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2008 DIGILAW 950 (MP)

SUBHASH CHAND JAWA v. SUBHASH GUPTA

2008-07-31

K.K.LAHOTI

body2008
Judgment K.K.Lahoti, J. ( 1. ) The defendant/tenant who suffered a decree of eviction under section 12 (1)(a), (b) and (f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as Act for short) by the Court below has preferred this appeal. ( 2. ) The trial Court, 9th Civil Judge Class-II, Jabalpur in civil suit no.491-A/1997 dated 3.8.2001 decreed the suit against appellant and respondent no.2 Mohd. Naseer, against which an appeal was preferred by the appellant before the Vth Additional District Judge, Jabalpur as Crvil Appeal No.6-A/2002 which was dismissed on 30.6.2004. ( 3. ) Learned counsel for appellant submitted :- (a) That the appellate Court erred in rejecting the application filed by appellant under Order 6 Rule 17 C.P.C., by which the appellant alleged that respondent Anil Kumar Gupta purchased shop from Dilip Kumar Sahu in the name of his brother Rajesh Kumar, in which Anil Kumar was carrying on hotel business and the necessity if any had come to an end, but the appellate Court considering the merits of the application rejected which was not permissible. Reliance is placed to a judgment of this Court in Yadunandan Vs. Madhusingh (1988 II MPWN 78). (b) That the Court below erred in arriving at a finding that the appellant had sub-let the shop to respondent no.2 Mohd. Nazeer while the fact was that appellants son Sonu Suresh Jawa was seriously sick and appellant was busy in his treatment. During this period to take care of shop respondent no.2 was sitting at the shop for the appellant. In fact because of aforesaid circumstances, Mohd. Nazeer was sitting at the shop and it was not an act of sub-tenancy. In respect of ailment of Sonu Suresh Jawa appellant filed documents before the Trial Court, but the aforesaid documents were rejected which had caused serious prejudice to the appellant. This appeal deserves to be allowed by extending an opportunity to the appellant to prove the aforesaid documents in support of his contention. (c) That there was default in payment of monthly rent as required under section 13(1)ofthe Act, but it was because of ailment of Sonu Suresh Jawa for whose treatment appellant was busy and continuously stationed at Delhi. This appeal deserves to be allowed by extending an opportunity to the appellant to prove the aforesaid documents in support of his contention. (c) That there was default in payment of monthly rent as required under section 13(1)ofthe Act, but it was because of ailment of Sonu Suresh Jawa for whose treatment appellant was busy and continuously stationed at Delhi. In these circumstances there was default in payment of rent and appellant filed an application before the trial Court and also before appellate Court, but the Court below rejected the application without considering the merits of these applications. It is submitted that on the aforesaid grounds this appeal may be admitted for final hearing. ( 4. ) To appreciate the aforesaid contention of the appellant factual position in the present case may be looked into. It was not in dispute that appellant was tenant of the disputed shop @ Rs.700/- per month and his tenancy was monthly in accordance with the English Calendar month. The plaintiff sought eviction of appellant on the ground that appellant was in arrears of rent of Rs.3,800/- which was not paid by the appellant inspite of demand notice as required under section 12(1)(a) of the Act. That the suit shop was sub-let by the appellant to Mohd. Naseer, without permission of the landlord respondent no.2, who was carrying on his business of Chappals in the suit shop. That the suit accommodation was required by the landlord for starting hotel business to his son Anil Kumar Gupta, who was major and unemployed. In the township of Jabalpur, plaintiff was not having any other suitable accommodation in his possession for the need. On the aforesaid grounds the suit was filed for eviction under section 12(1)(a) (b) and (f) of the Act. ( 5. ) The appellant and respondent no.2 filed separate written statements. The appellant contested the suit on the ground that appellant was never denied to pay the rent, but the plaintiff himself had refused to accept the money orders sent by the appellant. After filing of suit the appellant had deposited all the arrears of rent in CCD before the trial Court. The appellant was not available at Jabalpur because of ailment of his son. The notice of plaintiff was received by defendant no.2 because he was taking care of business of appellant. In fact appellant himself was carrying on Chhappal business. After filing of suit the appellant had deposited all the arrears of rent in CCD before the trial Court. The appellant was not available at Jabalpur because of ailment of his son. The notice of plaintiff was received by defendant no.2 because he was taking care of business of appellant. In fact appellant himself was carrying on Chhappal business. The defendant no.2 is his friend and in the same capacity he was helping the plaintiff in the business. The defendant no.2 was not parted with the accommodation as sub-tenant. The plaintiff was having 5 other accommodations in which other tenants were in possession. The plaintiffs son