Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 898 (MP)

Ahuja Saw Mills v. Santosh Engineering Works

2007-08-16

A.K.SHRIVASTAVA

body2007
JUDGMENT 1. The defendant has knocked the door of this Court by preferring this appeal against plaintiff whose suit has been decreed by the trial Court and the first appeal filed by the defendant has also been dismissed by the impugned judgment and decree. 2. The plaintiff firm filed suit for eviction and for recovery of arrears of rent and also for mesne profit against defendant on the averment that plaintiff firm is a registered partnership firm. The defendant is also a registered partnership firm. According to the plaintiff, a saw mill was given to the defendant on hire at the rate of Rs.l,100/- p.m. on the basis of an oral agreement which later on reduced into writing on 18.8.1979 and as per the terms and conditions of the agreement the defendant was required to deliver possession back to the plaintiff but he failed to comply the said condition. According to the plaintiff, the provisions of the M.P. Accommodation Control Act, 1961 (in short "the Act") are not applicable and, therefore, the plaintiff firm is not at all required to establish any of the ground envisaged under section 12(1) of the Act. In the alternative it has also been prayed that if the Court comes to the conclusion that the provisions of the Act are applicable, even then since the plaintiff is in bona fide need of the suit accommodation and the plaintiff firm has no reasonably suitable accommodation of its own, the suit be decreed under section 12(1)(f) of the Act. It has also been pleaded that the defendant is in arrears of rent as well as the title of plaintiff has been denied, therefore, a decree of eviction on the ground under section 12(1)(a) and (c) of the Act be also passed. 3. In the plaint, there is pleading of the plaintiff that notice was given to defendant to quit the premises which was received by defendant on 27 .8.1982, but, the defendant has not handed over the possession of the saw mill and, therefore, the plaintiff is constrained to file the present suit. 4. The defendant denied the plaint averments and submitted that the firm of plaintiff is not a registered partnership firm and it has been denied that the provisions of the Act are not applicable. 4. The defendant denied the plaint averments and submitted that the firm of plaintiff is not a registered partnership firm and it has been denied that the provisions of the Act are not applicable. It has also been pleaded in the written stat ement that in absence of any legal notice as required under the law to determine the tenancy of the premises let out to defendant firm, the suit of plaintiff is not maintainable. On these premised submissions, it has been contended that the suit be dismissed. 5. Learned trial Court after framing the necessary issues, inter alia, came to hold that: (i) That disputed saw mill, tin shed and plot does not come under the ambit and sweep of section 2(a) of the Act and the provisions of the Act are not applicable in the present case; (ii) the rent is due on defendant w.e.f. October, 1982; (iii) the plaintiff is entitled to mesne profit w.e.f. December, 1982 at the rate of Rs.3,000/- per month; (iv) the plaintiff firm is a registered partnership firm; (v) the grounds under section 12(l)(a) and (c) of the Act are proved. Learned trial Court decreed the suit of plaintiff accordingly. The defendant being dissatisfied by the decree of trial Court filed first appeal which has been dismissed by the impugned judgment and decree with partial modification that plaintiff is entitled to decree of mesne profits from the date of judgment of trial Court i.e. 15.5.2001 and not from December, 1982. 6. In this manner, the present appeal has been filed by the defendant. 7. This Court on 30.9.2002 admitted the appeal on the following substantial questions of law: "(i) Whether the Court below erred in arriving at a finding that the running business was leased out while from the perusal of EX.D-1 and the evidence of plaintiff, it appears that the plaintiff has leased out the accommodation including the shed and other property standing on the plot in which saw mill was running? (ii) Whether the plaintiff is entitled for mesne profit at the rate of Rs.3,000/- per month from the date of judgment and decree while the agreed rent was Rs.1,100/- per month?" 8. (ii) Whether the plaintiff is entitled for mesne profit at the rate of Rs.3,000/- per month from the date of judgment and decree while the agreed rent was Rs.1,100/- per month?" 8. The contention of Shri Verma, learned counsel for the appellant, is that in order to ascertain whether the provisions of the Act are applicable or not, it was incumbent upon the two Courts below to put emphasis on the dominant intention for which the premises was let out and since it is borne out from the evidence of PW 1 Gurjeet Singh and one can easily say and infer from his testimony that it was not saw mill which was let out but, indeed, the accommodation was let out and if that would be the position, according to learned counsel, since the dominant intention was to let out the accommodation, therefore, the provisions of the Act are applicable and the two Courts below erred in substantial error of law in decreeing the suit of plaintiff. In support of his contention, learned counsel has placed reliance on the Division Bench decision of this Court Anand Cadre v. Comtibai and others [ 1983 JLJ 265 ]. It has also been put forth by learned counsel for the appellant that the decision of Supreme Court Uttamchand v. S.M. Lalwani [ AIR 1965 SC 716 ], which has been placed reliance by learned first appellate Court also speaks about the dominant intention of the premises which is let out and, therefore, according to learned counsel the said decision is not against him and indeed he is also placing reliance on it. 9. Further it has been propounded by learned counsel that mesne profit at the rate of Rs.3,000/- per month could not have been passed because the agreed rent is Rs.l,100/- per month. On these premised submissions, it has been argued by learned counsel that this appeal be allowed by dismissing the suit. 10. By inviting my attention to application (IA No. 1587/2006) filed under Order 100(5), CPC, it has been submitted by learned counsel that this Court vide order dated 21.8.2006 directed to decide the said application at the time of final hearing. 