Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 313 (MP)

Amolak Chand v. Jainab Bee

2012-03-16

N.K.MODY

body2012
JUDGMENT 1. Being aggrieved by the order dated 28/6/2011 passed by District Judge, Indore in M.A.No.12/11 and 11/2011 whereby the order dated 25/3/2011 passed by Rent Controlling Authority (in short “R.C.A.”), Indore in Execution case No.1/10 whereby upon the objections filed by the appellant under Order 21 Rule 97 CPC, learned R.C.A. directed that parties should get their rights decided from the Civil Court, was set aside and objections filed by the appellant were also dismissed, the present appeal has been filed. 2. This appeal has been filed under section 100 CPC while the order was passed by the R.C.A. against which appeal was filed under section 31 of Accommodation Control Act against which appeal is provided under section 32 of Accommodation Control Act. Both the parties agree that appeal be treated as appeal u/s 32 of the Accommodation Control Act and be decided. 3. Short facts of the case are that respondent No.1 filed an eviction petition on 15/10/01 against respondent No.2 u/s 23-A of the M.P.Accommodation Control Act alleging that suit property is a house bearing House No.14 situated at Haathi Pala Main Road, Indore measuring 35 x 12 totalling 420 sq.ft.. It was alleged that suit property belongs to Mohd. Hussain S/o Roshan Mohammad, who is residing at 223 Shrinagar Extension, Indore. It was alleged that suit property was in occupation of respondent No.2 as tenant. It was alleged that vide gift deed dated 29/2/2000, Mohd. Hussain gifted the same to respondent No.1. It was alleged that tenancy of respondent No.2 with Mohd. Hussain was for Rs.500/- per month, therefore after the gift deed, respondent No.2 has become the tenant of respondent No.1. It was alleged that respondent No.1 requires the suit accommodation bonafidely for the need of her sons for which respondent No.1 is having no alternative accommodation. It was alleged that inspite of notice dated 31/7/2001, neither suit accommodation was vacated nor rent was deposited w.e.f. 1/3/2000, therefore order of eviction be passed. After obtaining leave to defend, respondent No.2 contested the petition on various grounds and prayed that eviction petition filed by respondent No.1 be dismissed. After framing of issues and recording of evidence, vide order dated 25/3/2008 the order of eviction was passed against respondent No.2, against which a Revision petition was filed by respondent No.2 before this Court which was numbered as C.R.190/08 and was dismissed vide order dated 10/8/2010. After framing of issues and recording of evidence, vide order dated 25/3/2008 the order of eviction was passed against respondent No.2, against which a Revision petition was filed by respondent No.2 before this Court which was numbered as C.R.190/08 and was dismissed vide order dated 10/8/2010. While dismissing the Revision petition, this Court also granted time to vacate the suit accommodation on or before 30/11/2010. Thereafter on 3/12/2010 objections were filed by the appellant who is real brother of respondent No.1, under Order 21 Rule 97 CPC wherein it was alleged that Shobhagyamal Modi was father of appellant and respondent No.2. It was alleged that Shobhagyamal Modi was owner of the suit property and after his death the rights have vested in the appellant. It was alleged that since appellant is in occupation of the suit accommodation and is carrying on his business, therefore order of eviction is not binding on the appellant. It was prayed that application/objections filed by the appellant be allowed and order of eviction be set aside. Reply was filed by the respondent No.1 wherein objections raised by the appellant were denied. It was prayed that objections be dismissed. After holding a summary enquiry learned Court below vide order dated 25/3/2011 held that objections raised by the appellant relate to the title which can be determined only by the civil Court and R.C.A. is having no jurisdiction to decide the same, therefore it was directed to get the question decided from the civil Court and execution proceedings were stayed, against which both the parties i.e. appellant and respondent No.1 preferred an appeal which were numbered as 11/2011 and 12/2011 and by the impugned judgment both the appeals were dismissed holding that findings of R.C.A. that question should be got determined by the civil Court cannot be allowed to sustain and objections filed by appellant deserves to be quashed. Subsequently the order of eviction was passed, hence this appeal. 4. Mr. A.S.Garg, learned Sr.Counsel appearing on behalf of appellant submits that impugned judgment passed by learned appellate Court is illegal and deserves to be set aside. Learned counsel submits that learned appellate Court was not justified in dismissing/rejecting the objections filed by the appellant. Subsequently the order of eviction was passed, hence this appeal. 