Anil Kumar was also running business. On these grounds the suit was contested. ( 6. ) The trial Court framed issues and after recording evidence on 12.11.1999 arrived at following findings :- (i) That the appellant was in arrears of rent and had not paid rent to the landlord inspite of demand notice. (ii) That the appellant failed to comply with section 13 of the Act by not depositing rent regularly month to month. ( 7. ) That against the judgment and decree dated 12.11.1999 the appellant preferred an appeal before the 11th Additional District Judge, Jabalpur which was registered as Civil Appeal No.96-A/1999, who by judgment and decree dated 6.12.2000 remanded the case to the trial Court. The trial Court as per the direction of appellate Court permitted appellant to amend the written statement, again proceeded with the trial and by judgment and decree dated 3.8.2001 decreed the suit of plaintiff/respondent with the findings that suit accommodation was bonafide required by the landlord for starting business of hotel for his son Anil Kumar, for which he was not having any other accommodation in the township of Jabalpur. ( 8. ) Against the judgment and decree the appellant preferred First Appeal No.6A/2002. The appellate Court after hearing both the parties re-appreciated the evidence and arrived at following findings :- (I) That the suit accommodation was required by the landlord for his major son Anil Kumar Gupta. (II) That Anil Kumar Gupta was not having any other business in the township of Jabalpur. The suit was filed on 8.12.1997 on which date Anil Kumar Gupta was sitting alongwith his father who was carrying on his hotel business in a tenanted accommodation. (II) That Anil Kumar Gupta was not having any other business in the township of Jabalpur. The suit was filed on 8.12.1997 on which date Anil Kumar Gupta was sitting alongwith his father who was carrying on his hotel business in a tenanted accommodation. (III) The appellate Court also considered the application filed by appellant under Order 6 Rule 17 C.P.C., in para 16 of the judgment and found that alleged shop was purchased by Rajesh Gupta from Dilip Kumar Sahu. The registered sale deed was also produced before the appellate Court which reflects that in fact Rajesh Kumar Gupta purchased the property. In the suit shop Rajesh Kumar Gupta had commenced his business of hotel and in this regard he also obtained permission for hotel business from Municipal Corporation and the licence was also in the name of Rajesh Kumar Gupta. The appellate Court considering the aforesaid found that proposed amendment was not necessary for the decision of the case and rejected it. (IV) So far as deposit of rent by the appellant before the trial Court is concerned, the appellate Court in para 19 to 22 considered this aspect and found in para 19 that there were several defaults on the part of appellant, who had not deposited rent as required under section 13(1) of the Act. Till the decision by the trial Court no application was filed seeking condonation of delay. After the remand the application was filed, but because of limited remand by the appellate Court who directed the trial Court to decide issue no.4 alone the application was rightly rejected. The appellate Court considered the application on merits in para 22 of the judgment found that no document in support of this contention was filed by the appellant and rejected the prayer. In para 19 of the judgment the appellate Court found that defaults were continuing since the date of filing of suit till 2000, when initially the suit was decreed. The applicants application was not found on merit and relying on the judgment of Jamnalal and others Vs. Radheshyam 2000(2) MPLJ 385 and Sayeda Akhtar Vs. Abdul Ahad ( AIR 2003 SC 2985 ) found that there were more than 1 defaults by the appellant and such conduct of appellant cannot be condoned by allowing the aforesaid application and rejected the prayer. Radheshyam 2000(2) MPLJ 385 and Sayeda Akhtar Vs. Abdul Ahad ( AIR 2003 SC 2985 ) found that there were more than 1 defaults by the appellant and such conduct of appellant cannot be condoned by allowing the aforesaid application and rejected the prayer. The appellate Court considered the evidence in respect of grounds enumerated in 12(1)(b) of the Act in para 23 to 29 of the judgment and found that when the shop was let out to the appellant he was carrying on his electrical goods business, but thereafter the shop was sub let to Nazeer, who was carrying on his Chappal business. The appellate Court also considered the contention of the appellant that in fact the appellant was carrying on his Chappal business, but found that no document in this regard was filed by the appellant before the trial Court, while the appellant had admitted existence of various documents in this regard. The appellate Court also found a glaring fact that alongwith Naseer, his son was also sitting in the shop and the shop was in fact in possession of Naseer, who was running Chappal business in the shop. The appellate Court in para 28 of the judgment also considered that appellant failed to explain when he closed electrical goods business and started Chappal business, which was a material fact which ought to have been proved. The appellate Court drawing adverse inference against the