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HIGH COURT OF M. P. JUDICATURE AT JABALPUR
SECOND APPEAL NO.1270 of 2009.
Anchal Mishra
Versus.
Shankar Singh Rathore
For appellant : Shri Umakant Sharma, Sr.Advocate assisted
by Shri P.N.Tiwari, Advocate.
For respondent : Shri Jai Singh Thakur, Advocate.
O R D E R (ORAL)
(04.08.2010)
Per U. C. Maheshw ari J.
The appellant/defendant has directed this appeal under
Section 100 of the CPC being aggrieved by the judgment and decree
dated 8.9.2009 passed by 20 t h Additional District Judge , District
Jabalpur in regular civil appeal No.27-A/09 affirming the judgment
and decree dated 24.2.2009 passed by the 11 t h Civil Judge Class-I,
Jabalpur in original civil suit No. 112-A/08, decreeing the suit of
the respondent for eviction against the appellant with respect of a
shop the non-residential accommodation described in the plaint,
situated in Adhartal, Jabalpur.
2. The facts giving rise to this appeal in short are that
respondent herein filed the suit for eviction against the appellant,
with respect of the above-mentioned shop situated in Adhartal,
Jabalpur, described with all particulars in the plaint and also shown
in the annexed map with the plaint, on the ground of arrears of rent
under section 12(1)(a) and also on the ground of his bonafide
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genuine requirement of the disputed accommodation under section
12(1)(f) of the M.P. Accommodation Control Act, 1961 (for short
`the Act’) for the business of his sons Naval Kishore and Manish for
which they did not have any other accommodation of his own in the
city of Jabalpur. As per some other averments of the plaint, the
appellant is stated to be his monthly tenant at the rate of Rs.300/-
per month in such shop for non-residential purpose. The appellant,
being defaulter in payment of the rent, did not pay the rent between
1.11.09 to 31.5.2002, on which, a demand notice was given by him
to the appellant through his counsel vide dated 1.6.2002. The same
was served, inspite that, within the statutory period, the rent was
not paid. Besides this, the respondent is in need of the alleged
accommodation for the business of his son Naval Kishore for
opening the General Store. At present, he is working in the shop of
his younger brother. The need of Manish is also stated in the plaint.
In these circumstances, prayer for eviction on the above mentioned
ground is made.
3. In the written statement of the appellant, by admitting the
tenancy of the accommodation, the rate of rent was disputed stating
that the same is Rs.250/- per month and accordingly the same was
regularly paid to the respondent. Appellant also spent Rs.17000/- in
repairing for keeping the disputed house in tenanted condition and
as per agreement with the respondent, the same was to be adjusted
in the sum of the rent. In such premises, no default has been
committed by him in payment of the monthly rent. On the contrary
the appellant has claimed against the respondent Rs.8000/-. In
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addition, it is stated that the respondent is having three vacant
shops of his own in possession and, in such premises, the alleged
need could not be deemed to be neither bonafide nor genuine. Only
for creating the undue pressure for enhancing the rent of the
accommodation upto Rs.1000/-, the suit has been filed with
malafide intention and prayer for dismissal of the suit is made.
4. In view of the pleadings of the parties, after framing the
issues and recording the evidence, on appreciation of the same, the
suit of the respondent has been decreed by the trial court against the
appellant for eviction under section 12(1)(a) and 12(1)(f) of the
Act. On challenging such decree before the subordinate appellate
court by the appellant, on consideration, by affirming the same, the
appeal was dismissed, on which, the appellant has come forward to
this court with this appeal.
5. Shri Umakant Sharma, learned Senior counsel, after taking me
through the pleadings, evidence available on the record and the
exhibited documents, argued that in the available circumstances, the
approach of both the courts below holding the appellant to be
defaulter in payment of the rent, is not sustainable under the law as
the entire arrears and regular rent was deposited by the appellant in
accordance with the provision of section 13(1) and (2) of the Act
but without considering such aspect, the decree has been passed
under section 12(1)(a) of the Act under wrong premises. In
continuation, he said that the respondent was not the only owner of
the property. As such, the property was belong to joint family of the
respondents and in the absence of any proof of partition between the
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members of the family, the respondent could not be termed to be the
landlord of the disputed accommodation and, in such premises,
decree passed under section 12(1)(f) of the Act by the courts below
is not sustainable. He also argued that the available alternate
accommodation with the respondent as stated by the appellant has
not been taken into consideration. Even some of such
accommodations, have not been pleaded by the respondent in the
plaint with proper explanation and without considering all such
aspects, the impugned decree on the ground of bonafide genuine
requirement is passed by the courts below under wrong premises,
therefore, at this stage, by admitting this appeal, re-appreciation of
the evidence is necessary and, in such premises, he prayed for
admission of this appeal on the proposed substantial questions of
law mentioned in the appeal memo.
