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Madhya Pradesh High Court · body

2013 DIGILAW 220 (MP)

Bhupendra Singh v. Shyam Babu Agarwal

2013-02-20

U.C.Maheshwari

body2013
ORDER 1. The appellant-defendant-tenant has filed this appeal under section 100 of CPC against the judgment and decree dated 31.1.2012 passed by VIIth Additional District Judge Gwalior, in Civil Regular Appeal No.46-A/2011, whereby, the judgment and decree dated 17.8.2011 passed by VIIth Civil Judge to the Court of Ist Civil Judge Class II passed in Civil Original Suit No.10-A/09, has been affirmed till the extent of decree of eviction passed against the appellant under section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (in short ‘the Act’), while such decree passed on the ground of section 12(1)(b) of the Act, has been set aside. In addition to it, the appellate Court by allowing the cross-objection of the respondent filed under Order 41 rule 22 of CPC in part decreed the suit of the respondent on the ground enumerated under section 12(1)(a) of the Act also and till such extent the judgment of the trial Court was modified. 2. The fact giving rise to this appeal in short are that, the respondent herein filed the suit for eviction against the appellant with respect of some shop situated at Gwalior described in the plaint on the ground of arrears of rent, parting the possession of the premises on sub-tenancy, nuisance and bona fide, genuine requirement of the respondent himself for non-residential purpose i.e. under section 12(1)(a), (b), (c) and (f) of the Act. 3. As per other averments of the plaint, such tenancy was at the rate of Rs.500/- per month and in this regard, some documents was written between the parties on 17.4.1986. According to which, the tenancy being monthly was begun from the 1st day of Gregorian calendar month. Before filing the suit, the notice for termination of the tenancy with demand of arrears of rent was also given to the appellant on behalf of the respondent. 4. In the written statement of the appellant by admitting the tenancy in the disputed premises so also the terms and conditions of the same stated by the respondent in the plaint, in addition, it is stated that at the time of initiating the tenancy Rs.25,000/- was taken by the respondent in advance through cheque from the appellant and as per term, the same was to be refunded at the time of vacating the premises. In further averments it is denied by the appellant that he has received any notice from the respondent in respect of termination of tenancy or demand of arrears of rent. It is also stated that the respondent is having as many as nine non-residential places/accommodation in the same house and out of them, some of the premises being vacant are available in his possession as alternative accommodation. In such premises, the alleged need of the respondent could not be deemed to be bona fide and genuine. In addition to it, it is also stated that one more alternative accommodation near Jayendraganj Chauraha, Gwalior, is available with the respondent. With these averments, the prayer for dismissal of the suit was made. 5. After framing the issues and recording the evidence on appreciation of the same,the suit of the respondent was dismissed by the trial Court on the grounds enumerated under section 12(1)(a) and (c) of the Act while, the same was decreed on the ground of section 12(1)(b) and (f) of the Act. On filing the appeal by the appellant herein under section 96 of the CPC, the same was considered and by affirming the judgment and decree of the trial Court till the extent of on the ground of section 12(1)(f) of the Act, the decree of section 12(1)(b) of the Act was set aside. In addition to it, allowing the cross-objection of the respondent-plaintiff in part, the suit was also decreed on the ground of section 12(1)(a) of the Act and till this extent, the findings of the trial Court was set aside. Against such judgment and decree of the appellate Court the appellant has come to this Court with this appeal. 6. Appellant’s counsel after taking me through the record of the trial Court as well as the impugned judgment argued that both the Courts below have not considered the existing pleadings and the available evidence of the parties on the question of availability of alternate accommodation with the respondent for his alleged need and contrary to record and existing legal position decreed the suit of the respondent under section 12(1)(f) of the Act. In this regard, he also said that at the appellate stage two different applications under Order 41 rule 27 of CPC for taking the additional evidence on record and also an application under Order 6 rule 17 of CPC to amend the written statement with respect of some other available alternative accommodation with the respondent, were also filed but the same were not considered with proper approach by the appellate Court and by dismissing the same, the above mentioned decree has been passed against the appellant. He further said that such applications were dismissed on the ground of delay as the same were filed at very belated stage and not immediately after vacating the alleged premises by the other tenants of the respondent thereby, the appellant has been deprived by the appellate Court to