appellant for non-production of registration of the shop, purchase and sale bills, account of shop, sale tax registration, Municipal Corporation registration arrived at a finding that the shop was sub-let to Naseer who was running his business and in fact the appellant was not running the business. On these grounds the decree under section 12(1)(b) of the Act was affirmed. (V) So far as bonafide necessity for the business of son of plaintiff Anil Kumar is concerned, the appellate Court reconsidering the entire evidence and recorded finding that in para 12 to 18 of the judgment that the suit shop was required bonafide by the landlord for starting business of hotel of his son Anil Kumar Gupta and affirmed the finding of trial Court. ( 9. ( 9. ) Though the appellant has assailed the aforesaid findings, but the fact remains that when a suit for eviction was filed on the ground of arrears of rent it was the duty of appellant to deposit the rent as required under section 13 (1) of the Act. If there were default on the part of appellant, appellant ought to have filed application forth with before the trial Court explaining the circumstances in which appellant could not deposit the rent. But till the decision by the trial Court on 12.11.1999 no such application was filed and for the first time before the appellate Court such application was filed. The appellant ought to have explained each and every default by filing affidavit and documents in support of his contention, but no such recourse was taken by the appellant. Though some document in respect of treatment of Sonu Suresh Jawa are available in the file, but the aforesaid document does not co-relate with the period of default in which appellant failed to deposit monthly rent before the trial Court. Apart from this such prayer was made belatedly before the appellate Court. Appellant was contesting a suit under section 12 (1)(a) of the Act and ought to have remained vigilant in depositing the rent. When the sword was hanging on the appellant of eviction some diligence was required from the appellant. ( 10. ) The Apex Court in Sayeda Akhtar (supra) and Jamnalal and others Vs. Radheshyam 2000 4 SCC 380 considering the provisions of section 13(1) of the Act held that such application ought to have been filed immediately and any such application which suffers from delay or laches was not entertainable. In these circumstances, if the appellant had failed to file such an application promptly before the trial Court, the Court below rightly rejected the aforesaid application, in which no fault is found. So far as sub-tenancy is concerned, the Court below considered the evidence minutely and appellate Court in this regard has re- appreciated the evidence and recorded finding in para 23 to 31 of the judgment, in which no error is found. In absence of any error or perversity, such finding of fact cannot be interfered in second appeal. ( 11. So far as sub-tenancy is concerned, the Court below considered the evidence minutely and appellate Court in this regard has re- appreciated the evidence and recorded finding in para 23 to 31 of the judgment, in which no error is found. In absence of any error or perversity, such finding of fact cannot be interfered in second appeal. ( 11. ) So far as bonafide necessity of landlord for the business of Aran Kumar is concerned the appellant has given much emphasis on consideration of application under Order 6 Rule 17 C.P.C., before the appellate Court, alleging that the aforesaid application was not properly considered and wrongly rejected on merits. The aforesaid contention also has no substance. The appellant sought amendment in the written statement alleging certain allegations and to consider the application it was necessary on the part of appellate Court to look into the averments made in the application. Merely an application was filed alleging certain facts against the landlord by itself was not sufficient to set aside the judgment and decree of the trial Court and to remand the case. From the perusal of facts stated by the appellant and reply filed by respondents, if the appellate Court arrived at a finding that application was frivolous and the grounds stated in the amendment application needs not to be enquired into, the appellate Court was right in considering the averments of application and rejecting it. When a decree of eviction was passed against the appellant and even after initial remand the findings were confirmed, the appellate Court rightly observed the aforesaid precaution that unnecessary remand is not made. In these circumstances, if the appellate Court after considering , the sale deed and license which was issued by the Municipal Corporation found that the aforesaid application was without merit and rejected it, no fault is found. The shop was purchased by Rajesh Kumar Gupta by registered sale deed in which he was carrying on hotel business after obtaining licence from Municipal Corporation, these facts supported by the documents were sufficient to reject the application, in which no error is found. ( 12. ) In the result, this appeal is found without merit and does not involve any substantial question of law for consideration of this Court. This appeal is accordingly dismissed at admission stage, with no order as to costs. Appeal dismissed.