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Madhya Pradesh High Court · body

2010 DIGILAW 617 (MP)

Abdul Samad v. Khemraj

2010-06-24

N.K.MODY

body2010
JUDGMENT 1. Being aggrieved by the judgment and decree dated 29.9.2006 passed by IIIrd Addl. District Judge, Indore in Civil Appeal No. 15/2005, whereby the judgment dated 29.9.2004 passed by XIth Civil Judge Class I, Indore in Civil Suit No. 139-A/2003, whereby suit filed by the appellants for eviction of respondents under section 12 (1) (a) and (f) of M.P. Accommodation Control Act, 1961 (which shall be referred hereinafter as 'the Act") was dismissed, was maintained, the present appeal has been filed. 2. The appeal was admitted on the following substantial questions of law :- "(a) Whether the Courts below committed error in dismissing the suit filed by the appellants? (b) Whether learned appellate Court committed error in dismissing the application filed by the appellants under Order XLI Rule 27 CPC?" 3. Short facts of the case are that the appellants filed a suit for eviction on 2.11.96 alleging that appellant No.1 and his brother deceased Abdul Majid, whose LRs. are appellants No.2 to 11 are the owner of a house bearing municipal No. 236/1 Naya Pura, Indore. In the suit it was alleged that appellant No.1 is also the Power of Attorney of appellants No.2 to 11 and the suit was filed by the appellants, which is signed by the appellants No.1, in his individual capacity as well as power of Attorney for rest of the appellants. In the suit it was alleged that respondent is tenant in the suit accommodation, which is a shop @ Rs. 125/- per month. It was alleged that respondent is in arrears of rent w.e.f. 1.1.96, which has not been paid inspite of notice dated 25.5.96, which was duly served. It was alleged that appellants require the suit accommodation for the business of the son of appellant No.1, who is unemployed. It is submitted that need of the appellants is bona fide and for that no alternate suit accommodation is available in the city of Indore. It was prayed that decree of eviction be passed against the respondent under section 12 (1) (a) and (f) of the M.P. Accommodation Control Act. The suit was contested by the respondent by filing written statement, wherein the tenancy was not denied, however, it was denied that the respondent is the defaulter. It was also denied that appellant No. 1 is owner of the suit accommodation. It was prayed that suit be dismissed. The suit was contested by the respondent by filing written statement, wherein the tenancy was not denied, however, it was denied that the respondent is the defaulter. It was also denied that appellant No. 1 is owner of the suit accommodation. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court dismissed the suit against which the appeal was filed. During pendency of the appeal an application under Order 41 Rule 27 CPC was filed on 13.12.2005 alongwith certain documents, which was dismissed on 29.9.2006 and thereafter the appeal was also dismissed, hence the appeal. 4. Learned counsel for the appellants argued at length and submits that the impugned judgment passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that the document Ex. P/1, which is a Power of Attorney goes to show that appellant No. 1 was owner of the suit accommodation alongwith deceased Abdul Majid. This tact has been admitted by appellants No.2 to 11 in the document itself Apart from this learned counsel submits that to prove the ownership certain documents were filed by the appellate during pendency of the appeal, which ought to have been decided by the appellate Court alongwith the appeal but the same was dismissed. It is submitted that in the facts and circumstances of the case appeal filed by the appellants be allowed and the judgment passed by the learned Courts below be set aside. 5. Shri D.M. Kirtane, learned counsel for the respondent, submits that in the application filed by the appellants under Order 41 Rule 27 CPC, nothing was stated by the appellants that what is the relevancy of the documents. It is submitted that in the facts and circumstances of the case no illegality has been committed by the learned appellate Court in dismissing the application. So far as findings of the trial Court is concerned, it is submitted that there is nothing on record on the basis of which it can be proved that appellant No. 1 was also the owner of the suit accommodation. So far as Ex. So far as findings of the trial Court is concerned, it is submitted that there is nothing on record on the basis of which it can be proved that appellant No. 1 was also the owner of the suit accommodation. So far as Ex. P/1 is concerned, learned counsel submits that it is the Power of Attorney executed by appellants No.2 to 11 and from its recital it is amply proved that husband and father of the appellants No.2 to 11 was owner of the suit accommodation and only right to maintain the suit accommodation was given by appellants No.2 to 11 appellant No.1. It is submitted that appeal filed by the appellants be dismissed. 