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Madhya Pradesh High Court · body

2009 DIGILAW 335 (MP)

VIJAY KUMAR SEN v. GOVIND PRASAD

2009-03-17

A.K.SHRIVASTAVA

body2009
Judgment ( 1. ) THIS appeal has been filed by defendants assailing the judgment and decree passed by two Courts below decreeing the suit of plaintiff on the ground envisaged under Section 12 (l) (f) of the M. P. Accommodation Control act, 1961 (for brevity the Act ). ( 2. ) IN brief the case of plaintiff is that appellants are his tenants and they are running a shop owned by the plaintiff and which has been shown as A,b,c, D in the plaint map under red lines. According to the plaintiff, the building consisting of the suit shop is near about 70 years is old and it needs reconstruction, therefore, the plaintiff got the plan sanctioned from the Municipal Corporation, Jabalpur. ( 3. ) IT has also been pleaded in para 8 of the plaint that plaintiff has to construct a shop of a dimension marked by letters G,h,e and F in the plaint map bigger than the one to be vacated by the defendants as per plan sanctioned by the Municipal corporation. Further it has been pleaded by plaintiff in para 9 of the plaint that the plaintiff is having only one adult son Shashin living with him and who has passed his M. Com about 7 years ago but but not getting any job or service despite his full efforts. The plaintiff is constructing the said shop marked with G,h,e,f for occupation of his son and to run a shop therein to earn his livelihood and for that purpose he has no other non-residential accommodation of his own except the suit shop in the city of Jabalpur. On these premised pleadings, it has been prayed by the plaintiff that the suit be decreed. ( 4. ) THE learned Trial Court after framing necessary issues decreed the suit. The appeal which was filed by defendants has been dismissed by the impugned judgment and decree. ( 5. ) IN this manner, the present appeal has been filed by defendants assailing the impugned judgment and decree of two Courts below. ( 6. ) THIS Court on 5. 10. 2004 admitted the second appeal on the following substantial questions of law :- " (i) Whether the First Appellate Court erred in substantial error of law in not deciding the application filed by the appellants under Order 41 Rule 27 CPC ? ( 6. ) THIS Court on 5. 10. 2004 admitted the second appeal on the following substantial questions of law :- " (i) Whether the First Appellate Court erred in substantial error of law in not deciding the application filed by the appellants under Order 41 Rule 27 CPC ? (ii) Whether First Appellate Court erred in substantial error of law in rejecting the application of amendment filed by the appellants ? (iii) Whether by ignoring the facts narrated in the amendment application, the First Appellate Court erred in law, affirming the decree passed under Section 12 (l) (f) of M. P. Accommodation Control Act, 1961 ?" ( 7. ) THE contention of Shri R. K. Verma, learned counsel for the appellants is that the learned First Appellate Court erred in not deciding the application filed under Order 41 Rule 27 CPC. Further it has been argued that the learned First appellate Court erred in law in rejecting the application filed by the appellants under Order VI Rule 17 CPC and by ignoring the facts mentioned in the application, the decree passed by learned Trial Court under Section 12 (l) (f) of the Act which has been affirmed by learned First Appellate Court cannot be allowed to remain stand. ( 8. ) ON the other hand, Shri Siddhartha Patel, learned counsel for the respondent has argued in support of the impugned judgment and has submitted that the application under Order 41 Rule 27 CPC was filed but along with the application no documents were filed and therefore the learned First Appellate Court rightly did not pass. any order on that application. Further it has been argued by learned counsel for respondent that no application to amend the written statement was filed by appellants in the appellate court. The application which was filed by them was to amend the memo of appeal only. The contention of learned counsel is that despite the application was dismissed, the learned First Appellate Court considered the grounds which were taken in the application and therefore no prejudice has been caused to the appellants. The application which was filed by them was to amend the memo of appeal only. The contention of learned counsel is that despite the application was dismissed, the learned First Appellate Court considered the grounds which were taken in the application and therefore no prejudice has been caused to the appellants. By inviting my attention to the plaint map, it has been argued that if the contention of learned counsel for appellants is accepted, it would amount to ask the proposed customers to approach the plaintiffs shop by entering from a narrow gali and the defendants shall be permitted to run their business in the suit property which is on the front side of the road. The contention of learned counsel is that the tenant is nobody to curtail the choice of the landlord. On these premised submission, it has been argued by learned counsel that this appeal sans substance and the same be dismissed. ( 9. ) HAVING heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding Substantial Question of Law No. l : ( 10. ) ON going through the record of the learned First Appellate Court, his gathered that an application under Order 41 Rule 27 CPC was filed by appellant on 7. 