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2010 Supreme(MP) 422
IN THE HIGH COURT OF MADHYA PRADES (GWALIOR BENCH)
Abhay M. Naik, J.
Appellants: Reg. Vidhichand Dharamshala Trust through its President and Trustee Omprakash Garg
Vs.
Respondent: Shyam Singh and Ors.
Misc. Appeal No. 1119/09
Decided On: 14.05.2010
Headnote:(1) Accommodation Control Act, 1961 (M.P.) -- S.3(2) -- Notification No. F-24-(4)-83-XXXII-1, dated 7th September, 1989 -- accommodation owned by trust -- exempts from all the provisions of this Act only when the whole income of trust is utilized for the trust itself -- lower appellate Judge directed to make scrutiny of the evidence on record himself relating to utilization/non-utilization of the entire income of the trust -- his remand order set aside.
Held: He has to consider and make scrutiny only of the evidence on record relating to utilisation/non-utilisation of the entire income of the trust with reference to purposes. This could have been made by the learned lower appellate Judge himself. In the facts and circumstances of the case, the remand was not required at all and the same being unwarranted, appeal is hereby allowed in part. Impugned order is hereby set aside. Learned lower appellate Judge is directed to decide the appeal afresh in the light of the aforesaid discussion within a period of three months from the date of appearance. 1982 MPWN 172 relied on. 1999(2) JLJ 380 (SC) and 1975 JLJ 432 (SC) followed. [Para 22
(2) Practice (Civil) -- suit for eviction -- plaintiff can relinquish any ground at any stage -- it is different from seeking liberty to file a fresh suit on that ground. [Para 10
(3) Civil P.C., 1908 -- O.41 R.27 -- M.P. Public Trusts Act, 1951 -- S.26 -- additional evidence -- cannot be accepted in an appeal -- if party was aware of it from the beginning. [Para 14
(4) Civil P.C., 1908 -- O.6 R.17 -- amendment of suit -- substance of the proposed amendment -- was part and parcel of the record -- such amendment cannot be allowed. [Para 16
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ & /kkjk 3 ¼2½ && vf/klwpuk dz-,Q &24&¼4½&83&32&1] fnukad 7 flracj] 1989 && U;kl ds LokfeRo dk LFkku && bl vf/kfu;e ds mica/kksa ls dsoy rHkh NwV izkIr gSs tc U;kl dh laiw.kZ vk; dk mi;ksx Lo;a U;kl }kjk gh fd;k tk, && fupys vihy U;k;k/kh‘k dks U;kl dh laiw.kZ vk; ds mi;ksx@vuqi;ksx ls lacaf/kr vfHkys[k ij lk{; dh Lo;a laoh{kk djus dk funs‘k && mldk izfriz"k.k vkns‘k vikLrA
vfHkfu?kkZfjr % mls iz;kstuksa ds laca/k esa U;kl dh laiw.kZ vk; ds mi;ksx@vuqi;ksx ls lacaf/kr vfHkys[k ij dso lk{; dh gh laoh{kk djuh gS rFkk bl ij gh fopkj djuk gSA ;g Lo;a fo}ku fupys vihy U;k;k/kh‘k }kjk fd;k tk ldrk FkkA ekeys ds rF;ksa rFkk ifjfLFkfr;ksa esa] izfrizs"k.k dh fdafpr ek= vko‘;drk ugha Fkh rFkk blds vuf/kd`r gksus ds dkj.k] vihy ,rn~}kjk] va‘kr% eatwj dh tkrh gSA vkf{kIr vkns‘k] ,rn~}kjk vikLr fd;k tkrk gSA milatkr gksus ls fnukad ls rhu ekl dh dkykof/k ds Hkhrj iwoksZDr foospuk ds izdk‘k esa vihy dks u, fljs ls fofu‘pr djus dk fo}ku fupys vihy U;k;k/kh‘k dks funs‘k fn;k tkrk gSA 1982 e-iz- ohDyh uksV~l 172 voyafcrA 1999¼2½ ts ,y ts 380 ¼mPpre U;k-½ rFkk 1975 ts ,y ts 432 ¼mPpre U;k-½ vuqlfjrA
¼iSjk 22½
¼2½ izFkk ¼flfoy½ & csn[kyh ds fy, okn && oknh fdlh vk/kkj dk R;kx fdlh Hkh izdze ij dj ldrk gS && ;g ml vk/kkj ij u;k okn izLrqr djus dh Lora=rk dh ekax djus ls fHkUu gSA
¼iSjk 10½
¼3½ flfoy izfdz;k lafgrk] 1908 && vk-41 fu-27 && e-iz- yksd U;kl vf/kfu;e] 1951 && /kkjk 26 && vfrfjDr lk{; && vihy esa Lohdkj ugha fd;k tk ldrk && ;fn i{kdkj dks izkjaHk ls gh blds ckjs esa tkudkjh FkhA
¼iSjk 14½
¼4½ flfoy izfdz;k lafgrk] 1908 & vk-6 fu- 17 && okn dk la‘kks/ku && izLrkfor la‘kks/ku dh fo"k;oLrq && vfHkys[k dk vfuok;Z vax Fkk && ,slk la‘kks/ku eatwj ugha fd;k tk ldrk FkkA
¼iSjk 16½
Abhay M. Naik, J.