10. By inviting my attention to application (IA No. 1587/2006) filed under Order 100(5), CPC, it has been submitted by learned counsel that this Court vide order dated 21.8.2006 directed to decide the said application at the time of final hearing. To press this application it has been submitted by learned counsel that since in the disputed property a saw mill is established, therefore, it would mean that the premises if let out for manufacturing purpose and because a valid notice has not been given under section 106 of the Transfer of Property Act terminating the tenancy validly, for this reason also the suit ought to have been dismissed. 11. On the other hand, Shri N.K. Patel, learned senior counsel for the respondent No.1, submits that the dominant intention of letting out the establishment is saw mill and not the shed and the premises in which the saw mill is installed and wooden logs are kept and, therefore, the two Courts below did not err in decreeing the suit of plaintiff. In support of his contention, learned senior counsel has placed reliance on the decision of Supreme Court Koti Saroj Anamma and another v. Jonnalagada Malleswara Rao [1995( 1) UJ (SC) 723]. He has also placed reliance on the another decision of the Supreme Court Uttamchand (supra). 12. By replying the argument of learned counsel for the appellant on the application under section 100(5), CPC, it has been argued by Shri Patel, learned senior counsel for the respondent, that tenancy is not yearly and therefore, the notice is valid. 13. Shri R.S. Jaiswal, learned senior counsel for respondent No.2, has adopted the argument submitted by Shri Patel, learned senior counsel. Regarding substantial question of law No.1 : 14. True, it has come in the testimony of PW 1 Gurjeet Singh in para 14 that in the premises, there are four sheds, saw mill and the open area and all these constitute suit premises let out to the defendant. In para 26 of his testimony, he has stated that he closed the business of saw mill and let out it to the defendant-appellant. But this would not mean that when the suit premises was let out to the defendant the saw mill was not in the running condition and this is also not the pleading of the defendant that the saw mill was not let out in running condition. But this would not mean that when the suit premises was let out to the defendant the saw mill was not in the running condition and this is also not the pleading of the defendant that the saw mill was not let out in running condition. It is a matter of common knowledge that a saw mill will never be established under the open sky, obviously some sheds are required to be erected for its protection and similarly a closed place is also required to keep the logs of the wood in the bulk so that it may be protected from the rains. In the same manner, some place is required in the form of office where the business of a saw mill is to be carried out and if a part is used as office of the saw mill, it would not mean that the accommodation was let out and not the saw mill. According to me, the dominant intention in such a situation would be that the saw mill was let out and to carry out the function of saw mill and the business all these type of premises are essentially required and without all these facilities a saw mill cannot run. The position would have been quite different if some accommodation would have been let out to a tenant in which later on he would have established a saw mill. But after considering the findings of the two Courts below which are based on appreciation of evidence and particularly putting emphasis on the evidence of plaintiff-Gurjeet Singh and that of defendant Omprakash Ahuja, it cannot be said that the suit premises was let out for any other purpose, except for the purpose to run the saw mill. 15. At the cost of repetition, I may again reiterate here that there is no pleading of the defendant that when the premises was let out to him, at that juncture, saw mill was not in running condition and only premises was let out to him. When defendant Om Prakash Ahuja (DW1) was cornered with this situation, very conveniently in his testimony he has said that because it was not asked to him, therefore, in the written statement such plea was not taken. To me, this cannot be said to be any explanation. When defendant Om Prakash Ahuja (DW1) was cornered with this situation, very conveniently in his testimony he has said that because it was not asked to him, therefore, in the written statement such plea was not taken. To me, this cannot be said to be any explanation. Since there is no pleading of the defendant that indeed suit premises (accommodation) was let out and not the saw mill, I am of the view that the evidence of defendant in this regard is not required to be looked upon. Even on going through Ex.D-1, it cannot be said that the accommodation was let out and not the saw mill. 16. In order to take out the grain from the chaff, dominant intention and the purpose for which the suit premises is let out, is to be seen. By keeping the testimony of PW1 Gurjeet Singh and that of defendant Omprakash Ahuja (DW1) in juxtaposition and reading them conjointly, the only inference which could be gathered is that the dominant intention is to let out the saw mill and not the accommodation. It is also proved that saw mill was let out in the running condition. The statement in para 26 of PW 1 Gurjeet Singh would not mean that the saw mill