6. From perusal of the record it is evident that alongwith the application under Order 41 Rule 27 CPC, which was filed by the appellants before the learned Executing Court photostate copy of the certified copy of the registered mortgage deed dated 20.2.1962 was filed, whereby the suit property was mortgaged by Adbul Majid, predecessor-in-title of appellants No.2 to 11 and also by appellant No.1 Adbul Samad in favour of one Sukhdev Chourasia for a consideration of Rs. 11,000/-. The said mortgage deed is also having an endorsement on the rear part of the mortgage deed, which alleged to have been executed by Ramesh Chandra S/o Sukhdev, wherein it is mentioned that he has received the mortgage money. Apart from the order dated 19.2.1991 passed by 7th Addl. District Judge, Indore in Executive Case No. 27/66 has also been filed, wherein in an execution petition filed by Ramesh Chandra Chourasia against Adbul Majid and others. It is mentioned that the decree holder has received the mortgage money and the execution petition is dismissed in full satisfaction. From the record it is also evident that this application was dismissed by the learned appellate Court on 29.9.2006 on the ground that appeal can be disposed of without the documents as well. After passing of the said order the appeal was dismissed on merits by the learned appellate Court on the same day by passing a separate judgment. From perusal of the judgment, it is evident that the documents, which were filed by the appellants alongwith the application, were not taken into consideration as the application was dismissed. After passing of the said order the appeal was dismissed on merits by the learned appellate Court on the same day by passing a separate judgment. From perusal of the judgment, it is evident that the documents, which were filed by the appellants alongwith the application, were not taken into consideration as the application was dismissed. In the matter of Lallu v. Kalu, 1999 (I) MPWN 129 = 2000 (I) MPJR 58 , this Court has held that the application under Order 41 Rule 27 CPC should be decided alongwith the appeal on merits. In the matter of M/s Eastern Equipment and Sales Ltd. v. Yash Kumar; AIR 2008 SC 2360 , Hon'ble Supreme Court has held that appellate Court ought to have taken appeal alongwith application for acceptance under Order 41 Rule 27 CPC. It was also held that rejection of application was not proper. Hence, appellate Court was directed to decide pending appeal alongwith application under Order 41 Rule 27 CPC. 7. From perusal of the record it is evident that even if bypassing a separate order learned appellate Court has not at all taken into consideration the nature of the documents, which were filed by the appellants alongwith the application. Since suit for eviction filed by the appellants was dismissed on the ground that appellant No.1 was not the owner of the suit accommodation, therefore, it cannot be said that the documents submitted by the appellants were irrelevant. It is true that these documents were supposed to be filed by the appellants alongwith the suit but the same was not filed. In appeal also the application filed by the appellant alongwith the documents was not happily worded but for the appellants cannot be punished. In the facts and circumstances of the case, this Court is of the view that learned appellate Court committed error in dismissing the appeal filed by the appellants as also the application under Order 41 Rule 27 CPC filed by the appellants. In view of this appeal filed by the appellants is allowed and the judgment passed by the learned appellate Court is set aside and the application filed by the appellants under Order 41 Rule 27 CPC before the learned appellate Court is allowed subject to payment of cost of Rs. In view of this appeal filed by the appellants is allowed and the judgment passed by the learned appellate Court is set aside and the application filed by the appellants under Order 41 Rule 27 CPC before the learned appellate Court is allowed subject to payment of cost of Rs. 2,000/- to the counsel for respondent and the case is remanded back to the learned trial Court with a liberty to the appellants to amend the application, if required, which includes consequential amendment and decide the suit afresh after giving an opportunity to the parties to adduce additional evidence. Parties are directed to appear before the trial Court on 27.7.2010.