Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 1089 (MP)

Rajendra Prasad Rajoriya v. Shivcharan Malviya

2015-10-13

R.S.JHA

body2015
ORDER : Ravi Shankar Jha, J. This appeal has been filed by the appellant being aggrieved by the judgment and decree dated 15-3-2002 passed by the Second Additional District Judge, Hoshangabad in Civil Appeal No. 16-A/2001 affirming and confirming the judgment and decree dated 15-1-2001 passed by the Civil Judge, Class-I, Itarsi, District Hoshangabad in Civil Suit No. 2-A/1998 whereby the suit for eviction filed by the respondent/plaintiff has been decreed. The brief facts leading to filing of the appeal are that the respondent/plaintiff filed a suit for eviction against the appellant on the grounds as stated in sections 12(1)(a), 12(1)(e) and 12(1)(g) of the Madhya Pradesh Accommodation and Control Act (hereinafter referred to as "the Act"). 2. It was contended by the respondent/plaintiff that he had two houses in the city of Itarsi. One was in his occupation and the other was let out to the appellant. It was also contended that on account of the fact that the two sons of the original plaintiff Shivcharan had got married and also had children, therefore, the house in his possession was not sufficient for the needs of his expanded family and therefore he had sought eviction of the appellant from the house, let out to the appellant. It was further contended that the appellant was in arrears of rent and that the appellant had damaged the premises also. 3. The trial Court decreed the suit on the grounds stated in sections 12(1)(e) and 12(1)(g) of the Act. On an appeal being filed by the appellant, the first Appellate Court while upholding the judgment and decree passed by the trial Court has decreed the suit under sections 12(1)(c) and 12(1)(e) of the Act. 4. The learned counsel appearing for the appellant has raised two substantial questions of law before this Court; firstly that the appellant had in fact not denied the title of the respondent/landlord and he has only challenged his derivative title and therefore in view of the law laid down in the case of Khuman Singh vs. Nathuram, 1991 JLJ 348 the Court below has committed gross illegality in decreeing the suit on the grounds mentioned in section 12(1)(c) of the Act. The second substantial question of law sought to be raised by the learned counsel for the appellant is that the landlord has failed to specifically plead in his plaint that he has no other alternative suitable accommodation in the city of Itarsi and, therefore, in view of the law laid down by the Supreme Court in the case of Hashmat Rai and another vs. Raghunath Prasad, 1981 MPLJ (S.C.) 610 : 1981 (3) SCC 103 and the decision of this Court rendered in the case of Ramkishore vs. Gyanchandra Jain, 2010 (3) MPLJ 359 another substantial question of law arises for adjudication in the appeal. 5. Having heard the learned counsel for the appellant, it is observed that the appellant had initially admitted the fact in his written statement that the respondent/plaintiff was his landlord. However, subsequently he amended the written statement and challenged the title of the respondent/plaintiff by alleging that the Will/gift deed, on the basis of which he was claiming to be landlord, was not genuine. The first Appellate Court on the basis of the facts and documents brought on record has found that in view of the subsequent amendment made by the appellant in the written statement, which had escaped the attention of the trial Court, it is clear that the appellant had in fact assailed the title of the respondent/landlord in respect of the accommodation in question. It is also apparent that the first Appellate Court has recorded a finding to the effect that the appellant was inducted by the respondent/plaintiff as a tenant and has throughout paid the rent to him and is continuously paying the rent to the respondent/plaintiff and it is only after filing of the suit, that he took up the plea denying derivative title of the respondent/plaintiff. 6. The first Appellate Court in the circumstances found that in the present case, the appellant had denied the title of the landlord and, therefore, in view of the law laid down by the Supreme Court in the case of Majoti Subba Rao vs. P.V.K. Krishna Rao, 1990 (1) MPWN SN 192 the ground for eviction of the tenant under section 12(1)(c) of the Act is made out. I do not find any perversity in the aforesaid finding of fact nor does a substantial question of law arise for adjudication in that regard in view of the aforesaid admitted and undisputed fact available on record. 7. The decision of this case rendered in the case of Khuman Singh (supra) relied upon by the learned counsel for the appellant has in fact no applicability to the facts of the present case inasmuch as in the case of Majoti Subba Rao (supra), the landlord had changed during the course of the tenancy and it was in such circumstances the tenant had asserted that the original owner was the landlord and that the subsequent person claiming himself to be the landlord without notice was not the landlord. It was in such circumstances that this Court has held that such a change to the landlordship of the plaintiff would not result in making out the case under section 12(1)(c) of the Act. The facts of the present case are totally different and, therefore, the reliance placed upon by the learned counsel for the appellant on the decisions rendered in the cases of Khuman Singh (supra) and Manjoti Subba Rao (supra) is totally misconceived. 8. As far as the second question raised by the learned counsel for the appellant is concerned, it is pertinent to note that the plaintiff in the plaint has himself stated that he has two houses in the city of Itarsi, one of which in his occupation and the other has been let out to the respondent/plaintiff and that as the accommodation in his possession is now insufficient for his needs, he is seeking eviction of the appellant from the other house for his personal bona fide residential need. In the statement made before the Court, Shivcharan (P.W. 1) has further clarified this aspect and has also specifically and clearly stated that he has no other suitable accommodation in his possession in the city of Itarsi. This fact has been reiterated by the plaintiff's witness Om Prakash Malviya (P.W. 3). 