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Madhya Pradesh High Court · body

2007 DIGILAW 887 (MP)

DINESH MALVIYA v. SHAMIM MIYAN

2007-08-14

SUSHMA SHRIVASTAVA

body2007
Judgment ( 1. ) THIS is plaintiffs appeal against the appellate judgment and decree passed by Second Additional District Judge, Hoshangabad in Civil Appeal No. 132-A/ 1995 reversing the decree of eviction passed by Second Civil Judge Class-I, hoshangabad, in CS. No. 33-A/92. ( 2. ) BRIEF facts giving rise to this second appeal are as follows:-Plaintiff/appellant filed a suit for eviction, arrears of rent and mesne profits against the defendant/respondent in respect of the Suit Shop No. 8 situated at Ward No. 13 at Tehsil Babai, District Hoshangabad. According to plaintiff, defendant was the tenant of the plaintiff in respect of the suit shop on monthly rent of Rs. 350/ -. His tenancy commenced from the first day of English calendar month and ended on the last day. The tenancy was for non-residential purpose. Defendant fell in arrears of rent from 1-1-89. Plaintiff required the suit shop for starting the business by his wife. The suit shop was also in dilapidated condition and was unfit for human habitation. It was required for carrying out reconstruction. Therefore, plaintiff served a registered notice dated 21-9-90 on the defendant through his Counsel and determined his tenancy w. e. f. 31-10-90 and also called upon him to pay the arrears of rent. Defendant, however, failed to pay the arrears of rent as well as to vacate the suit shop despite service of notice. Plaintiff, was therefore, constrained to file a suit before the Trial Court. ( 3. ) DEFENDANT/respondent contested the suit. In the written statement filed before the Trial Court defendant contended that suit shop was let out to him by the plaintiffs father Gulab on a monthly rent of Rs. 75/-, which was subsequently raised to Rs. 100/- per month. After the death of Gulab, plaintiffs brother used to recover the rent of Rs. 100/- per month from him and there was no relationship of landlord and tenant between the plaintiff and defendant. Plaintiff did not require the suit shop either for starting the business by his wife or for carrying out reconstruction. Defendant was not in arrears of rent. His tenancy was also not validly determined in terms of Section 106 of Transfer of property Act. Plaintiff was, therefore, not entitled to eviction. The suit filed by the plaintiff without joining all the LRs of Gulab was not maintainable and liable to be dismissed. ( 4. Defendant was not in arrears of rent. His tenancy was also not validly determined in terms of Section 106 of Transfer of property Act. Plaintiff was, therefore, not entitled to eviction. The suit filed by the plaintiff without joining all the LRs of Gulab was not maintainable and liable to be dismissed. ( 4. ) ON the above pleadings, Trial Court framed various issues and after recording evidence of both the parties held that the defendant was the tenant of the plaintiff on a monthly rent of Rs. 100/- and the suit filed by the plaintiff alone was competent, as the suit could well be filed by one of the co-owners. The Trial court also held that the tenancy of the defendant was validly determined by plaintiffs notice dated 21-9-90, the receipt of which was undisputed. Although, the various ground of eviction taken by the plaintiff under M. P. Accommodation Control Act, 1961 were not found proved, but, since the provisions of M. P. Accommodation Control Act, 1961 were Undisputedly not applicable to Tehsil Babai, where suit accommodation was situated, plaintiffs suit was decreed against the defendant for eviction, arrears of rent and mesne profits under the General Law vide judgment and decree passed on 29-10-93. ( 5. ) IN appeal preferred by the defendant against the aforesaid judgment and decree, the First Appellate Court confirmed the findings on issues nos. 1,3,4,5 and 6 recorded by the Trial Court that defendant was the tenant of the plaintiff in respect of the suit shop on a monthly rent of Rs. 100/- and he was liable to pay the rent and mesne profits as decreed by the Trial Court and the suit filed by the plaintiff alone was competent. However, the First Appellate Court was of the view that the suit of the plaintiff having been initially filed on various grounds of eviction under M. P. Accommodation Control Act, 1961 could not have been decreed on the basis of determination of tenancy of the defendant under Section 106 of Transfer of Property Act, without there being any special pleading in this regard and without affording any opportunity to the defendant to meet out such a case. Accordingly, the relief of eviction granted to plaintiff by the Trial Court was set aside in first appeal by the impugned judgment and decree. Plaintiff has, therefore, preferred this second appeal. ( 6. Accordingly, the relief of eviction granted to plaintiff by the Trial Court was set aside in first appeal by the impugned judgment and decree. Plaintiff has, therefore, preferred this second appeal. ( 6. ) THIS second appeal was admitted on the following substantial question of law:-"whether in the facts and circumstances of the case, the finding recorded by