4. Mr. A.S.Garg, learned Sr.Counsel appearing on behalf of appellant submits that impugned judgment passed by learned appellate Court is illegal and deserves to be set aside. Learned counsel submits that learned appellate Court was not justified in dismissing/rejecting the objections filed by the appellant. It is submitted that even if the appellate Court was of the view that question cannot be determined by the R.C.A., then too the mater ought to have been sent to the R.C.A. for deciding the objections filed by the appellant. It is submitted that by deciding the objections appellant has lost the right of one appeal on merits also. Learned counsel submits that in the appeal, it was observed that lease deed on the basis of which appellant is claiming rights is dated 21/4/58 at that time, Indore was part of Madhya Bharat, therefore document itself is doubtful. It is stated that Madhya Pradesh was formed on 1/11/56 by the States Reorganization Act, therefore in view of this the findings of learned appellate Court cannot be allowed to sustain. Learned counsel further submits that lease deed was executed by Smt. Ramkuwarbai in favour of Shobhagyamal Modi on 21/4/58 which is Ex.P/1 and is on record and subsequently rent was also paid of which receipt was produced as Ex.P/2. It is submitted that in the facts and circumstances the findings of learned Court below that documents are suspicious cannot be allowed to sustain. Learned counsel submits that ample evidence was on record to come to the conclusion that Smt. Ramkuwarbai was the member of family of Rawlas but learned Court below has also dismissed the objections on the ground that appellant has failed to prove that Ramkuwarbai was member of Rawlas family. It is submitted that in the appeal, application under Order 41 Rule 27 CPC is filed along with certain documents to show that Ramkuwarbai was the member of family of Rawlas. It is submitted that application be allowed and documents be taken on record and findings recorded by learned appellate Court be set aside and case be sent back to the executing Court to decide the application under Order 41 Rule 27 CPC. 5. Learned counsel for respondent No.1 submits that no illegality has been committed by learned appellate Court in deciding the objections filed by the appellants on merits. 5. Learned counsel for respondent No.1 submits that no illegality has been committed by learned appellate Court in deciding the objections filed by the appellants on merits. Learned counsel submits that as per Order 41 Rule 27 CPC r/w 107 CPC the appellate Court is having ample power to decide the appeal on merits and it is not necessary all the times that matter should be remanded. For this contention, reliance is placed on a decision in the matter of Ami Chand Sharma Vs. Sushil Kumar, 2005 AIHC 606, wherein Rajasthan High Court has held that “any issue or point not decided by trial Judge, First appellate Court has the power to decide such issue without remitting suit to trial Court if sufficient evidence on record is available.” Reliance is also placed on a decision in the matter of Maya Devi(Dead) through L.Rs. Vs. Raj Kumari Batra (Dead) through L.Rs., (2010) 9 SCC 486 wherein Hon. Apex Court held that discretion exercised by the Division Bench of High Court in considering the matter on merits itself instead of remitting to lower Court for fresh disposal was right and no interference is called for under Article 136 of the Constitution of India.” So far as merits are concerned, learned counsel submits that it is true that at the time when the document Ex.P/1 is alleged to have been executed, State of Madhya Pradesh was formed but on the wrong assumption, learned appellate Court has observed that at that time State of M.P. was not formed but on merits, each and every aspect of the case has been considered by the learned appellate Court, therefore appeal filed by the appellant has no merits and same deserves to be dismissed. 6. So far as jurisdiction of appellate Court is concerned, both the parties were aggrieved by the order passed by the R.C.A. whereby it was directed that parties should get their rights determined from the civil Court. While setting aside the findings of the R.C.A., the appellate Court was having two remedies either to remand the case to the R.C.A. or to decide the objections filed by the appellant on merits. Since entire evidence was on record led by both the parties therefore learned appellate Court committed no error in deciding the appeal on merits. While setting aside the findings of the R.C.A., the appellate Court was having two remedies either to remand the case to the R.C.A. or to decide the objections filed by the appellant on merits. Since entire evidence was on record led by both the parties therefore learned appellate Court committed no error in deciding the appeal on merits. It appears that it was never submitted by the appellant before learned appellate Court not to decide the appeal on merits and to decide the question of jurisdiction only. Once First Appellate Court empowered to decide the issue not decided by lower Court, this right cannot be said to have curtailed merely on the ground that one of the party looses the right to appeal. 7. So far as merits are concerned, some important facts which cannot be ignored, are that after filing of the eviction petition by the respondent No.1, respondent No.2 had appeared and applied for leave to defend and filed the written statement. At no point of time it was alleged that father of respondent No.1 had taken the suit accommodation on lease for 99 years and by virtue of that lease deed some rights have been accrued in favour of respondent No.2 after the death of his father. On the contrary tenancy was admitted by the respondent No.2 in the written statement which was filed on 1/4/2002. Smt. Madhubala wife of respondent No.2 filed a suit claiming herself to be owner of the suit property and further alleged that respondent No.2 is her tenant. This suit was registered as 25-A/06 in the Court of 16th ADJ, Indore and was dismissed on 28/11/2006. However against this, F.A. is pending which is numbered as 117-A/07. In the facts and circumstances, appeal filed by the appellant has no merits and same stands dismissed. Appellant is directed to vacate the accommodation forthwith. 8. No order as to costs.