M.P. Accommodation Control Act. 2. Plaintiff/respondent filed the suit in question inter alia contending that the defendants are in arrears of rent, they are not paying rent of the suit premises as per the rent note dated 1.3.1970. Initially the rent was fixed at Rs. 40/- per month which was consequently enhanced to at Rs. 80/- per month. After 31.5.1983 defendants have not paid the rent, nor are they paying the electricity bill, therefore, suit in question was filed. The suit was registered and notice issued to the defendant on 25.9.1986, the suit was put to trial and six issues were framed. On the basis of evidence and material that has come on record, trial Court found that the rent of the suit premises has not been paid but on 24.8.1992 condoned the delay in depositing all the rent and dismissed the suit on the ground that the decree under section 12 (1) (a) cannot be passed. On a first appeal being filed by the plaintiff, the first appellate Court has decreed the suit and it is found by the first appellate Court that the trial Court committed error in condoning the delay in payment of rent. First appellate Court further found that during the pendency of the suit defendant has failed to pay the rent and therefore the plaintiff is entitled for a decree on the ground contemplated under section 12 (1) (a) of M.P. Accommodation Control Act. This judgment decreeing the suit for eviction passed by the first appellate Court is assailed in this appeal. 3. Inviting my attention to the principles laid down in the following judgments namely N. Balakrishnan v. M. Krishnamurthy [ AIR 1998 SC 3222 ], Vora Abbarbhai Alimohamed v. Haji Gulamnatri Haji Safibhai [ AIR 1964 SC 1341 ], Shri K.S. Tomar, learned counsel for the appellants argued that the appellate Court should not have interfered, with the discretion exercised by the trial Court in the matter of condoning the delay. It is further submitted that no application for condonation of delay is necessary and the trial Court can condone the delay suo motu and the first appellate Court has no right to decree the suit on the grounds contemplated under section 12 (1) (a) of the M.P. Accommodation Control Act. It is accordingly argued that substantial questions of law as indicated in the memorandum of appeal arises for consideration in this appeal. Apart from above, Shri K.S. Tomar, senior counsel also argued that as the order dated 24.8.1992 condoning the delay in payment of rent is not challenged in this appeal it attains finality as no revision or writ petition is filed against the said order, accordingly, he seeks interference in this appeal. 4. Refuting the aforesaid, Shri Y.K. Bharadwaj, learned counsel for the respondent submits that once the delay in payment of rent is established, trial Court committed grave error in condoning the delay without filing of an application. It is further argued by him that even when the appeal was pending before first appellate Court default in payment of rent was established, a report was called for from the trial Court and the trial Court submitted a report on 4.3.2003. In the said report finding recorded is that the defendants appellants herein have not paid the rent. Accordingly, Shri Bharadwaj submits that once it is established that the defendants are not paying rent continuously for a long period of time, appellate Court has not committed any error in decreeing the suit. The first appeal was filed on 29.2.1996 for the first time rent was deposited after four years on 2nd March 2001. Accordingly, it was submitted by him that the delay cannot be condoned and the suit is rightly decreed by the first appellate Court. In support of his contentions to the effect that the delay in deposits of the rent cannot be condoned without an application, he places reliance in the case of Khilan Singh v. Karuna Shankar Trivedi [1994 (1) MPJR 2341.]. 5. Having heard the learned counsel for the parties and on a perusal of the record, it is clear that initially when the suit was pending, defendant did not deposit the rent for a long period of time. Even though the suit was filed on 13th January 1986 for a long period of time rent was not paid by the defendant. Having heard the learned counsel for the parties and on a perusal of the record, it is clear that initially when the suit was pending, defendant did not deposit the rent for a long period of time. Even though the suit was filed on 13th January 1986 for a long period of time rent was not paid by the defendant. As the rent was not paid certain objections were raised by the plaintiff/respondent. In spite of the same, no application was filed and it was only when an application dated 28.7.1992 was filed by the plaintiff under section 13 (6) of the M.P. Accommodation Control Act, delay in payment of rent was condoned on 24.8.1992. From the records it is seen that defendant had paid rent, only on 7.8.1992 i.e. after the application under section 13 (6) was filed. In spite of above learned trial Court has condoned the delay in depositing all the rent and dismissed the suit on the ground that the rent has been paid during the pendency of the trial. for that, the matter was agitated by the plaintiff before the first appellate Court. The matter was re-examined by the first appellate Court and first appellate Court found that in the matter of condoning the delay in depositing the rent learned trial Court has not exercised its discretion properly. Inordinate delay in depositing of the rent has been condoned without any application being filed, and without justifiable reason indicated for the depositing of rent. That apart, the first appellate Court has also found that after filing of the appeal and receipt of notice, defendants have not deposited the rent, therefore, enquiry was ordered and report was called from the Court below. On the basis of report dated 4.3.2003 submitted by the trial Court, first appellate Court has found that there is no deposit of rent by the defendant even during the pendency of the appeal. Decree was passed on the ground contemplated under section 12 (1) (a) read with section 13 (1) of the M.P. Accommodation Control Act. 6. Contentions of Shri K.S. Tomar, learned senior counsel to the effect that the first appellate Court does not have power to decree the suit under section 12 (1) (a) once the delay in condoned, is wholly misconceived. 6. Contentions of Shri K.S. Tomar, learned senior counsel to the effect that the first appellate Court does not have power to decree the suit under section 12 (1) (a) once the delay in condoned, is wholly misconceived. The first appellate Court has re-appreciated the matter and examined the question as to whether condonation of delay was properly ordered by the trial Court. The same power which are available with the trial Court were available to the first appellate Court. 7. In the facts and circumstances of the case the first appellate Court found that there is no reason for the inordinate delay in depositing the rent and therefore condoning the delay in payment of rent without application filed before the trial Court was found to be erroneous. On consideration of this fact, the first appellate Court decreed the suit. Finding recorded with regard to non-payment of rent is a pure finding of fact based on appreciation of evidences and material available on record, on this count no substantial question of law is involved in this appeal warranting admission. 8. Finding recorded by the first appellate Court is that on at least two occasions once in the trial Court prior to 7.8.1992 and once before the appellate Court during the pendency of the appeal rent is not deposited for continuous period of more than two to three years, this is a finding of fact and in doing so, first appellate Court has not committed any error warranting interference now in this appeal. Accordingly, finding no case made out for interference and no substantial question of law existing for adjudication, appeal stands dismissed without any order so as to cost.