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IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Tarunveer Singh v. Mahesh Prasad Bhargava
Second Appeal No. 350 of 2003; against the judgment and decree dated 11.7.2003 passed by VII Additional District Judge, Gwalior in Civil Appeal No. 29A/2002 reversing the judgment and decree dated 2.8.2002 passed by IV Civil Judge, Class II, Gwalior in Civil Suit No. 126A/1998; Decided on 21.12.2017
(2) Civil P. C., 1908 -- O.41 R. 27 -- document filed at appellate stage along with printed list of document -- printed list of document cannot be treated as application under O.41 R. 27 -- additional evidence cannot be filed at appellate stage by way of right -- obligatory to satisfy Court that notwithstanding due diligence, such evidence was not within his knowledge or could not be produced by him at or before passing of decree.
[Paras 35 & 36
(3) Civil Court Rules, 1961 (M.P.) -- Ch.22, R.466(2) -- M.P. Accommodation Control Act, 1961 -- S.13 (1) -- no document filed to show that permission was sought from Court -- claim of non-acceptance of arrears of rent by CCD is nothing but an afterthought. 1973 JLJ 469 relied on. 1979 MPRCJ 131 distinguished. [Para 39
(4) Accommodation Control Act, 1961 (M. P.) -- Ss. 13 (1) and 12 (1) (a) -- application seeking extension of time is a must -- arrears of rent not deposited within one month from date of service of summons -- without issuing notice and hearing plaintiff -- without any application for extension of time -- trial Court should not have condoned delay in depositing arrears of rent -- valuable right of decree of eviction accrued in favour of plaintiff -- cannot be taken away without following procedure as provided under law. (2003) 7 SCC 52 followed. [Para 48
(5) Accommodation Control Act, 1961 (M. P.) -- S.13 (1) -- trial Court did not have suo motu power to extend time in depositing rent -- in absence of any application seeking extension of time, trial Court did not have power to condone delay in depositing arrears of rent. (2003)7 SCC 52 followed. [Para 49
(6) Civil P. C., 1908 -- S.100 -- M. P. Accommodation Control Act, 1961 -- S. 12 (1) (f) -- bona fide requirement for non-residential purpose -- is a finding of fact -- concurrent findings of fact by both Courts below -- re-appreciation of evidence and interference with findings of fact not permissible in second appeal -- this Court can interfere with concurrent findings of fact only when a substantial question of law arises -- Courts below neither ignored any material fact, nor considered any inadmissible evidence -- no substantial question of law arises. (2016)3 SCC 78, (2001) 9 SCC 521, (2007)1 SCC 546, (2010)13 SCC 216 and 1965 JLJ 973 (SC) followed. [Paras 55, 61 & 66
(7) Accommodation Control Act, 1961 (M. P.) -- S.13 (1) --application for extension of time -- not filed before trial Court -- nor laid down any foundation in this regard -- filed first time before this Court -- cannot be accepted. 2002 (2) JLJ 69 (SC) followed. ILR 2009 MP 1067 relied on. [Para 44
(8) Accommodation Control Act, 1961 (M. P.) -- Ss.13 (1) and 12 (1) (a) - last date for depositing arrears of rent was 27th of March 1997 -- Court as well as CCD section working on said date -- no explanation given as to why rent was not deposited on 27th and 28th of March 1997
-- arrears of rent not deposited within a period of one month from date of service of summons -- appellant cannot seek protection from decree of eviction. S. A. No. 260 of 1999 relied on. [Paras 45 & 46
(9) Practice -- defendant did not admit receipts -- plaintiff did not examine anybody to prove said receipts - trial Court committed manifest error in marking them as exhibits. 1996 JLJ 509 relied on. [Paras 64 & 65
