Kastur Chand Jain (since dead) through LR Ashish Jain vs Keshri Singh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(MP) 606

IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak , J.
Kastur Chand Jain (since dead) through LR Ashish Jain v. Keshri Singh
Second Appeal No. 422 of 2009 (Gwalior): against the judgment and decree dated 30.4.2009 passed by the II Additional District Judge, Vidisha in Civil Appeal No. 9-A/2008 affirming the judgment and decree dated 16.10.2007 passed by the I Additional Civil Judge Class I, Vidisha in Civil Suit No. 197-A/2007; Decided on 12.9.2019

Advocates:
D. D. Bansal for appellant.

Headnote:
(1) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (i) -- Evidence Act, 1872 -- S. 114 (g) -- suitability of accommodation owned/acquired by defendant/tenant -- documents regarding nature of house, whether it is residential or commercial, were in possession of tenant/defendant -- he was the only person who could have produced them -- he tried to escape on touchstone of "suitability" -- did not produce those documents -- adverse inference ought to have been drawn against him. AIR 1987 SC 2016, (1989) 3 SCC 72, (1994) 5 SCC 445 and AIR 1968 SC 1413 followed. 1973 RCJ SN 23 and 1980 (2) RCJ 759 relied on. AIR 1992 MP 111 referred to. [Para 17
(2) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (i) -- Evidence Act, 1872 -- Ss. 102, 103 and 106 -- suitability of accommodation owned/acquired by defendant/tenant -- burden of proof -- when both plaintiff and defendant have come before Court with respective pleadings -- they are equally liable to prove their case -- if evidence is being led by both parties, question of burden of proof loses its significance -- suitability is a very subjective term -- once tenant has accepted existence of alternative accommodation owned and possessed by him, it is his duty to prove that said accommodation is not suitable for residence. AIR 1960 SC 100 and (1999) 4 SCC 350 followed. [Para 19
(3) Civil P. C., 1908 -- O. 41 R. 27 -- it is imperative for appellant to show due diligence -- in absence of due diligence, application cannot be accepted. [Para 22
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ & /kkjk 12 ¼1½ ¼>½ & lk{; vf/kfu;e] 1872 & /kkjk 114 ¼N½ & izfroknh@vfHk/kkjh ds LokfeRo ds@mlds }kjk vftZr LFkku dh mi;qärk & Hkou dh iz—fr ds ckjs esa nLrkost] fd og vkoklh; gS ;k okf.kfT;d] izfroknh@ vfHkËkkjh ds dCts esa Fks & ogh ,dek= O;fä Fkk tks mUgsa izLrqr dj ldrk Fkk & mlus Þmi;qärkß dh dlkSVh ls iyk;u dk iz;kl fd;k & og nLrkost izLrqr ugha fd, & mlds fo#) izfrdwy fu"d"kZ fudkyk tkuk pkfg, FkkA , vkb vkj 1987 ,l lh 2016] ¼1989½ 3 ,l lh lh 72] ¼1994½ 5 ,l lh lh 445 rFkk , vkb vkj 1968 ,l lh 1413 vuqlfjrA 1973 vkj lh ts ,l ,u 23 rFkk 1980 ¼2½ vkj lh ts 759 voyafcrA , vkb vkj 1992 e- iz- 111 fufnZ"VA ¼iSjk 17
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ & /kkjk 12 ¼1½ ¼>½ & lk{; vf/kfu;e] 1872 & /kkjk 102] 103 rFkk 106 & izfroknh@vfHk/kkjh ds LokfeRo ds@mlds }kjk vftZr LFkku dh mi;qärk & lcwr dk Hkkj & tc oknh vkSj izfroknh] nksuksa gh U;k;ky; ds le{k vius&vius vfHkopu ysdj vk, gS & og viuk i{kdFku lkfcr djus ds fy, leku :i ls nk;h gSa & ;fn nksuks i{kksa }kjk lk{; is'k fd;k tk jgk gS rks lcwr ds Hkkj ds iz'u dk egRo ugha jgrk & mi;qärk vR;f/kd O;fäijd 'kCn gS & vfHk/kkjh vius LokfeRo rFkk dCts dk vkuqdfYid LFkku gksuk Lohdkj dj ysrk gS rks ;g lkfcr djuk mldk drZO; gS fd mä LFkku vkokl ds fy, mi;qä ugha gSA , vkb vkj 1960 ,l lh 100 rFkk ¼1999½ 4 ,l lh lh 350 vuqlfjrA iSjk 19
¼3½ flfoy izfØ;k lafgrk] 1908 & vk- 41 fu- 27 & vihykFkhZ }kjk rRijrk n'kkZbZ tkuk vfuok;Z gS ≦d~ rRijrk ds vHkko esa vkosnu Lohdkj ugha fd;k tk ldrkA ¼iSjk 22