4. 2003 mentioning that certain documents could not be filed in the Trial Court and it was prayed that the application be allowed. True, no order has been passed by learned first Appellate Court on this application. But, it is equally true that along with the application, no documents were filed. Apart from this, the description of the document which appellants intended to file has also not been mentioned in the application and therefore, according to me, even if the learned First Appellate court did not pass any order on the said application, no prejudice is caused to the defendant appellant. ( 11. ) THE substantial question of law No. 1 is thus answered accordingly. Substantial Questions of Law No. 2 and 3 : ( 12. ) ON going through the application filed under Order VI Rule 17 CP C filed by appellant before the First Appellate Court, it is gathered that they want to add one more ground as a ground in the memo of appeal. Substantial Questions of Law No. 2 and 3 : ( 12. ) ON going through the application filed under Order VI Rule 17 CP C filed by appellant before the First Appellate Court, it is gathered that they want to add one more ground as a ground in the memo of appeal. This application is not to amend the written statement on the contrary it was filed only to amend the appeal memo. The learned First Appellate Court has rejected this application but the contents of the application were considered in the impugned judgment. The ground which was proposed to be taken by way of amendment in the memo of appeal is that the son of plaintiff Shashin Dubey for whose need the suit accommodation is to be vacated, has started the business of ready made garments adjacent to the suit shop and therefore the need has come to an end. The learned First Appellate court from para 17 onwards has categorically held that the place where presently the son of plaintiff has started the business of readymade garments is on the rear side of the suit shop and the approach is from a narrow gali. On going through the plaint map, this Court finds that the suit shop is on the front side of the road and on the rear side of the suit shop, the place where the plaintiffs son is carrying on the business is situated. The approach of the place of business of plaintiffs son is from a narrow gali and, therefore, according to me, the learned First Appellate court rightly did not find that the need of plaintiff has come to an end as well as the place where the plaintiffs son is carrying on the business is suitable to him. The learned First Appellate Court held that after the demolition of the suit shop, some portion of the suit shop would be included in that premises in which plaintiffs son is carrying on the business and the view will be the front view of the road. Hence, to me, learned Courts below did not commit any error in decreeing the suit of plaintiff on the grounds envisaged under Section 12 (1) (f) and (h) of the Act. ( 13. ) THE substantial questions of law No. 2 and 3 are thus answered accordingly and decided against the appellants. ( 14. Hence, to me, learned Courts below did not commit any error in decreeing the suit of plaintiff on the grounds envisaged under Section 12 (1) (f) and (h) of the Act. ( 13. ) THE substantial questions of law No. 2 and 3 are thus answered accordingly and decided against the appellants. ( 14. ) THIS Court has decided all the substantial questions of law framed by this court against the appellants but it would be relevant to mention one important fact that the decree of eviction was passed on the ground envisaged under Section 12 (l) (f) and (h) of the Act. No substantial question of law on the ground envisaged under clause (h) of the Act has been framed and the said decree has attained finality. ( 15. ) RESULTANTLY, this appeal fails and is hereby dismissed with costs. Counsel fee Rs. 2000/- if pre-certified. ( 16. ) AT the last, Shri R. K. Verma, learned counsel for appellants submits that some breathing time may be given to appellants to vacate the suit premises because they are carrying on the business for last 50 years in the suit premises. Although this prayer has been vigorously opposed by learned counsel for plaintiff/respondent, but looking to the facts and circumstances that appellants are carrying on business for last 50 years in the suit premises, some time is granted to vacate the suit shop. The appellants are directed to vacate the suit shop on or before 30th April, 2010 on the following conditions: (i) the appellants shall desposit the entire rent as well as the costs of two courts below if any due, in the trial Court on or before 30/4/2009; new INDIA ASSURANCE COMPANY LTD. Vs. LALITA DEVI (ii) an usual undertaking shall be submitted by the appellants on or before 30/4/2009 that they shall vacate the suit premises on or before 30/4/2010 and will not create any third partys interest in the suit property; and (iii) they shall also deposit the monthly rent in terms of Section 13 of the Act which may be withdrawn by respondent/plaintiff. It is however made clear that if any of the condition is not fulfilled or is violated, the respondents shall be free to execute the decree. ( 17. ) THIS appeal is accordingly dismissed with-the aforesaid observations. Appeal dismissed.