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 13¼1½ && e-iz- lk/kkj.k [kaM+ vf/kfu;e] 1957 && /kkjk 2¼23½ && HkkM+s dk cdk;k ^^,d ekl^^ ds Hkhrj fu{ksi fd;k tkuk visf{kr gS] 30 fnu ds Hkhrj ugha@, vkb vkj 1978 xqt- 149 voyafcrA ¼iSjk 24 ,oa 25
¼2½ flfoy izfØ;k lafgrk] 1908 && vk-41 fu-27 && nLrkost] eqfnzr nLrkost ds lkFk vihyh izØe Qkby && eqfnzr lwph nLrkost vk-41 fu-27 ds v/khu vkosnu ugha ekuk tk ldrk && vfrfjDr lk{; vihyh izØe ij vf/kdkjiwoZd Qkby ugha fd;k tk ldrk && U;k;ky; dk ;g lek/kku djuk ck/;dj gS fd lE;d rRijrk ds gksrs gq, Hkh] og lk{; mldh tkudkjh esa ugha Fkk vFkok fMØh ikfjr fd, tkus ds le; ;k iwoZ mlds }kjk is'k ugha fd;k tk ldrk FkkA ¼iSjk 35 ,oa 36
¼3½ flfoy U;k;ky; fu;e] 1961¼e-iz-½ && v/;k; 22] fu-466¼2½ && e-iz- LFkku fu;a=.k vf/kfu;e] 1961 && /kkjk 13¼1½ && ;g n'kkZus ds fy, nLrkost Qkby ugha fd U;k;ky; ls vuqKk pkgh xbZ Fkh && lh lh Mh HkkMs ds cdk;k dh vLohd`fr dk nkok vuqcks/k ds flok; dqN ughA 1973 ts ,y ts 468 voayfcrA 1979 ,e ih vkj lh ts 131 izHksfnrA ¼iSjk 39
¼4½ LFkku fu;a=.k vf/kfu;e] 1961¼e-iz-½ && /kkjk 13¼1½ rFkk 12¼1½ ¼d½ && le; c<+k, tkus dh bZIlk dk vkosnu vko';d gS && HkkM+s dk cdk;k lwpuk dh rkehy gksus ds fnukad ls ,d ekl Hkhrj fuf{kIr ugha && lwpuk tkjh fd, fcuk vkSj oknh dks lqus fcuk && l;e c<+k, tkus ds fy, vkosnu ds fcuk && fopkj.k U;k;ky; dks HkkM+s dk cdk;k fu{ksi djus esa foyac ekQ ugh djuk pkfg, Fkk && csn[kyh dh fMØh dk ewY;oku vf/kdkj oknh ds i{k esa izksnHkwr gks x;kA && fof/k ds v/khu ;Fkk micaf/kr izfØ;k dk ikyu fd, fcuk Nhuk ugha tk ldrkA ¼2003½ 7 ,l lh lh 52 vuqlfjrA ¼iSjk 48
¼5½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 13¼1½ && fopkj.k U;k;ky; dks HkkM+k fuf{kIr djus dk le; Loizsj.kk ls c<+kus dh 'kfDRk ugh Fkh && le; c<+k, tkus dh bZIlk ds vkosnu ds vHkko esa] fopkj.k U;k;ky; dks HkkM+s dk cdk;k fuf{kIr djus es foyac ekQ djus dh 'kfDRk ugha Fkh ¼2003½ 7 ,l lh lh 52 vuqlfjrA ¼iSjk 49
¼6½ flfoy izfØ;k lafgrk] 1908 && /kkjk 100 && e-iz- LFkku fu;a=.k vf/kfu;e] 1961 && /kkjk 12¼1½¼p½ && fuoklsrj iz;kstuksa ds fy, okLrfod vko';drk && rF; dk fu"d"kZ gS && fupys nksuks U;k;ky;ksa }kjk rF; ds ,d gh fu"d"kZ && lk{; dk iwuewY;kadu rFkk rF; ds fu"d"kZ esa gLr{ksi f}rh; vihy esa vuqKs; ugha && ;g U;k;ky; rF; ds ,d gh fu"d"kZ esa dsoy rc gLr{ksi dj ldrk gS tc fof/k dk lkjoku iz'Uk mn~Hkwr gksrk gks && fof/k dk lkjoku iz'u mnHkwr ugha gksrkA ¼2016½ 3 ,l lh lh 78] ¼2001½ 9 ,l lh lh 521] ¼2007½ 1 ,l lh lh 546] ¼2010½ 13 ,l lh lh 216 rFkk 1965 ts ,y ts 973 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 55] 61 ,oa 66
¼7½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 13¼1½ && le; c<+k, tkus ds fy, vkosnu && fopkj.k U;k;ky; ds le{k Qkby ugha fd;k x;k && u bl ckjs esa dksbZ vk/kkj fy;k x;k && igyh ckj bl U;k;ky; ds le{k Qkby fd;k x;k && Lohdkj ugha fd;k tk ldrkA 2002¼2½ ts ,y ts 69¼mPpre U;k-½ vuqlfjrA vkb-,y-vkj 2009 e-iz- 1067 voyafcrA ¼iSjk 44
¼8½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 13¼1½ rFkk 12¼1½ ¼d½ && HkkM+s dk cdk;k fuf{kIr djus ds fy, vafre frfFk 27 ekpZ 1997 Fkh && mDr fnukad dks U;k;ky; ds lkFk&lkFk lh lh Mh vuqHkkx Hkh dk;Zjr && bl ckjs esa dksbZ Li"Vhdj.k ugha fd;k x;k fd HkkM+k 27 vkSj 28 ekpZ 1997 dks D;ksa fuf{kIr ugha fd;k x;k && HkkM+s dk cdk;k lwpuk dh rkehy ds fnukad ls ,d ekl dh vof/k ds Hkhrj fuf{kIr ugha && vihykFkhZ csn[kyh dh fMØh ls laj{k.k dh bZIlk ugha dj ldrkA f}rh; vihy Ø-260 lu~ 1999 voyafcrA ¼iSjk 45 o 46
¼9½ izFkk && izfroknh us jlhnsa Lohdkj ugha dh && oknh us mDr jlhns lkfcr djus ds fy, fdlh dk ijh{k.k ugha fd;k && fopkj.k U;k;ky; us mUgs izn'kZ ds :i esa fpfUgr dj izdV xyrh dhA 1996 ts ,y ts 509 voyafcrA ¼iSjk 64 ,oa 65
Ahluwalia, J. -- 1. This Second Appeal under section 100 of Civil Procedure Code, has been filed against the judgment and decree dated 11.7.2003 passed by VIIth A.D.J., Gwalior in Civil Appeal No. 29A/2002 reversing the judgment and decree dated 2.8.2002 passed by IVth Civil Judge, Class II, Gwalior in Civil Suit No. 126A/1998.