the learned First Appellate Court that the respondent is not liable to be evicted despite admission of service of quit notice under Section 106 of the Transfer of Property Act by the respondent merely on the ground that the appellant had taken grounds for eviction under M. P. Accommodation Control Act, 1961 by mistake, when the same was not applicable to Village babai, and such grounds were superfluous ?" ( 7. ) LEARNED Counsel for the appellant submitted that the provisions of m. P. Accommodation Control Act, 1961 Undisputedly did not apply to Tehsil babai, where suit accommodation was situated, therefore, the various grounds of eviction taken in the suit under M. P. Accommodation Control act, 1961 were superfluous and the decree for eviction under the general law could not be denied to him on this ground. Learned Counsel for the appellant further submitted that it was specifically pleaded in the plaint that demand cum quit notice dated 21-9-90 was served on the defendant, whereby his tenancy was determined and he was called upon to vacate the suit shop as well as to pay the arrears of rent due. The service of demand cum quit notice was also not disputed by the defendant in the written statement. Rather he had challenged the validity of the notice as well as termination of his tenancy under Section 106 of the transfer of Property Act by way of specific pleadings in Para 2-A of the written statement. In view of such pleadings of the parties, the submission is, the First appellate Court gravely erred in holding that relief of eviction could not be granted to the plaintiff under the provisions of Transfer of Property Act for want of such pleadings and that defendant was deprived of opportunity to contest the claim of eviction under the General Law. ( 8. ( 8. ) LEARNED Counsel for the respondent, on the other hand, submitted that the plaintiff had ab initio sought the relief of eviction on the various ground as contemplated under Section 12 (1) of M. P. Accommodation Control Act, 1961 and no claim for eviction on the basis of termination of tenancy of the defendant under Section 106 of Transfer of Property Act was ever put forth in the suit; even no issue on the termination of his tenancy was framed in the suit. As such, the defendant was not able to challenge the validity of notice and the termination of his tenancy and there was no occasion for him to contest and defend the claim of eviction under the general law in absence of specific pleadings in this regard. The First Appellate Court was, therefore, justified in reversing the decree for eviction passed by the Trial Court. ( 9. ) THE First Appellate Court relying on the law laid down by the Apex court in the case of Messrs. Trojan and Co. Vs. R. M. N. N. Nagappa Chettiar, reported in AIR 1953 SC Page 235, came to hold that the decision of a case cannot be based on the grounds outside the pleadings of the parties and the claim for eviction under the provisions of Transfer of Property Act was not pleaded in the suit; rather his claim for eviction was based on the grounds under the provisions of M. P. Accommodation Control Act, 1961 and the parties went to trial with such pleadings; therefore, plaintiffs suit for eviction could not be decreed under the provisions of Transfer of Property Act in absence of pleadings. ( 10. ) HOWEVER, it is manifest from the record that it was specifically pleaded in Para 5 of the plaint that plaintiff had served demand cum quit notice dated 21-9-90 through his Counsel on the defendant calling upon him to pay the arrears of rent as well as to vacate the suit shop at the end of the tenancy month ending on 31-10-90. The receipt of this notice was also not disputed in the written statement; rather a suitable reply to this notice was claimed to have been given by the defendant. The receipt of this notice was also not disputed in the written statement; rather a suitable reply to this notice was claimed to have been given by the defendant. It is also evident from perusal of the written statement that defendant had also challenged the validity of termination of his tenancy by this notice in terms of Section 106 of Transfer of Property Act by way of specific pleading in Para 2-A of the written statement. It was also pleaded in Para 2-A that the tenancy of the defendant had not been validly determined and plaintiff was not entitled to get the possession of the tenanted shop. ( 11. ) IN view of the aforesaid pleadings, it could not be said that the plaintiffs claim for eviction on the basis of termination of tenancy of the defendant in terms of Section 106 of Transfer of Property Act was not pleaded by him or denied or contested by the defendant in the written statement. Thus, it could not be said that plaintiffs claim for eviction of the defendant under the general Law travelled beyond the pleadings of the parties. ( 12. ) NO doubt, the grounds of eviction in terms of certain provisions of section 12 (1) of M. P. Accommodation Control Act, 1961 were also taken and pleaded in the plaint, though the provisions of M. P. Accommodation Control act, 1961 Undisputedly did not apply to Tehsil Babai of District Hoshangabad, where the suit shop was situated, but that