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2024 DIGILAW 130 (MP)

Gopal Prasad Tiwari v. Sadhana Singh Tomar

2024-01-30

GAJENDRA SINGH

body2024
JUDGMENT : Gajendra Singh, J. This second appeal has been preferred challenging the judgment dated 20-3-2023 passed by learned Fifth Additional District Judge, Dr. Ambedkar Nagar, Mhow, District Indore in Civil Regular Appeal No. 28-A/19 arising out of judgment dated 30-4-2019 in Civil Suit No. 109-A/2014 by IVth Civil Judge, Class I, Indore (M.P.) whereby the decree of eviction has been passed against the appellant/tenant/ defendant on the ground of section 12(1)(f) of M.P. Accommodation Control Act, 1961. 2. The facts as mentioned before the trial Court are that the respondent/plaintiff filed the civil suit on 14-10-2014 for the vacant possession of the portion of house No. 21, Main Street, Mhow, Indore that was in the possession of defendant/appellant on the ground of 12(1)(a), 12(1)(c) and 12(1)(f) of M.P. Accommodation Act, 1961 claiming that the defendant/appellant is the tenant of suit accommodation at the rate of Rs.2500/- per month rent on the basis of rent note dated 1-2-2008 from the husband of the respondent/plaintiff. The death of husband of plaintiff was occurred in the year 2010. An Amount of Rs.97,500/- is due for the period of 1-8-2011 to 31-7-2014 and the accommodation is required bona fide for the purpose of starting business of clothes of his major son and no alternative accommodation is available in the city and the defendant has created the nuisance. 3. The appellant/defendant filed his written statement admitting that he executed the agreement dated 1-2-2008 in favour of the plaintiff and her husband. Additionally, he submitted that after the death of Rajendra Singh, other heirs of Rajendra Singh have not been joined as plaintiff. The tenancy was started for the first time on 1-12-1985 and an amount of Rs.1,00,000/- was also deposited and that amount has not been returned to him. The agreement dated 4-2-2008 is in the nature of agreement to sale. The amount mentioned in the agreement has not been repaid to him. He never denied the title of plaintiff. The plaintiff has not approached the Court with clean hands. She has created documents in the nature of gift deeds to show the absence of all suitable alternative accommodation and prayed for dismissal of suit. 4. Learned trial Court framed the 11 issues and the ground mentioned in 12(1)(f) was decided as not proved and suit filed by Dr. The plaintiff has not approached the Court with clean hands. She has created documents in the nature of gift deeds to show the absence of all suitable alternative accommodation and prayed for dismissal of suit. 4. Learned trial Court framed the 11 issues and the ground mentioned in 12(1)(f) was decided as not proved and suit filed by Dr. Gopal Prasad Tiwari for specific performance of contract was decreed partially allowing only refund of Rs.3,87,700/- with interest. 5. Challenging the judgment dated 30-4-2019 passed by Fourth Civil Judge, Class – I, Mhow in Civil Suit No. 109-A/2014 an appeal was filed by the respondent/Smt. Sudha Singh. The Appellate Court reversing the findings of trial Court regarding bona fide requirement of the suit accommodation decreed the suit of Sadhna Singh Tomar on the ground of 12(1)(f) of M.P. Accommodation Control Act, 1961 and ordered eviction of appellant from suit accommodation. 6. Challenging the judgment dated 20-3-2023 passed by Fifth Additional District Judge, Dr. Ambedkar Nagar, Mhow, District Indore in Civil Regular Appeal No. 28-A/19, this second appeal has been preferred and proposed 10 substantial questions of law which are being referred as below :— 1. Whether, the learned First Appellate Court was justified in reversing the decree passed by the learned trial Court which had dismissed the suit filed by the respondent/plaintiff for eviction, recovery of rent and mesne profits? 2. Whether, the learned First Appellate Court was justified in reversing the decree passed by the learned trial Court which had given cogent reasoning for dismissing the suit filed by the respondent and has not found any ground tenable for eviction under section 12(1)(f) of M. P. Accommodation Control Act, 1961, especially when the learned first appellate Court has affirmed the finding of the learned trial Court under section 12(1)(a) and (c) of M.P. Accommodation control Act 1961? 3. Whether, the learned First Appellate Court was justified in taking a view possible other then he view taken by the learned trial Court? 