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1979 Supreme(MP) 116
HIGH COURT OF MADHYA PRADESH
P.D. Mulye, J.
Mohammad Ishak and others
v.
Hafiz Ibrahim and others
S.A. No. 359-1975: against appellate decree passed by A.G. Qureshi District Judge, Mandsaur reversing the decree passed by Shri R.C. Joshi, Civil Judge, Class II, Mandsaur
Decided on : 19-8-1979
S.L. Garg for appellants
S.D. Sanghi for respondents
Headnote:(1) Evidence Act. 1872-S. 114-presumptinn as to refusal of the Money Order-when may be drawn-matters to be proved.
There being no evidence about the despatch and tender of the money orders and the demand draft, question of drawing any presumption under section 114 of the Evidence Act, that they were tendered and refused, does not arise at all in absence of any satisfactory and convincing evidence adduced by the defendants. If the address had been properly and correctly written on these money order coupons, it could be presumed that the amount sent by these money orders, was refused by the plaintiffs only and not by anyone else. [Para 12
(2) Accommodation Control Act, 1961 (MP)-S. 12 (1) (a)-tender of rent by money-order or draft-plaintiff denying refusal of M.O. or draft-matters to be proved by the defendant-tenant.
When the plaintiffs have denied any tender of the money-orders as also the deemand draft, then it was the defendant's duty to lead evidence to show that it were those money-orders or the demand draft, which were tendered to the plaintiffs and that, it were the plaintiffs who had refused to accept it. In order to draw a presumption, it must be proved that the money-order properly addressed to the person to whom it is meant to be delivered, was handed to the postal-authorities, and that the postal authorities issued the postal receipts in token of the money thus received.
Merely because the defendants got the demand draft prepared, does not necessarily mean, that it was dispatched to the person concerned, unless there is some evidence to that effect. [Para 12
(3) Accommodation Control Act, 1961 (MP)-S. 25-landlord not accepting rent tendered-tenant should deposit under section 25. [Para 12
(4) Accommodation Control Act, 1961 (MP)- S. 12 (l) (a)-tender should be made after the service of notice of demand-rent tendered prior to the notice-is not compliance of the provision.
Section 12 (1) (a) of the Act specifically contemplates that the tenant is duty bound to pay or remit the arrears of rent, within 2 months from the date of the service of notice of demand by the landlord, and if he fails to pay or tender the same within that statutory period, the landlord gets the right to evict the tenant on this ground. [Para 13
(5) Accommodation Control Act 1961 (MP)-Ss. 13 (l) and 2 (i)-minor defendant tenants -should comply with the provisions-cannot wait for appointment of guardian.
The definition of tenant does not make any distinction between a major and minor tenant and the rent deposited by the major tenant shall be deemed to have been deposited on behalf of all the tenants, who have inherited the tenancy from the original tenant as in the present case and in the circumstances, the minor defendants cannot take any advantage of the fact that a guardian was appointed for them in the suit on 8-12-1971. The appointment of a guardian is for the purpose of the suit as contemplated by the provisions of Order 32 Code of Civil Procedure: and it has nothing to do with the provisions of section 13 (1) of the said Act. [Para 14
(6) Accommodation Control Act, 1961 (MP)-Ss. 12 (1) (h) and 18 condition of building not relevant-change in the plan-is not material.
The condition of the building is not a relevant factor, so far as the ground under section 12 (1) (h) of the Act is concerned. 1977 JLJ 449 relied on. [Para 15
On reconstruction, it is liable to be some change. Section 18 of the Act refers to a part of the accommodation. [Para 15
(7) Transfer of Property Act. 1882-S. 106- objection as to legality of quit notice-should be clearly taken in the written statement and grounds, should be given. [Para 16
Mulye J.- 1. This second appeal filed by the defendants, is directed against the judgment and decree passed by the District Judge, Mandsaur, in Civil Regular Appeal No. 53-A of 1973, on 9th May, 1975, decreeing the plaintiffs' suit for ejectment on the grounds under section 12 (1) (a) and section 12 (1) (h) of the M.P. Accommodation Control Act, 1961, by upsetting the judgment and decree of the trial Court, which had dismissed the plaintiffs' suit for ejectment.
2. The short facts giving rise to this appeal are as follows :-
The plaintiffs are partners of the firm M/s. Jamaluddin Ibrahim, M.T. Cloth Market, Indore, the plaintiffs are the owners of House No.121 situated at Kalidas Marg, Mandsaur, which they purchased from one Ahsan Ahmed and 3 others on 29-7-1908. One late Mohammad Yusuf was occupying the suit accommodation as a tenant at a monthly rent of Rs. 31/. Per month. After the death of Mohammad Yusuf, the defendant-appellants being his heirs, are in possession of the suit accommodation as a tenant. The previous owners Ahsan Ahmad and others, immediately after the same in favour of the plaintiffs, intimated late Mohammad Yusuf about the sale of the said house, to the plaintiffs, and asked him to pay the rent at the same rate since 1-8-1968 to the plaintiffs. The plaintiffs also gave a notice to Mohammad Yusuf on 10-3-1969, through their counsel intimating him that they have purchased the said house. Thus, Mohammad Yusuf became the plaintiffs' tenant, in respect of the suit accommodation at a monthly rent of Rs. 31/-, and the tenancy commencing on the 12th day of every English calender month.
3. The tenant Mohammad Yusuf had paid rent till 31-7-1968 to the Predecessor-in-title of the plaintiffs. But he did not pay any rent to the plaintiffs from 1-8-1963. The plaintiffs, therefore, on 24-12-1969, sent a notice to their tenant Mohammad Yusuf through their counsel demanding arrears of rent from 1-8-1968 to 11-12-1969, at the rate of Rs.31/- per month. By the said notice, his tenancy was also terminated w.e.f. II. 2. 1970 and in the alternative, he was also given an option. This notice was served on the tenant an 31-12-1969, but, he did not pay or remit any rent to the plaintiffs. But, he sent a reply of this notice on 24-3-1970, through his counsel.
4. Subsequently, the plaintiffs came to know that their tenant Mohammad Yusuf had expired on 29-8-1969, and the defendant-appellants, who are his heirs, became the plaintiffs' tenant. Therefore, the plaintiffs through their counsel sent another registered notice Ex. P-10, on 12-8-1970, demanding a sum of Rs. 755.35 P., on account of rent at the rate of Rs. 31/- per. Month from 1-8-1968 to 11-8-1970 and by this notice, also terminated their tenancy with effect from the mid night of 11-10-1970. By this notice, the defendants had also been given an option that in case, they thought that their month of tenancy does not expire on the 11th of the English month but on some other date of the British calender month, or that the monthly tenancy commences according to the Hindi Calendar month, then they might vacate the suit portion whenever according to them their month of tenancy ends, after a month of the service of this notice on them. The said notice sent by registered post was received by the defendants on 18-8-1970. The defendants through their counsel gave reply to this notice on 13-10 1970 vide Ex. P-11, but neither paid, nor remitted the arrears of rent to the plaintiffs within the statutory period of 2 months, nor vacated the suit accommodation. By the said quit notice, the plaintiffs sought possession of the suit accommodation on the ground that they wanted to reconstruct the house.
5. The plaintiffs, therefore, filed a suit for ejectment in the trial Court on 7-12-1970, stating all these facts therein. The plaintiffs claimed Rs. 817/- on account of arrears of rent from 1-8-1968 till 11-10-1970, and mesne profits of Rs. 56 from 12-10-70 upto 7-12-1970.
6. Further according t
