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2007(2) JLJ 23
Rajendra Menon, J.
Vinod Kumar Agrawal v. Chandrakant Pandey and another
Second Appeal No.415 of 2002 (Gwalior) : against the
judgment and decree passed by Smt. Meena Singh,
VI Additional District Judge, Gwalior, in Civil Appeal No.17-A of 2001
affirming the judgment and decree passed by Qamar Iqbal Khan,
VIII Civil Judge, Class II, Gwalior in
Civil Suit No. 59-A of 1998; Decided on 2.3.2007.
Whether the Courts below have acted illegally in dismissing the suit for arrears of rent? [Para 10
Held: The question framed is as to whether the suit was liable to be decreed for non-payment of arrears of rent. Question of payment of arrears which was in dispute between the parties was decided for the first time on 5th January, 2001 and immediately thereafter as per the directions given by the learned Court, the entire arrears have been cleared by the defendants. Both the trial Court and the first appellate Court have recorded a finding that after the order was passed on 5th January, 2001, the defendants have not committed any default and therefore, the Courts below have rightly rejected the prayer for decreeing the suit on the ground of arrears of rent. 1977 JLJ 817 overruled in 2000(2) JLJ 1 (SC), (2005)7 SCC 211, (2003)1 SCC 123, (2000)10 SCC 193, (1995) Supp. (1) SCC 418, (1994) Supp. (1) SCC 437, (1990)4 SCC 40, (1989)4 SCC 612, (1988)1 SCC 363,AIR 1967 SC 405, AIR 1965 SC 101, AIR 1964 SC 1341, AIR 1954 SC 758 and (2001)1 JLJ 351 distinguished. 2005(1) MPLJ 331 and (2003)2 SCC 577 followed. [Paras 10 & 16
(2) Accommodation Control Act, 1961 (M.P.) -- S.13(1) -- dispute as to payment of rent denied in written statement -- no separate application for condonation of delay is required to be filed. 1997 JLJ 817 and 1994 JLJ 26 relied on. [Para 14
(3) Accommodation Control Act, 1961 (M.P.) -- S.12(1) (b) -original landlords accepting rent from alleged sub-tenants for 29 years without any objection -- decree on ground of sub-tenancy rightly refused.1997(2) JLJ 127, 1996(II) MPJR 239, 1986 JLJ 780 and (2002)3 see 626 distinguished. [Paras 25 & 26
(4) Accommodation Control Act, 1961 (M.P.) -- S.12(1) if) -- eviction decree on ground of requirement for starting business -- plaintiff already in business -- previously decree obtained on same ground in respect of another premises -- that premises sold -- need is not bona fide. SA No.74 of 1981, SA No.74 of 1992, 1975JLJ 1, 1965 JLJ 973 and 1997(1) MPLJ 232 relied on. 2001(2) JLJ 196 and 1992(1) MPJR 191 distinguished. [Para 28
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz½ && /kkjk 12¼1½¼d½ rFkk 13¼1½¼2½ && U;k;ky; ds vkns‘k ds i‘pkr~ leLr HkkM+ fuf{kIr && /kkjk 12¼1½ ds v/khu csn[kyh dh fMØh ikfjr ugha dh tk ldrhA D;k fupys U;k;ky;ksa us HkkM+s ds cdk;k ds ckn okn dks [kkfjt djds voS/k rkSj ij dk;Z fd;k gS\ ¼iSjk 10 vfHkfu/kkZfjr % fojfpr iz‘u ;g gS D;k okn HkkM+s ds cdk, ds vlank; ds fy, fMØhr fd, tkus ;ksX; FkkA cdk, ds lank; dk iz‘u tks fd i{kdkjksa ds chp oknxzLr Fkk izFke ckj 5 tuojh 2001 dk fofuf‘pr fd;k x;k rFkk rRi‘pkr~ rqjar fo}ku U;k;ky; }kjk fn, x, funs‘kkuqlkj] izfrokfn;ksa }kjk leLr cdk;k lanÙk dj fn;k x;kA fopkj.k U;k;ky; rFkk izFke vihy U;k;ky;] nksuksa }kjk fu"d"kZ vfHkfyf[kr fd;k x;k gS fd 5 tuojh 2001 dh vkns‘k ikfjr gksus ds i‘pkr~] izfrokfn;ksa }kjk dksbZ O;frØe ugha gqvk gS] rFkk blfy, HkkM+s ds cdk, ds vk/kkj ij okn fMØhr djus dh izkFkZuk fupys U;k;ky;ksa }kjk Bhd&gh ukeatwj dh xbZ gSA 2000¼2½ ts ,y ts 1 ¼mPpre U;k-½ esa myVk x;kA 1977 ts ,y ts 817] ¼2005½7 ,l lh lh 211] ¼2003½1 ,l lh lh 123] ¼2000½10 ,l lh lh 193] 1995 lIyh- ¼1½ ,l lh lh 418] 1994 lIyh- ¼1½ ,l lh lh 437] ¼1990½4 ,l lh lh 40] ¼1989½4 ,l lh lh 612] ¼1988½1 ,l lh lh 363] , vkb vkj 1967 ,l lh 405] , vkb vkj 1965 ,l lh 101] , vkb vkj 1964 ,l lh 1341] , vkb vkj 1954 ,l lh 758 rFkk 2001¼1½ ts ,y ts 351 izHksfnrA 2005¼1½ ,e ih ,y ts 331 rFkk ¼2003½2 ,l lh lh 577 vuqlfjrA ¼iSjk 10 ,oa 16 ¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 13¼1½ && HkkM+s ds lank; dk fookn dk fyf[kr dFku esa izR;k[;ku && foyac dh ekQh ds fy, i`Fkd~ vkosnu Qkby fd;k tkuk visf{kr ugha gSA 1977 ts ,y ts 817 rFkk 1994 ts ,y ts 26 voyafcrA ¼iSjk 14 ¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½¼[k½ && ewy Hkw&Lokfeksa }kjk fcuk dksbZ vk{ksi ds 29 o"kZ ls mi&vfHk/kkfj;ksa ls HkkM+k Lohdkj fd;k tkrk jgk && mi&vfHk/k`fr ds vk/kkj ij fMØh Bhd&gh ukeatwjA 1997¼2½ ,e ih ts vkj 239] 1986 ts ,y ts 780 rFkk ¼2002½3 ,l lh lh 626 izHksfnrA ¼iSjk 25 ,oa 26 ¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½¼p½ && dkjckj izkjaHk djus dh vko‘;drk ds vk/kkj ij csn[kyh dh fMØh && oknh dk iwoZ ls gh dkjckj && iwoZ esa ,d vU; ifjlj ds laca/k esa mlh vk/kkj ij fMØh izkIr && ml ifjlj dk foØ; fd;k x;k && vko‘;drk okLrfod ugha gSA f}rh; vihy Ø-74 lu~ 1981] f}rh; vihy Ø-74 lu~ 1992] 1975 ts ,y ts 1] 1965 ts ,y ts 973 rFkk 1997¼1½ ,e ih ,y ts 232 voyafcrA 2001¼2½ ts ,y ts 196 rFkk 1992¼1½ ,e ih ts vkj 191 izHksfnrA ¼iSjk 28
