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2016 DIGILAW 696 (MP)

Pushpa Samaiya v. Harish Makhija

2016-08-16

R.S.JHA

body2016
ORDER 1. Heard on the question of admission. 2. The appellant/defendants have filed this appeal being aggrieved by the judgment and decree dated 16.2.2016, passed by the VIII Additional District Judge, Jabalpur, in Civil Appeal No.65-A/2015 affirming and confirming the judgment and decree dated 17.3.2015, passed by IV Civil Judge Class-II, Jabalpur, in Civil Suit No.106-A/2012 whereby the suit filed by the respondent/plaintiff for eviction of the appellant/defendants has been decreed on the grounds mentioned in sections 12(1)(a) and 12(1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the “Act”). 3. The learned counsel appearing for the appellants submits that the finding recorded by the Courts below is perverse inasmuch as the Courts below have not taken into consideration the fact that the appellants had deposited the arrears of rent continuously and regularly and, therefore, no order or decree of eviction against them could have been passed under section 12(1)(a) of the Act. 4. The learned counsel for the appellants also submits that the respondent has failed to establish the bona fide need for the accommodation in question for opening or expanding his business and in such circumstances, in the absence of any cogent evidence to establish the ground under section 12(1)(f) of the Act the Courts below have erred in law in decreeing the suit filed by the respondent. 5. In support of his submissions the learned counsel for the appellants has taken this Court through the record of this Court to indicate that there was a dispute between the parties in respect of the rent which was required to be paid, on the ground that the appellants in their written statement has taken a specific plea to the effect that the respondent/plaintiff is not the landlord and there was no relationship between the parties of landlord and tenant. It is submitted that by order dated 27.4.2009 the trial Court had passed an order determining the rent to be paid by the appellants at the rate of Rs.500/- per month and that after 27.4.2009 the appellants have been regularly depositing the rent and, therefore, both the Courts below have ignored the aforesaid aspect which fact gives rise to a substantial question of law for adjudication in the present appeal. 6. 6. Having heard the learned counsel appearing for the parties it is observed that from a perusal of the appellants' written statement and the documents filed by them it is clear that the aforesaid aspect has duly been considered by the first appellate Court and in paragraph 23 of the order and the first appellate Court has taken note of the amounts deposited by the appellants towards the rent. The aforesaid deposit of rent made by the appellants between 4.5.2007 and 22.7.2010 has been reproduced in tabular form by the Court. 7. From a perusal of the chart reproduced by the first appellate Court in paragraph 23 of its order it is apparent that the rent deposited by the appellants was not and is not in consonance with the requirement of section 13 of the Act. I am constrained to say so as once the rent was fixed by the trial Court and the appellants knew about the rate of rent on the date of filing of first appeal, they were required to deposit the arrears of rent as well as the future rent and that the future rent was required to be deposited by the 15th of each month. From the chart reproduced in paragraph 23 of the appellate Court's order it is clear that instead of doing so the appellants have deposited the lump sum rent of six months, two months and at times four months at one time instead of depositing the same monthly and that no application for condoning the delay or for permission to do so has been filed as required by section 13 of the Act. 8. The first appellate Court, taking note of the aforesaid aspect, has analyzed the effect and impact of the irregular deposits made by the appellants contrary to the provisions of section 13(1) of the Act. In paragraph 25 of its judgment, the first appellate Court has held that the appellants have committed default in depositing the rent under section 13 of the Act on several occasions and deposited the rent for more than three months at a time and, therefore, they are liable to eviction in terms of section 13(1) read with section 12(3) of the Act. 9. 9. Even before this Court, the learned counsel for the appellants has not demonstrated that they have in fact deposited the rent by 15th of each month as required by law and, therefore, the finding recorded by the first appellate Court is not perverse. In the circumstances, it is clear that while the fact of depositing the rent as stated by the appellants has been considered by the Court below, however, it is established from the receipts and documents produced by the appellants themselves that they had committed breach of section 13(1) as well as section 12(3) of the Act and, therefore, no fault can be found with the finding recorded by the Courts below in this regard. As the aforesaid findings are based on the facts on record, they do not give rise to any substantial question of law for adjudication in the present appeal. 10. Second issue raised by the appellants is regarding the finding in respect of bona fide need of the plaintiff/respondent for commercial use that has been found to have been established by the Courts below. From a perusal of the judgment of the trial Court as well as of the first appellate Court it is clear that both the Courts below have taken into consideration the submissions made by the parties and the evidence adduced by them and also taken into consideration the assertion of the appellants that the plaintiff owns other accommodations in the city. While doing so, the Courts below have recorded a finding to the effect that the plaintiff has established that the other accommodations available to him are not suitable for the purposes of expansion of his present business, more so, as the plaintiffs are four brothers and each of them have right in the property. The Courts below have taken note of the law that the plaintiff/landlord is the best judge of the accommodation required by him for the purposes of starting his business or for expanding the same and that the discretion in that regard which is vested in the landlord cannot be taken away nor can the tenant or the Court impose their view in that regard on the landlord. 11. 11. From a perusal of the record, it is also evident that the appellants have admitted that they were the tenants of the original owner and that the original owner had executed documents Ex.P-1 and Ex.D-1 in favour of the present respondent/plaintiff. In spite of the said admission the appellants have denied the right of the respondent/plaintiff to claim eviction only on the ground that the documents executed by the original owner Radhe Shyam in favour of the respondent/plaintiff is not proper. In such circumstances, in view of the aforesaid admitted facts, I do not find any perversity in the finding recorded by the Courts below giving rise to a substantial question of law for adjudication in this appeal. 12. In the circumstances, I do not find any perversity or illegality in the findings recorded by the Courts below, more so, as it is settled law that a different interpretation or conclusion based on the evidence on record would not give rise to any substantial question of law for adjudication when the concurrent findings recorded by the Courts below are based on proper appreciation of the oral and documentary evidence on record. As the finding recorded by the Courts below is based on cogent appreciation of the evidence on record, this Court cannot go into the same and interfere with the concurrent finding of fact. 13. In view of the aforesaid, I do not find any merit in the appeal filed by the appellants and, therefore, the same is dismissed. 14. At this stage, the learned counsel for the appellants prays for six months' time to vacate the premises. 15. The prayer is vehemently opposed by the learned counsel for the respondent that the appellants should not be granted any time to continue in occupation of the premises and the impugned decree be permitted to be executed. 16. 14. At this stage, the learned counsel for the appellants prays for six months' time to vacate the premises. 15. The prayer is vehemently opposed by the learned counsel for the respondent that the appellants should not be granted any time to continue in occupation of the premises and the impugned decree be permitted to be executed. 16. Having heard the learned counsel for the parties, the prayer of the appellants is allowed and six months' time is granted to the appellants to vacate the premises in question subject to the fact that they furnish an undertaking on affidavit before the Court below that they shall deposit all arrears of rent and continue to deposit the current rent and that they 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 themselves vacate the premises by 16th of February, 2017 on their own. Such an undertaking along with an affidavit shall be furnished by the appellants within two weeks from today, failing which the respondent as well as the trial Court concerned would be at liberty to undertake immediate proceedings for execution of the decree and for eviction of the appellants forthwith. It is also made clear that in case the appellants do not vacate the premises by 16th of February, 2017, the respondents and the Court below shall forthwith execute the decree. 17. With the aforesaid observations, the appeal filed by the appellants being meritless stands dismissed. Santosh Kumar Jain for appellants; C. V. Rao for respondents.