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2017 DIGILAW 1269 (MP)

Gopaldatta Dholakhandi v. S. K. Tamotia

2017-12-14

VIVEK AGARWAL

body2017
ORDER 1. This first appeal has been filed by the tenant/defendant being aggrieved by judgment and decree dated 12.1.1916 passed in Civil Suit No. 74-A/2014 whereby a suit for eviction has been decreed under the provisions of 12(1)(a), (e) and (i) of the M.P. Accommodation Control Act (hereinafter referred to as "The Act"). 2. It is appellant's contention that he was a tenant and his defence was wrongly struck out by the Court though entire rent was deposited by him. He submits that the plaintiff was required to prove his own case but defendant/tenant was not afforded any opportunity to cross-examine the plaintiff as well as to lead evidence and, therefore, in absence of any rebuttal it cannot be said that the issues framed by the Tribunal specifically in terms of the provisions contained under sections 12(1) (e) and 12(1)(i) of the Act stood proved on their own. 3. Petitioner has placed reliance on the judgment of this Court in case of Laxminarayan v. Jambu Dall Mills and others, as reported in 1993 JLJ 119, wherein it has been held that where a suit for eviction and for recovery of rent has been filed, defendant shall have to suffer consequences of striking of defence under section 12 of the Act. He also has to suffer money-decree for arrears of rent because of striking off the defence to rebut the contention of plaintiff for showing grounds of eviction but tenant can demonstrate that arrears as claimed were not due when issues in the suit were tried in those proceedings. 4. Petitioner has also placed reliance on the judgment of this Court in case of Premchand Sood v. Abdul Rahim Siddique, as reported in 1979(II) MPWN 18, which shows that order striking out the defence should not normally be passed if the rent has already been deposited. Striking out a defence is an extreme step which is to be restored to only in case of mala fides or contumacy. Similarly he has placed reliance on the judgment of this Court in case of C.L. Choudhary v. Tejram, as reported in 1979 (II) MPWN 203, wherein it is held that powers under section 13(6) are to be exercised sparingly and in extreme cases. The default should be wilful and the tenant guilty of positive mala fides. Similarly he has placed reliance on the judgment of this Court in case of C.L. Choudhary v. Tejram, as reported in 1979 (II) MPWN 203, wherein it is held that powers under section 13(6) are to be exercised sparingly and in extreme cases. The default should be wilful and the tenant guilty of positive mala fides. Appellant has also placed reliance on the Full Bench judgment of this Court in case of Jagadish Kapoor v. New Education Society, as reported in 1967 JLJ 859 = AIR 1968 MP 1 , wherein it has been held that Courts decision to struck out of defence is a discretionary provision and not a mandatory provision. Therefore, he submits that before striking of the defence some reasonable opportunity should have been provided to the tenant to deposit the arrears of rent. In view of such submission and also on the ground that issue No. 7 has been wrongly framed in regard to first floor of the property whereas suit was for eviction from the ground floor, prays for setting aside the judgment and decree. 5. As far as striking of the defence is concerned, it is an admitted position that defendant was served on or before 4.8.2011. Objection was raised in regard to the quantum of the rent due and said objection was decided vide order dated 18.7.2013. Thereafter, he was given time to deposit the arrears of rent and again on 27.8.2013, defendant was granted time to file complete details of rent paid by him. Case was listed on 12.8.2017 and on 12.9.2017, application under section 13(6) was decided and right to defence was closed. Thus, opportunity was given to the appellant vide order dated 18.7.2013 to deposit the rent within a period of 30 days and, therefore, this was sufficient compliance of the orders of the High Court in case of Jagadish Kapoor (supra). 6. Similarly, it has come on record that admittedly, complete rent was not deposited till 12.9.2013 but was deposited on 30th September, 2013, and, therefore, application under section 151 CPC filed by the defendant was dismissed vide order dated 24.7.2014. Thereafter, opportunities were granted to the plaintiff/defendant to cross-examine the plaintiff but such opportunities were not availed by the defendant as is apparent from order-sheets dated 14.5.2015 and 27.7.2015. Thereafter, on 30.6.2015, appellant had cross examined the plaintiff witness S.K. Tamotiya. Thereafter, opportunities were granted to the plaintiff/defendant to cross-examine the plaintiff but such opportunities were not availed by the defendant as is apparent from order-sheets dated 14.5.2015 and 27.7.2015. Thereafter, on 30.6.2015, appellant had cross examined the plaintiff witness S.K. Tamotiya. Thereafter, opportunity was given to lead his evidence and case was fixed on 27.7.2015 then he sought time on 6.8.2015 in the name of pendency of SLP and then again on 24.8.2015 followed by 16.9.2015 and 1.10.2015, his right to lead evidence was closed on 14.10.2015. Thus, the conduct of the appellant before the trial Court reveals that he had sufficient opportunity to lead his defence but he has failed to avail such opportunity and, therefore, the ratio of the case of Laxmi Narayan (supra), and that of Prem Chand Sood and C.L. Chaudhary (supra), are not available in the present case. 7. As far as issue No. 7 is concerned, it has been dealt with by the trial Court and it is in regard to the plea of the plaintiff that looking to the advance age of the plaintiff and his spouse, they cannot be forced to occupy first floor accommodation and have right for eviction of the tenant occupying the ground floor. Thus, this issue has not been decided arbitrarily as has been submitted by the learned counsel for the appellant. 8. As far as issue under section 12(1)(i) of the Act is concerned, appellant had merely denied availability of alternate accommodation in his written statement but did not state that if that accommodation was not belonging to the appellant, then who was the owner of such property. 9. After hearing the arguments and going through the record, this Court expressed to the appellant-counsel that he may seek some reasonable time for eviction of the suit premises as Court is going to dismiss the appeal but he submits that he has no such instructions. 10. This Court is of the opinion that sufficient opportunity was granted to the appellant to cross examine the plaintiff and lead his own evidence. In view of the fact that rent which was over Rs.4,00,000/- was deposited in three instalments, that too not within the stipulated or extended time, therefore, ground under section 12(1)(a) stood proved. 10. This Court is of the opinion that sufficient opportunity was granted to the appellant to cross examine the plaintiff and lead his own evidence. In view of the fact that rent which was over Rs.4,00,000/- was deposited in three instalments, that too not within the stipulated or extended time, therefore, ground under section 12(1)(a) stood proved. Plaintiff shall prove the ground under section 12(1)(e) of the Act by explaining the bona fide need for themselves as they wanted to shift from Bhuvaneshwar to Gwalior. As far as ground under section 12(1)(i) of the Act is concerned, that too has been discussed and decided by the trial Court aptly inasmuch onus was on the defendant/appellant to not only deny the ownership and possession of the alternate property but also to show that in whose possessions ownership said property is. Since, the appellant has failed to discharge his burden and also failed to step in the witness box to lead his evidence despite opportunity it cannot be said that there is any illegality in the impugned order calling for interference inasmuch as issues have been framed and decided on the basis of the evidence available on record and the appellant for his own lapse cannot take advantage by saying that his right of leading evidence was closed. This appeal fails and is dismissed. S. S. Bansal for appellant; Kamal Mangal with Anand V. Bhardwaj for respondents.