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2017 DIGILAW 43 (MP)

Munne Khan v. Mohammed Rashid

2017-01-10

VIVEK AGARWAL

body2017
ORDER 1. The appellant has filed this second appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 24.6.2016 passed by the Court of learned Additional District Judge, Sironj, District Vidisha in Civil Appeal No.12-A/2016 arising out of the judgment and decree dated 23.11.2015 passed by the learned Civil Judge Class-I, Sironj, District Vidisha in Civil Suit No.4-A/2013 by slightly modifying the earlier order of the learned Civil Judge wherein a decree of eviction was granted under the provisions of section 12 (1) (a) (c) and (h) of the M.P. Accommodation Control Act, 1961 (hereinafter for short referred to “Act”) to be a decree under only section 12 (1) (a) of the Act. 2. The main ground, on which this second appeal has been filed, is that the learned first appellate Court has overlooked the fact that the entire rent was deposited by the appellant before the trial Court in pursuance to the order dated 22.4.2013 without there being any objection raised by the plaintiff and therefore once the rent was deposited on 6.12.2013 after impleadment of the present appellant as defendant No.2 on 28.10.2013 and on subsequent dates, the decree under section 12 (1) (a) of the Act could not have been granted. It is submitted that since there were no arrears of rent, therefore no decree could have been granted under section 12 (1) (a) of the Act inasmuch as a tenant was required to tender the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for arrears of rent has been served on him by the landlord in the prescribed manner. It is also submitted that once the defendant No.2 was impleaded as a party, therefore the first appellate Court was not justified in holding that defendant No.2, i.e., the present appellant had no locus standi in the matter. 3. It is also submitted that once the defendant No.2 was impleaded as a party, therefore the first appellate Court was not justified in holding that defendant No.2, i.e., the present appellant had no locus standi in the matter. 3. In view of the aforesaid averments, it will be necessary to advert to certain facts, namely, a suit was filed by plaintiff Mohammed Rashid against Mohammed Haroon, but present appellant Munne Khan had filed an application under Order 1 rule 10 of the Code of Civil Procedure seeking his impleadment as defendant No.2 on the ground that he is tenant of Auqaf Committee, Sironj for last 10 years and he is paying rent @ Rs.400/- per month to the President of the said Society, i.e., he had claimed that he is the tenant of Auqaf Committee in relation to the said property. 4. Learned first appellate Court has adverted to the fact that present appellant Munne Khan in his cross-examination has admitted that neither rent deed had been executed by Waqf Committee in his favour nor he had produced any rent receipt. It is also mentioned that he had not called any of the officials of the District Waqf Committee Vidisha or Auqaf Committee, Sironj to show that he is their tenant nor he tried to implead them as parties in the suit. It has also come on record that Munne Khan admitted that earlier Haroon was sitting on the suit shop, and for last 2-3 years Munne Khan is carrying out his business of vegetables from the suit premises. 5. In view of the aforesaid and also adverting to the fact that defendant No.1 Haroon had not filed any appeal against the impugned judgment and decrees, appellant Munne Khan had not challenged the rent deed Ex.P-5 dated 15.2.2007 between the plaintiff and defendant No.1 Haroon, which goes to show that Munne Khan had no locus standi in the matter, therefore his depositing any amount of rent will not create any right so as to challenge decree under section 12 (1) (a) of the Act. Learned Court below has clearly mentioned that the decree passed under section 12 (1) (a) of the Act by the trial Court is just and correct because defendant No.2 Munne Khan has no locus standi to challenge the same as there was no privity of contract between him and the Auqaf. 6. Learned Court below has clearly mentioned that the decree passed under section 12 (1) (a) of the Act by the trial Court is just and correct because defendant No.2 Munne Khan has no locus standi to challenge the same as there was no privity of contract between him and the Auqaf. 6. Learned counsel for the appellant has placed reliance on the judgment of this Court in the case of Dr. Gopaldas and Others v. Rajesh and another, as reported in 2006(1) MPHT 53 , so also on the law laid down in the case of Bhagwandas Pawaiya v. Registered Firm Kailash Narain and Brothers, as reported in 1994 JLJ 174 . The latter judgment deals with the aspect of tenant depositing rent though late and landlord withdrawing the same without any objection as to delay in deposits. It was held that the delay is either waived or condoned and no decree of eviction can be passed under section 12 (1) (a) of the Act. Similarly in the case of Dr. Gopaldas (supra), it has been held that the tenant is required to pay and tender whole of the arrears of rent legally recoverable from him within two months. It has also been held that if the tenant has tendered rent through Money Order and it was refused by the plaintiff-landlord on the ground that it was excess amount than demanded in notice, then the landlord has no cause of action to file suit on the ground of section 12(1)(a) of the Act. 7. Notwithstanding the ratio of law laid down by this Court, the issue, which is of paramount importance in this case, is whether the present appellant was a tenant of the plaintiff and if he was not a tenant of the plaintiff, then tendering of rent by him will not debar the Court from passing a decree of eviction under section 12(1) (a) of the Act against the tenant with whom the plaintiff-landlord had executed an agreement of rent. From the facts of the case, it is apparent that the present appellant was not a tenant but his brother Haroon was a tenant and therefore tendering of rent by the present appellant has no effect on the provisions of section 12(1) (a) of the Act and both the case laws cited by him will not be of any value inasmuch as admittedly the appellant was not a tenant. The aforesaid case laws are applicable in relation to a tenant and not in relation to a third party stranger. 8. Thus, it is apparent that there is no illegality in the impugned judgment and decrees requiring any interference in the hands of this Court as no substantial question of law emerges for adjudication in this second appeal. Accordingly, this second appeal fails and is hereby dismissed.