01 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL rd ON THE 3 OF SEPTEMBER, 2022 SECOND APPEAL No. 477 of 2022 Between:-

RADHA CHARAN AGARWAL S/O POORANMAL AGARWALL, AGED ABOUT 67 YEARS, OCCUPATION: SHOPKEER NEAR SURYA NAGAR DIXIT DHARMSHALA BALLA KA DERA JHANSI ROAD DABRA (MADHYA PRADESH)

.....APPELLANT (SHRI H.K. SHUKLA, LEARNED COUNSEL FOR APPELLANT)

AND BIHARI LAL JAMNA DAS AGARWAL PANCHAYATI DHARMSHALA JAWAHARGANJ DABRA DISTT.

GWALIOR THR. ITS SHAMBHU DAYAL BANSAL S/O MADAN LAL BANSAL SUBHASHGANJ DABRA (MADHYA PRADESH)

.....RESPONDENT (SHRI R.S. BANSAL, LEARNED COUNSEL FOR RESPONDENT)

02 This appeal coming on for hearing this day, the court passed the following:

JUDGMENT

This second appeal is preferred under Section 100 of the CPC against the judgment and decree dated 31.01.2022 passed by First Additional District Judge, Dabra, Distt. Gwalior (M.P.) in Civil Appeal No.51/2019, whereby the judgment and decree dated 07.09.2019 passed by Third Civil Judge Class-I, Dabra, Distt.

Gwalior (M.P.) in Civil Suit No.5-A/2016 has been affirmed. The respondent, as landlord, filed a suit for the eviction of the appellant tenant on the ground that the appellant had neither paid nor tendered the arrears of rent legally recoverable from him. The plaint recited that the appellant had taken a shop on rent at Rs. Rs.600/- per month for the purpose of his business of mobile repairing and music but appellant had not paid the arrears of rent from 01.04.2014and put one Ballu alias Balram in possession of the shot and sublet it to him on a monthly rent of Rs.10,000/-.

Hence, appellant is liable to eviction.

The facts, in a nutshell, are that from 01.04.2014 defendant

03 has not paid rent to the plaintiff of the disputed shop and when the plaintiff asked the defendant for rent, the plaintiff misbehaved him. The disputed shop initially was taken on rent by the defendant for the purpose of business of garlic. The defendant has unlawfully sublet the said shop to one Ballu alias Balram @ Rs.10,000/- per month who is running a business of mobile repairing and music in the said shop thereby creating nuisance and noise pollution. Aggrieved by the conduct of defendant, plaintiff through his counsel served a notice on the defendant intimating him that he has terminated the tenancy but the defendant neither paid nor tendered the rent within two month of the notice due to which plaintiff filed a civil suit for eviction against defendant.

Learned trial court after framing issues and allowing liberty to the parties to adduce evidence, decreed the suit in favour of plaintiff on the ground of subletting the suit premises by the defendant. Aggrieved by the aforesaid judgment and decree, defendant preferred an appeal before the Appellate Court which was dismissed.

Both the courts below on relying the evidence adduced by

04 both the parties held that since the defendant at present is not using the disputed shop and has sublet the said shop to one Ballu alias Balram who is running business of mobile repairng and music in the said shop, defendant was directed to vacate the suit premises that hand over the vacate possession to the plaintiff. Aggrieved by this, appellant-defendant preferred this second appeal on the ground that both the courts wrongly relied upon photographs of disputed shop and passed the decree.

Banti Chauhan (Plaintiff Witness No.1)in his statement has stated that he is posted as Manager in Biharilal Jamunadas Agarwal Panchayat Dharmshala Jawaharganj. Shop No.6 was rented out to defendant @ Rs.600/- per month. The said shop is not being used by defendant and he has sublet the said shop to one Ballu @ Balram who told him that the said shop has been taken by him on rent @ Rs.10,000/- and running the business of mobile repairing and music in the name of Radhika Mobile Repairing Center since last three years.

During cross-examination he denied that he is giving false statement only to get the disputed shop vacated. The d