IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE GAJENDRA SINGH SECOND APPEAL No. 334 of 2024 M/S SWATANTRA STEEL THROUGH PROPRIETOR LATE KIRANSINGH BY LEGAL HEIRS AJJU @ AJAY KUMAR MANSINGHKA Versus LATE SMT. KHERU NISHA THROUGH LRS MOH. IKBAAL AND OTHERS Appearance:

Shri Gulab Sharma, learned counsel for the appellant.

RESERVED ON : 12.12.2024 DELIVERED ON : 07.01.2025 ..........................................................................................................................................................................

JUDGMENT This second appeal under Section 100 of the CPC is preferred being aggrieved by the judgment and decree dated 02.12.2023 passed in Regular Civil Appeal No.70/2022 by the Fourth District Judge, Indore arising out of the judgment and decree dated 01.11.2021 in Regular Civil Suit No.945-

A/2018 by the Fifth Civil Judge, Junior Division, Indore.

02. The facts of the case in brief are that the respondent filed a civil suit for eviction of appellant/defendant from the shop situated at House No.4, South Hathipal, Indore admeasuring 160 square feet (8 x 20 feet) boundaries mentioned in para 2 of the plaint rented for non-residential purposes on the ground mentioned in Section 12(1), (a), (b), (c) & (f) of the Madhya Pradesh Accommodation Control Act, 1961 and recovery of arrears of rent.

Signature Not Verified

03. The defendant remained ex-parte. No written statement was filed.

The trial Court framed a total 8 issues and recorded the evidence of respondent no.2/Mohd. Saleem as PW-3, respondent no.4 Mohd. Munaaf as PW-1, Kherunisa as PW-2, Mohd. Iqbal as PW-4, Mohd. Raees as PW-5 and admitted the documents Exhibit-P/1 to P/11.

04. Appreciating the evidence, the trial Court found proved that the defendant has not deposited the arrears of rent as per requirement of Section 13(1) of M.P. Accommodation Control Act, 1961 and also found proved that the suit house is required to start the business of Saleem bonafidely but dismissed the suit recording the finding that the rent receipt (Exhibit-P/6) does not bear the signature of plaintiffs and mention the name of Ishaq Choudhary as the person who paid the rent and hence the relationship of landlord and tenant is not proved. The ground of Section 12(1)(c) and (b) was also not proved and it was also recorded that it is not proved that the plaintiffs have no other suitable place to run business of Saleem in the Indore city. The plaintiffs/respondents preferred the First Appeal and the trial Court passed a decree on the ground of Section 12(1)(a) and (f) of the Madhya Pradesh Accommodation Control Act, 1961 and also recovery of arrears of rent to the tune of Rs.74,700/- with rent till delivery of vacant possession.

05. Challenging the decree and judgment of the First Appellate Court, this Second Appeal has been preferred on the ground that during the pendency of the first appeal defendant Kiran Singh died but all the LRs. of late Kiran Singh were not brought on record. Accordingly, appeal against Signature Not Verified remaining LR's namely Smt. Sumitra w/o Late Kiran Singh is abated. The respondents have cleverly mentioned the name of Smt. Laxmi Bai as wife of late Kiran Singh whereas the name of wife of Kiran Singh is Sumitra Devi and Sumitra Devi has not been brought on record. The First Appellate Court committed error in accepting the service on the basis of track report. The first Appellate Court committed error in proving the relationship of landlord and tenants between the appellants and defendants and further committed error in deciding the suit on the basis of another suit without proving all those record and proposed the following substantial questions of law which are mentioned as under:-

(I) Whether, without filling the plaint & written statement can the parties are same can be held by the first appellate court?

(II) Whether, without impleading the proper LR'S of defendant the decree is null & void against the person who was a ne