Ram Kishan Sharma (Dead) vs Pankaj Kumar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(MP) 381

IN THE HIGH COURT OF MADHYA PRADESH
Sunita Yadav, J.
Ram Kishan Sharma (Dead) through LRs. v. Pankaj Kumar
Ahuja & Another
Second Appeal No. 531 of 2016 (Gwalior): against the judgment and decree dated 14.10.2016 passed by the 10th Additional District Judge, Gwalior in Civil Appeal No. 13/2015;
Decided on 3.5.2024

Advocates:
Santosh Agrawal for LRs of appellant;
Anand Vinod Bhardwaj for respondent No. 1.

Headnote:
(1) Accommodation Control Act, 1961 (M. P.) -- S. 12(1)(f) -- bona fide need -- availability of suitable alternative accommodation -- concurrent findings of trial Court and appellate Court that plaintiff has bona fide requirement of disputed shop for opening his own business after retirement -- but plaintiff had other shops apart from disputed shop -- knowingly and malafidely did not file any details in respect of shops owned by him -- first appellate Court did not err in holding that plaintiff failed to prove that he does not have suitable alternative accommodation to start his business -- plaintiff died during pendency of second appeal -- when he died, he did not have decree of eviction in his favour -- decree of eviction on ground of bona fide need cannot be granted in favour of his legal representatives as they have not amended plaint or come forward with prayer that disputed shop is required bona fide for their businesses. (2001) 8 SCC 718, (2001) 5 SCC 705, 1975 Legal Eagle (SC) 125, 1981 Legal Eagle (SC) 282 and (2013) 14 SCC 179 followed. 2014 (4) MPJR 34, AIR 2010 SC 2679, AIR 2001 SC 3806 and AIR 2000 SC 534 distinguished. [Paras 27, 29, 33, 34 & 38]
(2) Civil P.C., 1908 -- S. 100 -- second appeal -- concurrent findings based on oral as well as documentary evidence -- cannot be reversed until found to be perverse. [Para 28]
(3) Accommodation Control Act, 1961 (M. P.) -- Ss. 12(1)(h) and 18 -- disputed shop 150 years old and in dilapidated condition -- Municipal Corporation issued notice u/s. 310 of Municipal Corporation Act -- however, plaintiff failed to prove said notice by filing original notice or by examining any witness from Municipal Corporation -- said building is still in existence -- no notice given by Municipal Corporation for almost 12 years -- nor any action taken u/s. 310 of Municipal Corporation Act -- only on basis of photocopy of notice allegedly sent by Municipal Corporation, it is not proved that disputed shop is 150 years old and in dilapidated condition -- if shop was in such bad condition then Municipal Corporation ought to have acted as per provisions of S. 310 of Municipal Corporation Act -- first appellate Court rightly held that plaintiff failed to prove that disputed shop is in dilapidated condition. [Paras 39 to 42]
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½¼p½ & okLrfod vko';drk & mi;qä vkuqdfYid LFkku dh miyC/krk & fopkj.k U;k;ky; rFkk vihy U;k;ky; ds leorhZ fu"d"kZ fd oknh dks lsokfuo`fÙk ds mijkar Lo;a dk dkjckj vkjaHk djus ds fy, oknxzLr nqdku dh okLrfod vko';drk gS & ijarq oknh ds ikl oknxzLr nqdku ds vfrfjä vU; nqdkusa Fkha & tkucw> dj vkSj vln~HkkoiwoZd vius LokfeRo dh nqdkuksa dk dksbZ C;kSjk çLrqr ugha fd;k & çFke vihy U;k;ky; us ;g vfHkfu/kkZfjr dj xyrh ugha dh fd oknh ;g lkfcr djus esa vlQy jgk fd viuk dkjckj vkjaHk djus ds fy, mlds ikl mi;qä vkuqdfYid LFkku ugha gS & f}rh; vihy ds yacu ds nkSjku oknh dh e`R;q gks xbZ & mldh e`R;q gqbZ rc mlds i{k esa csn[kyh dh fMØh ugha Fkh & mlds fof/kd çfrfuf/k;ksa ds i{k esa okLrfod vko';drk ds vk/kkj ij csn[kyh dh fMØh çnku ugha dh tk ldrh D;ksafd u rks mUgksaus okni= esa la'kks/ku fd;k vkSj u og bl çkFkZuk ds lkFk vk, fd muds dkjckj ds fy, oknxzLr nqdku dh okLrfod vko';drk gSA ¼2001½ 8 ,llhlh 718] ¼2001½ 5 ,llhlh 705- 1975 yhxy bZxy ¼,llh½ 125] 1981 yhxy bZxy ¼,llh½ 282 rFkk ¼2013½ 14 ,llhlh 179 vuqlfjrA 2014 ¼4½ ,eihtsvkj 34] ,vkbvkj 2010 ,llh 2679] ,vkbvkj 2001 ,llh 3806 rFkk ,vkbvkj 2000 ,llh 534 çHksfnrA ¼iSjk 27] 29] 33] 34 ,oa 38½
¼2½ flfoy çfØ;k lafgrk] 1908 & /kkjk 100 & f}rh; vihy & ekSf[kd ds lkFk gh nLrkosth lk{; ij vk/kkfjr leorhZ fu"d"kZ & iyVs ugha tk ldrs tc rd fd foi;ZLr ugha gksaA ¼iSjk 28½
¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12¼1½¼t½ rFkk 18 & oknxzLr nqdku 150 o"kZ iqjkuh rFkk th.kZ&'kh.kZ voLFkk esa & uxjikfyd fuxe us uxjikfyd fuxe vf/kfu;e dh /kkjk 310 ds v/khu lwpuki= tkjh fd;k & rFkkfi oknh ewy lwpuki= çLrqr djds vFkok uxjikfyd fuxe ds fdlh lk{kh dh ijh{kk djds mä lwpuki= lkfcr djus esa vlQy jgk & mä Hkou vc vfLrRo esa & yxHkx 12 o"kZ ls uxjikfyd fuxe }kjk dksbZ lwpuki= ugha fn;k x;k & u uxjikfyd fuxe vf/kfu;e dh /kkjk 310 ds v/khu dksbZ dkjZokbZ gh dh xbZ & dsoy vfHkdfFkrr% uxjikfyd fuxe }kjk çsf"kr lwpuki= dh Nk;kçfr ds vk/kkj ij ;g lkfcr ugha gksrk fd oknxzLr nqdku 150 o"kZ iqjkuh rFkk th.kZ&'kh.kZ voLFkk esa gS & ;fn nqdku bruh cqjh voLFkk esa Fkh rks uxjikfyd fuxe dks uxjikfyd fuxe vf/kfu;e dh /kkjk 310 ds mica/kksa ds vuqlkj dkjZokbZ djuk pkfg, Fkh & çFke vihy U;k;ky; us Bhd gh vfHkfu/kkZfjr fd;k fd oknh ;g lkfcr djus esa vlQy jgk fd oknxzLr nqdku th.kZ-'kh.kZ voLFkk esa gSA ¼iSjk 39 ls 42½