1. This appeal has been preferred by the plaintiff/landlord against a remand order dated 15/7/09 passed by the Court of Second Additional District Judge, Gwalior.
2. Short facts, relevant for the purposes of this appeal are that the plaintiff/appellant is a registered Public Trust. It instituted a suit for eviction and recovery of arrears of rent on grounds under Sections 12(1) (a),(b) & (c)of the M.P. Accommodation Control Act, 1961. It is pleaded in the plaint that the plaintiff is the registered Public Trust whose entire income is utilised for public benefits like education, medicine and financial aid to old and helpless persons. It is exempted from the provisions of the M.P. Accommodation Control Act, therefore it is not required to prove any of the grounds under the Act. The tenancy of the defendants has been duly terminated by issuing notice dated 8/5/01. Despite such termination, the defendants did not vacate the suit premises, hence, the suit.
3. Suit of the plaintiff was opposed on various grounds. It was denied that the entire income of the plaintiff/trust was being utilised for the purposes stated in the plaint.
4. Learned trial judge recorded the evidence. Thereafter, at the time of final arguments, it was specifically and expressly stated on behalf of the plaintiff/appellant that grounds under Section 12(1) (a)(b) &(c) were not pressed (thus, Issues Nos. 2,3,4 and 5 pertaining to those grounds were not pressed). Learned trial judge vide his impugned judgment and decree dated 30/9/08, found that the tenancy was duly terminated. It was further found that the plaintiff was a registered Public Trust and was exempted from the provisions of the M.P. Accommodation Control Act, 1961 in view of the Notification dated 7/9/89. Accordingly, the decree for eviction was granted in favour of the plaintiff.
5. Aggrieved by the aforesaid, defendants preferred Civil Appeal No. 1-A/08. During pendency of this appeal, defendants/appellants submitted an application under Order 6 Rule 17 CPC for incorporating paragraph 9 (a) in the written statement. Proposed amendment was that the SDO vide his order dated 12/3/07 has found that the trustees of the plaintiff/trust have misutilised the income of the trust for their personal interest. This apart, the President of the trust, namely, Shri Raghav Garg has admitted in paragraph 12 of his statement that the suit property is not included in the trust deed. Accordingly, the plaintiff is not entitled to benefit under Sub-section (2) of Section 3 of the M.P. Accommodation Control Act, 1961.
6. An application under Order 41 Rule 27 CPC was also submitted by the tenants/defendants before the lower appellate court, which was accompanied by certified copy of order dated 19/12/06 passed by the Registrar Public Trust (SDO) and photocopy of the certified copy of the order dated 12/3/07 passed by the Registrar Public Trust (SDO). Learned lower appellate court vide impugned judgment set aside the judgment and decree of the trial court. It allowed the application under Order 6 Rule 17 CPC and granted permission to take documents on record submitted by the defendants/tenants. Plaintiff was also directed to make consequential amendments and to submit documents in rebuttal. Learned trial judge was thereafter directed to record necessary evidence and decide the suit afresh. It also directed the learned trial judge to decide Issue Nos. 2 to 5 on merits despite the fact that they were not pressed, in specific, by the plaintiff, as clearly mentioned in the judgment of the trial court. Aggrieved by the aforesaid, present appeal has been preferred.
7. Shri M.B. Mangal, learned Counsel for the appellant and Shri V.K. Bhardwaj, learned Senior Advocate assisted by Shri Raja Sharma, Advocate for the respondents made their respective submissions which have been considered in the light of the material on record.
8. It has been contended by Shri Mangal, learned Counsel for the appellant that the learned