1. This is plaintiffs second appeal under section 100 of CPC assailing the concurrent judgments and decrees passed by the Courts below in the matter of dismissing a suit for eviction filed by the plaintiff against the respondents.
2. Suit filed by the plaintiff-appellant against the respondents for eviction from the suit premises comprising of a room in the first floor of a building situated in Madhoganj, Lashkar, Gwalior along with a tin shed in the upper floor on the grounds contemplated under section 12(1)(a), i.e., arrears of rent, 12(1)(f), i.e., bona fide need, 12(1)(b), i.e., sub-letting and 12(1)(c), i.e., nuisance under the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as "the Act") has been dismissed concurrently by both the Courts, and therefore, this second appeal by the plaintiff.
3. The second appeal was admitted on 25th September, 2002 for consideration of the following 4 substantial questions of law:
(1) Whether the payment of rent by a sub-tenant in the name of tenant validates the sub-tenancy created unlawfully in contravention of section 14 of the M.P. Accommodation Control Act?
(2) Whether the Courts below are unjustified in not applying the objectivity test and further in considering the irrelevant factors like partnership business of the plaintiff with his father and the occupied property owned by the mother?
(3) Whether the Courts below have erred in law in not considering the obstruction caused by the Gumti in the passage?
(4) Whether the Courts below have acted illegally in dismissing the suit for arrears of rent?
4. As far as question No. (3) with regard to obstruction caused in the passage of the suit premises is concerned. Shri A.K. Chitley, learned senior counsel for the appellant at the very outset submitted that he does not press the same now in this appeal. Accordingly, the appeal is considered only with regard to questions No. (1), (2) and (4) as reproduced hereinabove.
5. Certain facts necessary for deciding the appeal are that the suit property initially belonged to Shri Gopal Krishna and Ramkrishna Chhaparwal. It is the case of the plaintiff that they had given the suit premises on a rent of Rs 40/- per month to one Ganesh Ram Sharma, husband of the original defendant No.1 Smt. Laxmibai. It is stated that after death of Ganesh Ram Sharma, the original defendant No.1 Smt. Laxmibai became tenant of the suit premises. She paid rent up to 31st March, 1990 to the original landlords, Shri Gopal Krishna and Ram Krishna. Both these persons, it is stated have sold the property vide registered sale-deed dated 19th February, 1993 to one Somdutt Saboo. In the sale-deed it is mentioned that Ganesh Ram Sharma is tenant in the suit premises. Somdutt Saboo vide another sale-deed dated 31st March, 1997 through his power of attorney holder sold the property to the present plaintiff-appellant. In this sale-deed, it is mentioned that Ganesh Ram Sharma was a tenant in the suit premises. After his death, the defendant No.1, Smt. Laxmibai is tenant in the suit premises and rent of the suit premises is due which also stood transferred to the purchaser of the property.
6. On the ground that Smt. Laxmibai has sublet the property without his consent to the defendants No.2 and 3, the respondents No.1 and 2 herein in this appeal, she has parted with the possession of the property in favour of the respondents No.2 and 3 who have installed a wooden Gumti in the passage leading to the plaintiffs house thereby creating obstruction and nuisance, rent of the suit premises has not been paid since 1990 and that the plaintiff require the suit premises for carrying out his own business of readymade garments, the suit was filed on the grounds contemplated under section 12(1)(a), (t), (c) and (b) of the Act.
7. Defendants appeared and filed their written statement and it was the case of the defendants that Ganesh Ram Sharma and Narayanibai, his sister were the original tenants and both were running a Bhojan
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