Brijballabh vs Hitsharan - 1987 Supreme(MP) 518

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Advocate Appeared:
For the Appellant : R.A. Roman
For the Respondent: N.K. Jain

Headnote:(1) Accommodation Control Act, 1961 (M.P.) – S.72 (1)(a) – suit for eviction under full arrears of rent deposited during pendency of suit and appeal – no decree can be passed.
       (2) Accommodation Control Act, 1967 (M.P.) – S.72 (1) (f) – eviction sought under – amendment application by tenant in second appeal on ground of subsequent event – case remanded for enquiry.
       (3) Civil Procedure Code, 1908 – – S.100 and O.47, R.25 – amendment application on ground of subsequent event – prayer appearing reasonable – case remanded for enquiry and reconsideration.
        Short Note
       1. The only fact which is necessary to be stated in disposing of the appeal at this end is that the plaintiff – respondent instituted the instant suit (giving rise to this Second Appeal) on grounds envisaged under clauses (a) and (f) of Section 12 (1) of the M.P. Accommodation Control Act, 1961 for short the Act'. What is seriously contended by Shri Roman, who appears for the tenant – defendant appealing in this Court is that plaintiff's need of the suit premises has vanished during the pendency of the lis.
       2. Held: My attention is drawn by Shri Roman to para 4 of the plaint in this connection. He has also relied on averments made in the applications and affidavits in support of the prayer made under Order 41, Rule 27 C.P.C. in this Court to bring on record subsequent events in the light of the decision in Hasmat Rai (1981 JLJ 716). There is no doubt that specific case of the plaintiff – respondent, as projected in para 4 of the plaint, was that the suit premises was required by him in connection with the business which he was carrying on as dealer/distributor of M/s. Nirn Industries and M/s, Sandeep Trading Corporation. Indeed, materials are brought on record by the defendant – appellant as per application aforesaid to indicate that in so far as the dealership of M/s. Nirn Industries is concerned, plaintiff has lost that business while Sandeep Trading never existed and the question of plaintiff, being a dealer of that firm, did not arise. Replies have also come on record from the landlord – plaintiff (herein respondent) contesting the claim made in this Court by the tenant – appellant.
       3. Thus, disputed questions of fact have come up for determination, which I find difficult to dispose of in this Court in Second Appeal on the basic merely of affidavits and copies of documents. But, I am still convinced that a good case for reconsideration of landlord's pleas under clause (f) of Section 12 (1) aforesaid in the light of subsequent event is duly made out in this Court. A decision thereon has to be, therefore, rendered but only on evidence properly led albeit on amended pleadings for which also parties filed application in this Court. On 22 – 1 – 1983, an application (I.A. No. III/343/83) was filed in this appeal by the appellant – defendant for amending his written statement. Thereafter, on 22 – 9 – 1986, the plaintiff – respondent made an application (I.A. No.VIII) for amending the plaint. Parties also filed their respective replies to rival applications.
       3. In these circumstances, I am fully satisfied that the appeal must go back and reheard on consideration of the application for amendment of pleadings and on additional evidence being taken in respect of the amended pleadings to determine afresh the question as to whether today the cause pleaded in para 4 of the plaint is live and germane to invest jurisdiction in the Court to pass a decree against the tenant – defendant under section 12 (1) (f) of the Act.
       4. It is true that both Courts have also upheld the plea of the plaintiff – respondent under clause (a) of section 12 (1) but the fact is that during the pendency of the suit as also appeal, arrears of rent was duly deposited. That being the position Lachhibai Rathore, (1987 MPRLJ 23), must bale out the defendant and the decree passed by two Courts below under section 12 (1) (a) must be set aside.
       5. In the result, the appeal succeeds and is allowed to the extent indicated above. The Court below shall only reconsider the question as to whether the ground envisaged under clause (f) is live today and plaintiff is entitled to have decree thereunder. The applications above – referred, namely dated 22 – 1 – 1983 and 22 – 9 – 1986 together with the respective replies shall go down with records of the Case to the lower appellate Court for disposal. 1981 JLJ 716 (SC) and 1987 MPRLJ 23 relied on.
       Appeal allowed.