could not be an impediment for decreeing the claim for eviction under the General Law. The mere non-quoting or recital of the provision, i. e. , Section 106 of Transfer of Property Act under which the notice determining the tenancy of the defendant was sent to him, could not be a ground to deny or defeat the claim of the plaintiff for eviction under the General Law, if the tenancy of the defendant was validly determined by a quit notice in terms of Section 106 of Transfer of Property Act, the foundation of which was laid in the plaint. The rules relating to pleadings, as envisaged under Orders 6 and 7 of CPC, also do not require the provisions of law to be specifically quoted under which the relief is claimed. ( 13. The rules relating to pleadings, as envisaged under Orders 6 and 7 of CPC, also do not require the provisions of law to be specifically quoted under which the relief is claimed. ( 13. ) IT is also evident from the testimony of plaintiff (P. W. 6) that he had sent a registered notice dated 21-9-90 to the defendant through his Counsel to vacate the suit shop by registered post, copy of which is Exh. P-9, vide postal receipt (Exh. P-10), which was received by the defendant vide acknowledgment (Exh. P-ll ). The receipt of this notice was also not disputed; rather the defendant also suitably replied to it vide Exh. D- 1. The postal receipt (Exh. P-10)and acknowledgment receipt (Exh. P-ll) also indicate that the notice (Exh. P-9)was sent on 21-9-90 and it was received by the defendant on 22-9-90. On a bare perusal of notice (Exh. P-9), it is clear that the tenancy of the defendant by this notice was determined by the end of tenancy month ending on October, 1990. Thus, it was evident that 15 days clear notice determining the tenancy of the defendant by the end of tenancy month was served on him in accordance with the provisions of Section 106 of Transfer of Property Act and thereby his tenancy was validly determined. ( 14. ) THUS, after valid determination of the defendants tenancy under section 106 of Transfer of Property Act, decree for eviction could well be passed against defendant under General Law when the provisions of special enactment controlling the eviction of the tenants as provided in M. P. Accommodation control Act, 1961 Undisputedly did not apply to the suit accommodation. ( 15. ) THE submission of learned Counsel for the respondent, that on account of certain grounds of eviction taken under M. P. Accommodation control Act, 1961 defendant could not meet out the claim for eviction under general Law, also sans merit. Counsel for both the parties conceded that the provisions of M. P. Accommodation Control Act, 1961 were not applicable to the suit accommodation, it being situated at Tehsil Babai. The same was also conceded before the Trial Court. When the provisions of M. P. Accommodation control Act, 1961 were Undisputedly inapplicable to the suit accommodation, the grounds of eviction taken in the suit under the aforesaid Act were virtually superfluous and redundant. The same was also conceded before the Trial Court. When the provisions of M. P. Accommodation control Act, 1961 were Undisputedly inapplicable to the suit accommodation, the grounds of eviction taken in the suit under the aforesaid Act were virtually superfluous and redundant. More so, as stated above, the pleadings of service of quit notice on the defendant determining his tenancy and calling upon him to vacate the suit shop were there in the plaint, which were also challenged by the defendant specifically in Para 2-A of the written statement. It indicated that defendant was contesting the suit on this count as well. Consequently, such a plea could not be allowed to prevail that because of grounds of eviction taken under the M. P. Accommodation Control Act, 1961 in the plaint, defendant was deprived of defending the case or contesting the claim for eviction under the general Law. If the defendant remained under any misconception due to pleadings or evidence led on the grounds under the provisions of M. P. Accommodation Control Act, 1961, which were inapplicable, that could not be a valid reason to deny the legal remedy to the plaintiff available under General law. The mere fact that no issue on the determination of the tenancy of defendant was framed in the suit, is also of no consequence, particularly when the service of notice, which determined the tenancy of the defendant, was not disputed in the written statement. ( 16. ) IN the wake of aforesaid, the First Appellate Court erred in law in holding that the defendant/respondent was not liable to be evicted under the general Law in the facts and circumstances of the case. ( 17. ) APPEAL, therefore, deserves to be allowed. Plaintiff/appellant is found entitled to relief of possession of the suit shop from the defendant/ respondent on the basis of determination of his tenancy. ( 18. ) THE decree of First Appellate Court reversing the decree of Trial court for possession of the suit shop is set aside. It is directed that respondent/ defendant shall hand over the vacant possession of the suit shop to the appellant/plaintiff within four months from today. No order as to costs. Second Appeal allowed.