demonstrate his case on the ground of availability of alternative accommodation with the respondent for the alleged need. So, firstly in this background he prayed to admit appeal by framing the proposed substantial questions of law No.1 and 3 mentioned in para 5 of the appeal memo. In continuation he said that, the findings of the trial Court dismissing the suit of the respondents on the ground of section 12(1)(a) of the Act, has been wrongly dismantled by the appellate Court. In this regard he said that in accordance with the provision of section 13 of the Act, the rent was duly deposited by the appellant in the trial Court and there was no occasion to pass such decree by the appellate Court. As such the trial Court has rightloy refused the decree on such ground to the respondents. In continuation he said that, in any case, if there was any arrears of rent against the appellant, then in view of law laid down by the apex Court in the matter of G. Reghunathan v. K.V. Varghese, reported in (2005)7 SCC 317 , such arrears of the rent could have been adjusted from the aforesaid advance deposited sum of Rs.25,000/- and in such premises, the appellate Court could not pass the decree on the ground of any arrears of rent. With this background he also prayed to admit this appeal on the proposed substantial question of law No.6 mentioned in the aforesaid para 5 of the appeal memo. He also placed his reliance on a decision of the apex Court in the matter of Mohd. With this background he also prayed to admit this appeal on the proposed substantial question of law No.6 mentioned in the aforesaid para 5 of the appeal memo. He also placed his reliance on a decision of the apex Court in the matter of Mohd. Ismail v. Dinkar Vinayakrao Dorlikar, reported in (2009)10 SCC 193 , as well as in the matter of Jai Prakash Gupta (dead) through LRs v. Riyaz Amamad and another, reported in (2009)10 SCC 196, so also some decisions of this Court and said that his aforesaid applications filed under Order 41 rule 27 of CPC and of Order 6 rule 17 of CPC being dismissed contrary to law the appeal be admitted by framing the substantial questions of laws on this ground also. 7. Having heard, keeping in view the argument advanced by the counsel, I have carefully gone through the record of both the Courts below along with the impugned judgment so also the aforesaid case laws cited by the appellant’s counsel. 8. It is undisputed situation in the matter that there is concurrent findings of the Courts below in favour of the respondent regarding his bona fide genuine requirement of the premises in dispute for his business.Such finding were given bythe Courts below after taking into consideration the pleadings and available evidence including the alleged available alternate accommodation with the respondent and there suitability. During the course of arguments appellant’s counsel apprises me that in one suit filed by the respondent against the other tenant for his eviction with respect of the adjoining shop to the disputed shop the requirement of three shops was stated while in present suit the requirement of two shops is stated. For the sake of argument if such situation is also taken into consideration even then, no adverse inference could be drawn against the respondent regarding his alleged need because the aforesaid concurrent findings have been given by the Courts below after taking all the available circumstances of the case as stated above. 9. For the sake of argument if such situation is also taken into consideration even then, no adverse inference could be drawn against the respondent regarding his alleged need because the aforesaid concurrent findings have been given by the Courts below after taking all the available circumstances of the case as stated above. 9. True it is after passing the decree by the trial Court on the ground of bona fide genuine requirement, on behalf of the appellant the above mentioned three applications were filed to take some additional evidence at the appellate stage as well as for amendment in the written statement with respect of availability of some alternate accommodation with the respondent as alleged which has come in vacant possession of the respondent either during the course of trial of suit. All these applications were considered by the appellate Court while passing the impugned judgment and taking into consideration the available circumstances mentioned in such applications by holding that the alleged accommodation was got vacated by the respondent in the year 2007 when the suit was pending in the trial Court and these applications were filed at very belated stage in the yer 2011 and also by mentioning some other reasons, the same were dismissed. 