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Madhya Pradesh High Court · body

2009 DIGILAW 965 (MP)

Gopal Prasad Gupta v. Mahesh Prasad Gupta

2009-08-11

U.C.MAHESHWARI

body2009
ORDER 1. This appeal is directed by the appellant/defendant under Section 100 of the CPC being aggrieved by the judgment and decree dated 1.8.03 passed in Civil Appeal No.7-N03 by XI Addl. District Judge Jabalpur, affirming the judgment and decree dated 26.2.03 passed in Civil Suit No. 180-NO 1 by the X Civil Judge, Class II, Jabalpur decreeing the suit of the respondents against him on the ground of arrears of rent under Section 12(1) (a) of the M.P. Accommodation Control Act, 1961. 2. The facts giving rise to this appeal in short are that the respondents herein filed the suit for eviction against the appellant with respect of a shop situated at House No.184 (New Number 199) Tularam Chowk, Jabalpur on the available grounds under Section 12(1)(a), 12(1)(c) and 12(1)(d) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act'), the arrears of rent, nuisance and also the premises was kept closed and was not under use for which the appellant was inducted in such premises. As per other averments of the plaint, the aforesaid tenancy was for non-residential purpose at the rate of Rs.150/- per month. The demand notice with respect of arrears of rent was given by the respondents on 14.2.2001 stating that the rent for the period between 1.5.86 to 31.1.2001 has not been paid. Such notice was received back with an endorsement that the same was refused by the appellant. In such premises, the aforesaid suit was filed. 3. In the written statement of the appellant/defendant, by admitting the tenancy of the respondents in the disputed house, the grounds of eviction stated in the plaint are denied. It is further stated that the demand notice with respect of the rent has neither been sent nor served on the appellant. 4. After casting the issues and recording the evidence, on appreciation of the same, the suit of the respondent was decreed by the trial Court on the ground of arrears of rent under section 12(1)(a) of the Act while the same was dismissed on other grounds under section 12(1)(c) and 12(1)(d) of the Act. Such decree was challenged by the appellant before the first appellate Court. On consideration, the same has been dismissed, on which, the appellant has come forward to this Court with this appeal. 5. Such decree was challenged by the appellant before the first appellate Court. On consideration, the same has been dismissed, on which, the appellant has come forward to this Court with this appeal. 5. Shri Mukesh Agarwal, learned counsel for the appellant by referring the pleadings of the parties, evidence and the documents available on the record said that the approach of both the Courts below holding the demand notice of the rent sent by the respondents was duly served on the appellant, is not sustainable as the notice was not sent to the appellant on his correct address or at the address of the disputed premises. So firstly he prayed that in the lack of proper service of demand notice, the decree under section 12(1)(a) of the Act could not be passed against him. He further argued that there was no arrears of rent against the appellant. In continuation it was said that even after receiving the summons of the Court in compliance of section 13(1) of the Act, Rs.1500/- and 1800/- respectively were deposited by the appellant. Such aspect has also not been considered by both the Courts below. In addition, it was also argued that necessary parties, the other occupier of the premises, are not impleaded as defendants in the matter and prayed to admit this appeal on the proposed substantial questions of law mentioned in the appeal memo. 6. Having heard the counsel at length, I have carefully examined the record and also perused the impugned judgments. Before the Courts below the relationship of the landlord and tenant between the parties and the rate of rent of the tenanted accommodation were not in dispute between them. On appreciation of the available evidence, Issue No. 2, 3 and 4 relating to the arrears of rent, and demand notice were decided by the trial Court against the appellant holding that he was in arrears of rent for the period of more than 3 years. On appreciation of the available evidence, Issue No. 2, 3 and 4 relating to the arrears of rent, and demand notice were decided by the trial Court against the appellant holding that he was in arrears of rent for the period of more than 3 years. So far service of the aforesaid demand notice is concerned, taking into consideration the endorsement made by the Postman on the envelope of such notice "refused to take" by the appellant, it was held by the trial Court that it being sent on the correct address of the appellant, as admitted by him in his deposition, the same has been duly served and in such premises, the decree under Section 12 (1) (a) of the Act has been passed while the suit on other grounds was dismissed. On filing the appeal, by the appellant, on re-appreciation of evidence, the same was also dismissed. Accordingly, it reveals that there is a concurrent findings of both the Courts below on the aforesaid question and the same are based on admissible evidence. It is settled proposition of law that concurrent findings based on admissible evidence howsoever erroneous, could not be interfered under Section 100 of the CPC at the stage of second appeal as laid down by the Apex Court in the matter of Kondiba Dagadu Kadam v. Savitri Bai Sopan Gurjar- AIR 1999 SC 2213 . 7. It is also settled proposition of the law that where the rate of rent is not in dispute between the parties then the defendant is obliged to pay the rent either within two months from the date of demand notice or deposit the same within one month from the date of receiving the summon of the suit. If such compliance is not made by the tenant then the suit of the landlord could be decreed for eviction on the ground of arrears of rent under Section 12 (1) ( a) of the Act as laid down by the Apex Court in the matter of Jamnalal and others v. Radheshyam 2000 (2) JLJ 1 = (2004) 4 SCC 380. 8. In the aforesaid premises, I have not found any perversity in the impugned judgment giving rise to any question of law, muchless, the substantial question of law requiring any interference at the stage under Section 100 of the CPC. 8. In the aforesaid premises, I have not found any perversity in the impugned judgment giving rise to any question of law, muchless, the substantial question of law requiring any interference at the stage under Section 100 of the CPC. Hence, this appeal is hereby dismissed at the stage of motion hearing.