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2011 Supreme(MP) 701
2012 (I) MPWN 29
A.K. Shrivastava, J.
Poonam Khandelwal @ Poornima Khandelwal (Smt.)
v. Pankaj Khandelwal
Second Appeal No. 857 of 2009 (J);
Decided on : 9.9.2011.
Headnote:(1) Contract Act, 1872 -- Ss. 2 (h) and 2 (g) -- M.P. Accommodation Control Act, 1961 -- S. 12 (1) -- in compromise decree condition was made that no eviction suit shall be filed earlier to 30 years -- that condition is void since it is not enforceable by law. 1999 (2) JLJ 185 relied on. [Para 15]
(2) Accommodation Control Act, 1961 (M.P.) -- S. 12 (1) (f) -- bona fide need should be seen on the date of filing of suit. [Para 17]
(3) Accommodation Control Act, 1961 (M.P.) -- S. 12(1) (f) – alternative accommodation must be of landlord‘s own. [Para 19]
¼1½ lafonk vf/kfu;e] 1872 & /kkjk 12 ¼t½ rFkk 2 ¼N½ & e-iz- LFkku fu;a=.k vf/kfu;e] 1961 & /kkjk 12 ¼1½ & le>kSrs dh fMdzh esa ;g ‘krZ ntZ dh xbZ fd 30 o"kZ ls iwoZ csn[kyh dk okn Qkby ugha fd;k tk;sxk & og ‘krZ ‘kwU; gS D;ksafd ;g fof/k )kjk izorZuh; ugha gS A 1999 ¼2½ ts ,y ts 185 voyafcr A
¼iSjk 15
¼2½ LFkku fua;=.k vf/kfu;e] 1961 ¼e-iz-½ /kkjk & 12 ¼1½ ¼p½ & okLrfod vko‘;drk okn Qkby djus ds fnuakd dks ns[kk tkuk pkfg, A
¼iSjk 17
¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ /kkjk & 12 ¼1½ ¼p½ & vkuqdfYid LFkku Hkw&Lokeh ds Lo;a dk gksuk pkfg, A
¼iSjk 19
1. Heard Shri N.S. Ruprah, learned counsel for the appellants on the question of admission.
2. This is tenants' second appeal having lost from the both the Courts below.
3. The plaintiff filed suit for eviction that his sons have become major and are sitting idle, therefore, plaintiff required the suit accommodation to start the business of electrical goods for his sons as envisaged under section 12 (1) (f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act").
4. Learned Trial Court decreed the suit of plaintiff.
5. During pendency of the first appeal of tenants two applications were filed by them. First, under Order XL1 Rule 27 CPC seeking permission to adduce additional evidence and second under Order VI Rule 17 CPC to amend the written statement.
6. Learned First Appellate Court heard learned counsel for the parties and dismissed the appeal not only on the merit, but the aforesaid applications have also been dismissed by the impugned judgment and decree.
7. In this manner this second appeal has been filed by the appellants.
8. Three points have been highlighted and pressed by Shri Ruprah, learned counsel for the appellants. The first contention of his is that earlier eviction proceedings were initiated by the landlord before the Rent Controlling Authority which came to an end on 23.1.1991 in compromise and it was agreed between the parties that no eviction suit shall be filed before the expiry of 30 years and therefore, the present suit which has been filed on 12.5.1999 is not maintainable, and eventually, the learned two Courts below erred in substantial error of law in decreeing the suit. The contention of learned counsel is that though under section 12 (1) of the Act non obstante clause is very much there, but, it relates to only contract and not a compromise order and because the contract and compromise are two distinct things, therefore, if the parties have compromised that no eviction suit shall be filed within 30 years and accordingly if a compromise decree has been passed by the Rent Controlling Authority, since no eviction suit could be filed within 30 years, therefore, the present suit which has been filed on 12.5.1999 is not maintainable.
9. The second submission of learned counsel is that the application under Order XLI Rule 27 CPC has been wrongly dismissed by learned First Appellate Court and similarly the application under Order VI Rule 17 CPC to amend the written-statement has been wrongly dismissed. To substantiate his arguments it has been argued by learned counsel that during the pendency of the first appeal certain properties which includes six shops were purchased by the plaintiff and if in fact the need of plaintiff's sons was bona fide, his sons could have started their business in these shops which plaintiff bought. Hence, the need cannot be said to be bona fide and learned First Appellate Court erred in substantial error of law in dismissing the application under Order XLI Rule 27 CPC.
10. So far as the rejection of application to amend the written statement is concerned, learned counsel submits that at the time of consideration of the amendment application, the merit of the amendment cannot be taken into account and if that would be the position, since learned First Appellate Court has taken into account the merit of the amendment application, its approach is contrary to law and therefore, impugned judgment be set aside.
11. The third and last submission which learned counsel has put emphasis is that looking to the pleadings vis-a-vis to the oral and documentary evidence placed on record it is proved that the plaintiff is having several alternative non-residential accommodation of his own in which he could have asked his sons for whom the suit premises is being vacated to start the business. In this context he has invited my attention to para 44 and 46 of the judgment by learned First Appellate Court.
12. On these premised submissions it has been put forth by learned counse