6. Having heard the counsel, I have carefully examined the
record of both the courts below and perused the impugned
judgments. It is apparent fact on record that the impugned decree
has been concurrently passed by both the courts below for eviction
of the appellant under section 12(1)(a) and 2(1)(f) of the Act and
such findings being based on appreciation of the evidence could be
termed only findings of fact and, according to my opinion, the same
is not giving rise to any question of law rather than the substantial
question of law requiring any consideration at this stage under
section 100 of the CPC. In such premises, this appeal deserves to
be dismissed at the initial stage of motion hearing.
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7. So far the argument of the appellant’s counsel relating to
section 12(1)(a) of the Act is concerned, mere perusal of the
impugned judgment and the evidence of the parties, it is revealed
that appellant was remained defaulter in payment of the regular rent
of the disputed accommodation and in such premises, the impugned
decree has been rightly passed by the courts below and the same
could not be interfered at this stage in view of the principle laid
down by the Apex Court in the matter of Jamnalal and others
Vs. Radheshyam (2000) 4 SCC 380.
8. So far the argument of the appellant’s counsel on the
ground of bonafide genuine requirement under section 12(1)(f)
is concerned, in view of the settled proposition of the law laid
down by the Apex Court in the matter of Dr. Ranbir Singh Vs.
Asharfi Lal-(1995) 6 SCC 580 holding that the concurrent
findings of the courts below based on appreciation of the
evidence on the ground of bonafide genuine requirement, could
not be interfered at the stage of second appeal under section
100 of the CPC, such argument has not appealed me for framing
any substantial question of law in the matter.
9. So far the argument of the appellant’s counsel saying that
the respondent could not prove that he is the owner of the
disputed accommodation and acquired absolute title in the
property on their family partition thus he was not entitled to
file the suit under section 12(1)(f) of the Act is concerned, it is
apparent fact on record that in any case the respondent being
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co-parcenor of the joint property was the co-owner of the
property and if the property was not divided between them even
then in view of the law laid down by the Apex Court in the
matter of Sri Ram Pasricha Vs. Jagannath and others- AIR
1976 SC 2335 in which it was held that every co-parcenor is
the owner of every part of the property till it is divided between
amongst the co-parcenors of the family or co-owners, the
respondent had a right to file the suit for eviction. Even
otherwise for the sake of arguments, if it is deemed that the suit
is filed by the co-owner or co-parcenor of the family even then
in view of the aforesaid cited case the courts below have not
committed any error of law, in such premises also, I have not
found any perversity in the impugned judgment giving rise to
any substantial question of law requiring any consideration at
this stage.
10. In view of the aforesaid, I have not found any
circumstance giving rise to any question of law for admission
of this appeal, resultantly, in the lack of it, the same is hereby
dismissed at the stage of motion hearing.
11. However, taking into consideration that the appellant is in
possession of the disputed accommodation since long,
therefore, it would not be possible for him to vacate the same
within short period. Therefore, subject to some conditions, I
deem fit to extend some time to him for vacating the disputed
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premises. Hence, it is directed that on depositing the entire
decreetal sum including the arrears of the rent, if any, and on
furnishing appropriate surety to the satisfaction of the trial
court within thirty days from today along with an undertaking
that the appellant shall vacate the disputed premises and hand-
over its peaceful possession to the decree holder on or before
28.02.2011, then subject to payment of regular monthly mesne
profit of the disputed accommodation at the rate of the monthly
rent as held by the courts below within 15 days from the end of
such every tenancy month, the appellant is extended the time to
vacate the premises up to 28.2.2011. Failing in compliance of
any of the aforesaid condition, the respondent/decree holder
and the executing court shall be at liberty to execute the decree
of eviction forthwith with all aspects.
12. The appeal is dismissed as indicated above.
(U.C.MAHESHWARI)
JUDGE
MKL
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