10. It is apparent that considering the available evidence the case was decided by the Courts below and the alleged requirement of the respondent with respect of the disputed premises has been concurrently held to be bona fide and genuine and as per settled proposition of law, such findings being finding of fact could not be interfered under section 100 of CPC as laid down by the apex Court in the matter of Dr. Ranbir Singh v. Asharfi Lal, reported in (1995)6 SCC 580 , which was followed by this Court in the matter of Machala Bai v. Nanak Ram, reported in 2006(2) MPLJ 484, holding that the concurrent findings of the Courts below on the question of bona fide genuine requirement being finding of fact, could not be interfered under section 100 of CPC. 11. So far as the case laws cited on behalf of the appellant to admit this appeal by framing the substantial question of law on the ground of dismissing there aforesaid three applications by the appellate Court is concerned,I do not dispute the principle laid down in the aforesaid cited case of Mohd. 11. So far as the case laws cited on behalf of the appellant to admit this appeal by framing the substantial question of law on the ground of dismissing there aforesaid three applications by the appellate Court is concerned,I do not dispute the principle laid down in the aforesaid cited case of Mohd. Ismail (supra), and Jai Prakash Gupta (supra), but in the available factual matrix and the circumstances, the same being distinguishable on facts are not helping to the appellant. Even otherwise, the findings and the approach of the appellate Court given for dismissing the above mentioned applications could not be said to be contrary to any law or the procedure and such situation is alsonot giving anyrise to any question of law rather then the substantial questions of law under section 100 of CPC. So, on such count also I have not found any scope in the matter to frame substantial questions of law on this count, therefore, the arguments of the appellant’s counsel in this regard is hereby failed. 12. Coming to consider the another question raised by the appellant’s counsel that after dismissing the suit of the respondent by the trial Court on the ground of section 12(1)(a) of the Act, the appellate Court has committed error in considering the cross-objection of the respondent filed under Order 41 rule 22 of CPC, and decreeing the suit on the ground under section 12(1)(a) of the Act is concerned, firstly such approach of the appellate Court being based on a decision of the apex Court in the matter of Jamnalal and others v. Radheshyam, repoprted in 2000(2) JLJ 1 , is not giving rise to any substantial question of law. Keeping in view such cited case of the apex Court even on re-examining the case at hand, then it is apparent that after receivinjg the notice of demand of arrears of rent within two months, such dues of the rent were neither tender nor paid by the appellant to the respondent and subsequent to it even after receiving the summons of the suit within one month, such arrears was neither tender nor deposited with the Court and even subsequently at any point of time till pendency of the suit before the trial Court, no application for condoning the alleged delay in depositing such rent was filed. So in such premises, the approach of the appellate Court could not be said to be faulty. 13. Apart the aforesaid even on considering the matter in the light of the other submissions of the appellant’s counsel that even on non-depositing the rent by the appellant in accordance with the provision of section 13(1) of the Act, in the light of said decision of G. Reghunathan case (supra), the Court was duty bound to adjust such arrears amount from the aforesaid earlier deposited sum of Rs.25,000/- and, in such premises, no prayer for condoning the delay was required and also the decree of section 12(1)(a) of the Act could not be passed is concerned. In the case at hand, it is apparent that at the time of creating the tenancy as per agreement Rs.25,000/- was deposited by the appellant as security advance with the respondent for the time till subsisting the tenancy and the same was refundable only on vacating the premises and not prior to that. So unless the application before the Court or the consent in this regard was given by the appellant to the respondent, such dues and arrears could not have been adjusted from the aforesaid sum of advance deposit. So, in such premises, and in the light of the case laws of Jamnalal and others (supra), the approach of the appellate Court in passing the decree under section 12(1)(a) of the Act, also could not be said to be contrary to law. 14. For the sake of argument keeping in view the aforesaid decision of the apex Court in the matter of G. Reghunathan (supra), if the case is examined then, in the cited case at the time of affirming the decree of eviction on other available grounds, the observation was made that while considering the question of committing default in paying the arrears of rent, the same could be adjusted from the sum initially deposited by the tenant and such decree on such ground was set aside. So in any case, in the case at hand also if this appeal is admitted by framing any substantial question of law regarding sustainability of impugned decree in connection of section 12(1)(a) of the Act even then in view of the aforesaid discussions and findings that the impugned decree on the ground of bona fide genuine requirement enumerated under section 12(1)(f) of the Act could not be interfered under section 100 of CPC, the impugned judgment and decree of eviction could not be set aside so this appeal could not be admitted only on such count. Consequently this appeal being devoid of any merit is hereby dismissed at the stage of motion hearing. There shall be no order as to the cost. .............