2. This appeal has been filed by the tenant. The appeal was admitted on the following Substantial Questions of Law :
“(i) Whether the deposit of the arrears of rent by the defendant (served with the summons on 27-2-97) on 1-4-97 will be deemed to be in compliance of section 13(1) of the M.P. Accommodation Control Act on account of non-acceptance of rent by the C.C.D. section on 29th,30th, and 31st March, 97 due to closure?
(ii) Whether the discretion exercised by the learned trial Judge in condoning the delay has been illegally interfered with by the learned Lower appellate Judge?
(iii) Whether the accompanying application under section 13(1) of the M.P. Accommodation Control Act deserves to be allowed in the peculiar facts and circumstances of the case and consequently the delay caused in the initial deposit is liable to be condoned?
3. The respondent also filed a cross-objection which has been admitted on the following Substantial Question of Law :
Whether the learned Courts below erred in not decreeing the suit on the ground under sections 12(1)(c) and 12(1)(f) of the M.P. Accommodation Control Act?
4. The necessary facts for the disposal of the present appeal in short are that the respondent filed a suit for eviction on the ground of arrears of rent and bonafide requirement for nonresidential purposes. The appellants are the Legal Representatives of the deceased original defendant Harbhajan Singh.
5. A suit was filed on the ground that plaintiff is the owner of the shop situated in front of the Hospital, Mall Road, Morar, Gwalior (Shall be referred as “suit shop” in short). The appellant/defendant is the tenant in the suit shop at monthly rent of Rs. 700/- per month. The tenancy is oral and starts from 1st day of every calender month and ends on the last day of the month. The appellant/defendant is the tenant from July 1986 and is running a business in the name and style Sachdeva Medical Hall. The son of the plaintiff/respondent is major and is aged about 20 years and is unemployed. The plaintiff/respondent was working in Jiyaji Rao Mills Limited, however, due to closure of the Mill in the year 1992, he too has become unemployed. In order to earn livelihood, the plaintiff/respondent has become agent of Life Insurance Corporation Limited and Unit Trust of India. The plaintiff/respondent, bonafidely require the suit shop for running his own business as well as for the business of his son for starting STD, PCO, Fax and Electro-stat, and the plaintiff/respondent does not have any alternative nonresidential accommodation within the limits of Municipal Corporation, Gwalior and therefore, he is entitled to get vacant possession of the suit shop. It was further pleaded that the appellants/defendant is habitual of committing default in payment of rent. The appellants/defendant is in arrears of rent from May 1996 and the plaintiff/respondent had issued a notice through his Counsel on 14.10.1996, but the same was received back due to non-availability of the defendant. Therefore, another notice was sent through his Counsel on 8.11.1996 by registered post, which has been received by the defendant on 12.11.1996 and by this notice, the plaintiff/respondent has demanded the arrears of rent as well as for handing over the vacant possession of the shop. The defendant sent his reply on 28.11.1996 which was based on incorrect facts. After receiving the notice, the defendant had sent Rs.1,400/- by money order towards rent of two months, which was received by the plaintiff/respondent under protest, without prejudice to his rights. It was also pleaded that the defendant was in arrears of rent from May 199
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