JUDGMENT

1. Appellant/plaintiff filed this second appeal under section 100 of CPC against the judgment and decree dated 30.4.2009 passed by Second Additional District Judge, Vidisha in Civil Appeal No. 9-A/2008 affirming the judgment and decree dated 16.10.2007 passed by First Additional Civil Judge, Class-I, Vidisha in Civil Suit No. 197-A/2007.

2. Briefly stated facts of the case are that appellant/plaintiff (represented through LR) instituted a suit for eviction and arrears of rent on the grounds available under section 12 (1) of the M. P. Accommodation Control Act, 1961 (for short "Act of 1961") against the defendant/respondent/tenant on the allegations that plaintiff is owner and possessor of a house situate at Chandrashekhar Marg, Ward No. 30, Vidisha and the defendant is his tenant in four rooms at ground floor on monthly rent of Rs. 250/-. It is alleged that defendant does not pay rent on time and not paid rent due against him since 1.4.2004 in spite of making demand and has paid rent up to 30.11.2004 after service of notice but did not pay the entire arrears of rent.

3. It is further alleged in the plaint that defendant constructed a house on a plot owned and possessed by him, situate at Sagar Road, opposite Chungi Naka, Vidisha and started restaurant in half of the area of the building and in remaining half of the portion, instead of using it for his residence, inducted a tenant, namely, Chandu. Despite notice, defendant did not vacate the tenanted accommodation, therefore, suit has been preferred. The allegations were apparently in respect of grounds available under section 12 (1) (a) and (i) of the Act of 1961.

4. After notice, defendant appeared and filed written statement. In written statement, defendant denied the allegations so far as arrears of rent are concerned. Defendant however accepted in para 4 of the written statement that defendant owns a house and constructed it 10 years back on Sagar Road but it is for commercial purpose. He submits that he has constructed house in which restaurant/hotel and STD PCO are being run. Allegation regarding induction of tenant was denied. It was submitted that since the plot owned by defendant is over road which comes under commercial use, therefore, he is running the business of hotel/PCO.

5. After pleadings, trial Court framed as many as seven issues and evidence was led. Appellant led the evidence of himself as PW-1 and Brajendra Jain as PW-2; whereas, defendant examined himself as DW-1, Chandrashekhar Dubey as DW-2 and Ramshiya Pandey as DW-3. Documentary evidence on behalf of appellant vide Exhibits P/1 to P/4 and on behalf of defendant vide Exs. D/1 to D/13 were exhibited. Trial Court, after considering the evidence and rival submissions, came to the conclusion that plaintiff could not establish the fact that the house owned by defendant is befitting for residential purpose, therefore, plaintiff did not prove his case on section 12 (1) (i) of the Act of 1961 and since the arrear of rent has been paid in the Court, therefore, sufficient compliance has been made. Resultantly, suit filed by the plaintiff/appellant was dismissed by the trial Court.

6. Plaintiff preferred first appeal under section 96 of CPC but met the same fate. Appellate Court put the onus over the plaintiff while not proving the factum of suitability of accommodation owned by defendant for residential purpose. After dismissal of first appeal, plaintiff preferred the instant appeal.

7. In the instant appeal, appellant has raised the grounds as reiterated earlier and moved an application under Order XLI rule 27 of CPC vide I. A. No. 11386/2010 in which he placed certain documents of ownership of defendant (received under Right to Information Act, 2005) showing that house owned and possessed by the defendant is partly residential and partly commercial. Some of the documents are electricity bills of defendant in which tariff category of electric connection is referred as residential. Appellant also placed sale d