was not in running condition. The only inference which can be drawn is that his father stopped the business of saw mill but it cannot be stretched up to the extent that the saw mill was not in the working condition. The dominant intention and the purpose to let out the premises is to run the saw mill and indeed the saw mill was leased out. In the case of Koti Saroj Anamma and another (supra), it was held by the Supreme Court that in order to run the saw mill if zinc sheets are erected for the purposes of protection of saw mill, still the dominant purpose would be to carry out the affairs of saw mill and, therefore, rent control legislation was not applicable. Similarly, the Supreme Court in earlier decision Uttamchand (supra), has also held the same principle. Similarly, the Supreme Court in earlier decision Uttamchand (supra), has also held the same principle. After perusing the evidence placed on record, I have no scintilla of doubt that the dominant intention to let out the premises is to run the saw mill and, therefore, the two Courts below have rightly arrived at a finding of fact that the suit premises was let out to the defendant to run the saw mill. The findings of two Courts below are based on correct appreciation of the evidence and are not perverse and, therefore, they are not required to be interfered as they are pure findings of facts. 16A- the Division Bench decision of this Court Anant Gadre (supra), is not at all applicable in the present factual scenario for the simple reason that the plaintiff of that case never carried on the business of exhibition of the film in the Cinema Hall and the cinema hall was equipped with fans, furniture and some fittings. Even the machinery and projector to exhibit the film was also not installed and the same was installed by the defendant and thereafter exhibition of films started in the cinema hall. In those facts and circumstances, the Division Bench of this Court came to the conclusion that real intention of the plaintiff was to let out the accommodation and, therefore, the provisions of the Act were found to be applicable. However, the present case is just reverse. In the case in hand the saw mill was given. Even after going through EX.D-l one cannot say that the accommodation was let out, but it is inferred that saw mill was let out. 17. If for the sake of argument, it is held that the provisions of the Act are applicable (though they are not applicable) even then the plaintiff is entitled to decree of eviction because the trial Court decreed the suit of plaintiff under section 12(l)(c) as well as under section 12(1)(a) of the Act. The defendant has also not complied with the provisions of section 13(1) of the Act. Though the ground of eviction under section 12(1)(c) of the Act was challenged by the appellant firm in the first appeal but that was decided against it. The defendant has also not complied with the provisions of section 13(1) of the Act. Though the ground of eviction under section 12(1)(c) of the Act was challenged by the appellant firm in the first appeal but that was decided against it. On going through the judgment of learned first appellate Court, it appears that eviction decree under section 12(1)(a) passed by trial Court was not pressed before the appellate Court and, therefore, the decree of trial Court on the said ground stands unchallenged and became final. This Court while admitting the appeal did not frame any substantial question of law in regard to the decree allowed to the plaintiff under section 12(1)(a) and (c) of the Act and, therefore, since the decree of eviction under these grounds also stand, the plaintiff is entitled to execute the decree of eviction. 18. The substantial question of law No.1 is, thus, answered that the two Courts below did not err in arriving at a finding that running business of saw mill was leased out and on perusal of Ex.D-1 as well as pleadings of the parties, one could infer that for the purpose to carry out the affairs of running saw mill, the shed and other property standing on the plot was leased out to the defendant. Regarding substantial question of law No.2 : 19. In the present case it is no more in dispute that agreed rate of rent is Rs.l,100/- per month. It is also an admitted fact that appellant-defendant is not the trespasser. Indeed the saw mill was hired to him on monthly rental basis. The plaintiff can obtain the mesne profit if the defendant has committed a wrong from very beginning. In the present case the possession of defendant-appellant at the initial stage was not wrongful, at the most, it can be said that after giving notice to quit, the defendant was unauthorisedly retaining the suit property and in that situation I am of the view that when the initial entry of the defendant was not wrongful, therefore, the plaintiff is not entitled to obtain mesne profit higher to the rate of agreed rent which is Rs.l,100/- per month. Thus, the two Courts below erred in law in granting mesne profit at the rate of Rs.3,000/- per month which exceeds the agreed rent. 20. Thus, the two Courts below erred in law in granting mesne profit at the rate of Rs.3,000/- per month which exceeds the agreed rent. 20. Substantial question of law No.2 is, thus, answered that the plaintiff is not entitled to mesne profit at the rate of Rs.3,000/- per month but he is entitled to mesne profit at the rate of Rs.1,100/- per month. 21. Resultantly, the appeal succeeds in part, the judgment and decree passed by learned two Courts below, so far as it relates to eviction of defendant-appellant from the suit premises passed by two Courts below is hereby affirmed. However, the plaintiff is entitled to the mesne profit at the rate of Rs.l,100/- per month in place of Rs.3,000/- per month. The mesne profit at this rate be paid from the date a directed by learned first appellate Court. Looking to the facts and circumstances, the parties are directed to bear their own costs of this appeal.