9. It is also clear from the perusal of the record that the appellant has not clarified in his written statement or in his statement in the Court with regard to the existence of any other accommodation apart from the aforesaid two accommodations belongs to respondent nor has he given any details of the same. 9. It is also clear from the perusal of the record that the appellant has not clarified in his written statement or in his statement in the Court with regard to the existence of any other accommodation apart from the aforesaid two accommodations belongs to respondent nor has he given any details of the same. In the circumstances, I am of the considered opinion that the present case is one where both the Courts below have rightly held that the respondent/plaintiff has made out a ground under section 12(1)(e) of the Act against the appellant. 10. In the case of Sujata Sarkar vs. Anil Kumar Duttani, 2009 (2) MPLJ 156 , this Court, by placing reliance on the decision of the Supreme Court rendered in the case of Hasmat Rai (supra) and the case of Ram Narain Arora vs. Asha Rani and others, 1999 (1) SCC 141 , has held that the requirement of the provisions of sections 12(1)(e) and (f) is that the appellant/plaintiff must show or bring material on record to establish that he has no other alternative suitable accommodation in the city and that a specific pleading in the plaint in this respect in writing is not mandatory and that in the absence of such pleading the plaintiff/landlord cannot be non-suited, if he is able to bring material on record through oral and documentary evidence to the effect that he has no other alternative suitable accommodation in the city. The decision rendered by this Court in the case of Sujata Sarkar (supra) has been affirmed and upheld by the Supreme Court in S.L.P. (Civil) No. 15238 of 2009 by dismissing the S.L.P. filed against it by order dated 20-1-2012. In the circumstances, as the respondent/plaintiff has brought sufficient evidence on record to establish that he has no other reasonably suitable accommodation in his possession and has also stated that he has two houses, one of which is in his occupation and the other is in the occupation of the appellant/defendant and that in the changed circumstances he is in urgent need of the accommodation in possession of the appellant, therefore, the contention of the learned counsel for the appellant in this regard being misconceived is accordingly rejected and it is held that the aforesaid proposed substantial question of law does not arise for adjudication in the present appeal. 11. 11. The reliance placed by the learned counsel for the appellant on the decisions rendered in the cases of Ramkishore (supra) is also misconceived as the facts of this case indicate that in that case the tenant had specifically pleaded the availability of a alternative suitable accommodation with the landlord which assertion was neither explained by the landlord/plaintiff in his evidence nor did he disclose the availability of the said accommodation in the plaint and it was in the total absence of any explanation or denial on the part of the landlord that this Court had rendered the decision. In the instant case the respondent/plaintiff in the plaint itself has specifically stated that he has two houses in the city of Itarsi one is in his possession and the other one has been let out to the appellant, which he requires for personal bona fide residential need for his family and therefore, the facts of the two cases are totally different. The reliance placed by the learned counsel for the appellant on the decision rendered in the case of Ramkishore (supra) is, therefore, misconceived. 12. Having perused the record, I find that the Courts below have already recorded a concurrent finding of fact in respect of the ground mentioned in sections 12(1)(e) of the Act. For the aforementioned reasons, I am of the considered opinion that no substantial question of law arises for consideration in this appeal as the jurisdiction of this Court to interfere with the findings of fact under section 100 of Civil Procedure Code is limited to the case where the finding is either perverse or based on no evidence. This Court cannot interfere with the concurrent finding of fact until or unless the same is perverse or contrary to material on record as has been held by the Supreme Court in the cases of Narayan Rajendran and another vs. Lekshmy Sarojini and others, (2009) 5 SCC 264 , Nafazat Hussain vs. Abdul Majeed and others, (2011) 7 SCC 189 and D.R. Rathna Murthy vs. Ramappa, 2011 (2) MPLJ (S.C.) 507 : (2011) 1 SCC 158 and Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 , Union of India vs. Ibrahim Uddin and another, (2012) 8 SCC 148 , Vanchala Bai Raghunath Ithape (dead) by LR vs. Shankar Rao Babu Rao Bhilare (dead) by LRs. and others, 2013 (4) MPLJ (S.C.) 251 : (2013) 7 SCC 173 . 13. The appeal filed by the appellant being meritless is accordingly dismissed. 14. At this stage, the learned counsel for the appellant states that he be granted sometime to vacate the premises. 15. Looking to the long pendency of the litigation, I am of the considered opinion that the appellant is required to be given three months time from today to vacate the premises subject to the fact that he furnishes an undertaking on affidavit before the Court below that he shall deposit all arrears of rent and continue to deposit the current rent and that he would not create any third party rights or encumbrance in respect of the premises in question and keep the premises in good condition and shall himself vacate the premises by 13-1-2016 on his own. Such an undertaking along with an affidavit should be furnished by the appellant within two weeks from today, failing which the Court below would be at liberty to proceed immediately for executing the decree. 16. It goes without saying that if such an undertaking is furnished, the appellant shall be permitted to occupy the premises up to 13-1-2016. With the aforesaid observations, the appeal filed by the appellant stands dismissed.