Dwarika Prasad (dead) vs Ram Swaroop Soni

This second appeal has been preferred by the tenant of the respondent, being aggrieved by the judgment and decree dated 26.06.2019 passed by

the Court of Third Additional District Judge, Jabalpur in Civil Appeal No.22-A/2019.

It is not in dispute that earlier Lower Appellate Court remanded the case to the trial Court vide order dated 30.09.2014 to reconsider the suit on the

basis of its merits, which order was challegned in M.A. No.2920/2014 in the High Court. This Court had set aside the order and remanded the case to

the Lower Appellate Court to consider applications filed under Order 6 Rule 17 and Order 41 Rule 27 of C.P.C. then the First Appellate Court should

adjudicate the case as per its merits.

The respondent's case is that he purchased the suit property on 20.09.1995 by a registered sale deed and got possession of the same. It is alleged

by the respondent that till 1st November, 1995 on the disputed land a 'Kachcha Tapra' was lying vacant and the same was let out to the appellant @

Rs.100/- per month for non-residential purposes. Till 1st May, 2003, the appellant paid regular rent to the respondent, thereafter he stopped making

payment. The respondent gave notice to him, even then appellant failed to pay the arrears of rent to him. In June, 2003, when the respondent

demanded arrears of rent from the appellant, he found that the appellant started digging the land besides the said 'Tapra' with a view to construct

latrine over it. The construction was completed by appellant wihout his consent and permission.

Further that, the respondent is in bonafide need of the suit property for his business and also wanted to reconstruct the 'Tapra' because during

occurrence of earthquake in April, 1997, said Tapra changed into dilapidated condition and become dangerous to life. Nagar Nigam passed a map for

raising the construction over the suit property. The respondent claimed that he has no alternative place for doing his business. Therefore, he filed a suit

for eviction and for arrears of rent of Rs.1700/- against the appellant.

Appellant denied the case of the respondent claiming that he never sold the suit property to the respondent. He is in possession of the suit property

as the owner thereof. In fact, after the death of the parents of the respondent, he is working at his shop. The respondent is entirely dependent on the

appellant. Thus, on account of undue influence, the respondent falsely executed an agreement and used it as a sale deed dated 30.09.1995. There is no

relationship between the plaintiff and defendant as landlord and tenant. Hence, respondent is not entitled for any relief claimed by him.

After considering the evidence adduced by both the parties, the learned trial Court came to the conclusion that appellant is the tenant of the

respondent @ Rs.100/- per month in the suit shop. The appellant denied the same and challenged the ownership of the respondent. Hence, under

Section 12(1)(c) of the M.P. Accommodation Control Act, he is entitled for a decree of eviction. Similarly, he is in bonafide need of the suit property

to start the business. He has no alternative shop in the Jabalpur. Thus, learned trial Court passed a decree of eviction against the appellant holding that

the respondent is not entitled for decree under Sections 12 (1)(a), 12 (1)(o), 12 (1)(g), 12 (1)(h), & 12 (1)(m) of the M.P. Accommodation Control Act

and for the arrears of rent of Rs.1700/- per month for mandatory injunction, but the Court directed to the appellant to deliver vacant possession of the

suit property to the respondent within two months and pay rent of Rs.100/- from the date of institution of suit, i.e. 20.10.2004 upto delivery of the suit

property.

Findings of the learned trial Court are challenged by the appellant before the learned Lower Appellate Court, which are affirmed by the Appellate

Court holding that the respondent duly proved that appeal is not maintainable because appellant has failed to prove that he had complied with the

provisions enshrined under Section 13 (6) of the M.P. Accommodation Control Act. Even though, the trial Court directed him on 16.06.2012 to pay the

entire arrears of rent till next date of hearing. After passing the impugned judgment by the trial Court, till the date of judgment passed by the learned

appellate Court, he has failed to pay rent of the suit property incompliance of Section 13(1) of the M.P. Accommodation Control Act. Thus, his

defence was struck off, as mentioned in para 16 of the impugned judgment by the learned Appellate Court.

In the case of Jagdish and another vs. Omprakash and another, 2001 (1) MPLJ 568, it is held that :-

“22. In the present case, as has already been noticed hereinabove, the suit of the plaintiffs had been decreed. The defendants had been found to be defaulters in

the payment of rent. There is nothing to indicate that any amount whatsoever had been deposited by the tenants during the pendency of the appeal either towards

arrears of rent or towards the current rent. No explanation seeking condonation of delay in the deposit of the rent had been filed. The mandatory requirement

envisaged under Section 13(1) of the M.P. Accommodation Control Act, 1961 had not been complied with.

The expressions “in any appeal or any other proceeding by a tenant against any decree or order for his eviction†as used in Section 13(1) of the M.P.

Accommodation Control Act clearly bring within the ambit of the aforesaid provision, not only the proceedings under Order 9 Rules 13 of the Civil Procedure Code

but an appeal filed against the order passed by the trial Court rejecting such an application. It is therefore, obvious that the failure of the tenants to comply with the

mandatory requirements envisaged under Section 13(1) of the M.P. Accommodation Control Act disentitled them from raising any defence against their eviction with

the consequential result that it was no longer open to the first Appellate Court to proceed to hear the appeal on merits and the only option left to it in the

circumstances was to dismiss the same.â€​

After considering the findings recorded by both the Courts below this Court comes to the conclusion that there is no illegality and peversity in the

findings of the Courts below and further no substantital question of law arises in the present appeal. Hence, this appeal is hereby dismissed at this

stage.