JUDGMENT

1. This Second appeal under section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellant/plaintiff against the impugned judgment and decree dated 14.10.2016 passed by Court of Tenth Additional District Judge, Gwalior in Civil Appeal No. 13/2015, by which, the Judgment and decree dated 5.11.2015 passed by 3rd Civil Judge, Class – 1, District Gwalior in Civil Suit No. 36-A/2014 has been set aside.

2. The necessary facts for disposal of the present appeal, in short, are that the original plaintiff Ramkishan Sharma (since dead) filed a civil suit seeking eviction against the defendants/respondents on the ground of sections 12(1)(a), (b), (f), (h) of M.P. Accommodation Control Act 1961 in respect to the shop shown as red oblique lines in plaint map situated in the building bearing municipal number 39/593 New number 57/593 surrounded by in the East: Joint House, West: Road Madhavganj, North: House Panchayati (Oswal), South: Shop of Deeptilal.

3. It was the case of plaintiff that father of defendant i.e. Vishandas S/o Khaturam was the tenant in the disputed shop @ Rs. 865/- per month. It is also pleaded that vide rent note dated 15.4.1979 father of plaintiff became tenant @ Rs. 225/- per month, thereafter, rate of rent was enhanced upto Rs. 865/- per month.

4. It was the case of plaintiff that defendant has paid rent upto 14.12.2007 thereafter despite of demand so also by way of registered notice dated 7.7.2008, 10.5.2009, and 11.5.2009 defendants did not pay rent.

5. It was also the case of plaintiff that defendant has inducted sub tenant ie. Satram Chhabada without the consent of plaintiff and Satram Chhabada is doing his cloth business.

6. It is also pleaded that plaintiff is going to retire from the service, hence, he has bonafide need as he will start business in the disputed shop along with shop adjoining to it, for which, he has no alternative accommodation in the town.

7. It is also pleaded that house is of 100 years old and is in delapidated condition hence plaintiff want to get it repaired and filed suit seeking eviction and arrears of rent.

8. The defendants filed written statement and denied the plaint allegations, and asserted that defendants are tenant @ Rs.600/- per month in the shop owned by Temple by way of amendment in para no. 2A of the written statement, it is asserted that owner of the disputed property is Bade Wale Hanuman ji, and the temple is of Government, but Government has not been impleaded as party.

9. By way of special plea it is asserted that the provisions of M.P. Accommodation Control Act are not applicable and suit has been filed just to harass the defendants.

10. The plaintiff filed rejoinder to rebut the objection in regard to ownership of plaintiff, plaintiff pleaded that one part of disputed property got by grandfather through Patta dated 8.3.1894 and other part by sale deed dated 7.4.1923 and 9.2.1921 from Jagannath S/o Ishari, hence, plaintiff predecessor was owner of the property, and it was never belongs with temple, Mangilal grandfather of plaintiff executed will in his favour on 19.10.1967 on the basis of will plaintiff become exclusive owner of disputed property.

11. The defendants having been tenant and paid the rent to plaintiff, but denied title of plaintiff, hence plaintiff also amended his plaint in regard to ground under section 12(1) (c) of M.P. Accommodation Control Act 1961.

12. On the basis of pleadings, learned trial Court framed the issues and after recording evidence held that defendants are tenant of plaintiff @ Rs. 865/- per month. It is also held that despite demand defendants did not pay the arrears of rent but during pendency of suit deposited, and it is also held that plaintiff is entitled for alteration of shop for which plaintiff has need of shop, and also held that plaintiff has bonafide need for his own and also held that plaintiff is owner of the disputed property and decreed the suit vide judgment and decree dated 5.11.2015 on the g