4. Whether, the learned First Appellate Court was justified in not considering that, if the best evidence is available with either of the parties then the same should be produced, otherwise adverse inference against that party should be drawn? 5. 4. Whether, the learned First Appellate Court was justified in not considering that, if the best evidence is available with either of the parties then the same should be produced, otherwise adverse inference against that party should be drawn? 5. Whether, the learned First Appellate Court was justified in not considering the fact that, plaintiff has not came with the clean hands and has suppressed material facts from the Court and thus not entitled for any relief from the Court? 6. Whether, the learned First Appellate Court was justified in not considering the fact that, trial Court is the best judge for interpretation of the evidence lead before him and first appellate court should deprecate to take a view other than the view taken by the trial Court? 7. Whether, the learned First Appellate Court was justified in reversing the judgment passed by the learned trial Court without assigning just and proper reason thereof? 8. Whether, the learned First Appellate Court was justified in passing the impugned judgment without following the provision of section 12(6) of M.P Accommodation Control Act 1961? 9. Whether, the learned First Appellate Court was justified in passing the impugned judgment without considering the fact that the suit filed by the plaintiff was pre-mature and contrary to the terms of admitted agreement dated 1-2-2008 especially when the payment taken by the plaintiff was not repaid by her? 10. Whether the judgment and decree passed by the learned Appellate Court below suffer from infirmity and perversity on account of mis-appreciation and non-appreciation of material pieces of evidence available on record, thus liable to be set aside ? 7. Firstly, Court is dealing with the proposed question No. 9 in which it is stated that in the light of agreement dated 1-2-2008 (Exhibit-D/2), the suit of the plaintiff is premature. 8. The amount mentioned in Exhibit-D/2 has been repaid in execution of the decree passed in Civil Suit No. 5A/16. 9. In the case of a statutory tenant, the relationship is not governed by contract and eviction can be sought only on the ground available in M.P. Accommodation Control Act, 1961. Thus, the objection regarding bar to institute the suit referring the agreement Ex.D-2 is not sustainable and it does not render the suit as pre-mature. 10. Now we are considering the other proposed questions of law. Thus, the objection regarding bar to institute the suit referring the agreement Ex.D-2 is not sustainable and it does not render the suit as pre-mature. 10. Now we are considering the other proposed questions of law. The conclusion of the appellate Court in para 29, 30 and 31 are based on proper appreciation of evidence. He gave cogent reasons for discarding the reverse finding of the trial Court regarding bona fide requirements of the suit house for the business of his major son and non-availability of alternative suitable accommodation as the house Nos. 284, 482 and 483 are residential and the suit house is non-residential. 11. In Rishi Kumar Govil vs. Maqsoodan, (2007) 4 SCC 465 , it is held that the bona fide personal need being a question of fact should not be normally interfered. Relevant para-14 of the judgment is being referred as below : “14. In Ragavendra Kumar vs. Firm Prem Machinery and Co., AIR 2000 SC 534 , it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Gaya Prasad vs. Pradeep Srivastava, AIR 2001 SC 803 it was held that the need of the landlord is to be seen on the date of application for release. In Prativa Devi vs. T.V. Krishnan, (1996) 5 SCC 353 it was held that the landlord is the best judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with.” 12. In the light of above discussion, no substantial question of law arises even after considering the appeal in the light of Raj Kumar Soni and another vs. State of U.P. and another, (2007) 10 SCC 635 and Vithalbhai Pvt. Ltd. vs. Union of India, 2005 AIR SCW 1509 and the position existing at the date when the suit was instituted. 13. There is no perversity in the findings of the first Appellate Court, so no substantial question of law arises for consideration in this present appeal. This Second Appeal is not fit to admit. Hence, this Appeal is dismissed.