Mahesh Kumar Goyal (dead) through L.Rs. Smt. Kirandevi and Others vs Birendra Kumar Dosi

Abhay M. Naik, J.

This appeal preferred by the defendants/appellants against the decree for eviction granted by both the Courts below in concurrent manner has been admitted and heard on the following substantial questions of law:

(1) Whether the finding of the Court below that plaintiff has proved his bonafide need is perverse?

(2) Whether the Court below has erred in passing the decree u/s 12(1)(a) of M.P. Accommodation Control Act, 1961 when the appellant-tenant has deposited entire rent within one month from deciding the dispute, thereafter he has not committed any default in depositing the rent?

(3) Whether the Court below has erred in relying on the document (Exh. P-1) without deciding the objections about admissibility?

Short facts relevant for the purpose of this appeal are that the plaintiff/respondent instituted a suit against the defendant/appellant for eviction and recovery of arrears of rent with allegations that the suit shop is comprised in a portion, which was allotted to the plaintiff in partition between himself, his brothers and father as revealed in the decree dated 20-3-1975 passed by the Court of ADJ Vidisha. Suit shop comprised in it was obtained on rent by the defendant on 1-11-1974 from Kesrimalji, father of the plaintiff, who was owner of it at that time. After the partition, the plaintiff became its owner and landlord. Plaintiff is running his business in a shop belonging to his brother Surendra Kumar on rent at the rate of Rs. 250/- per month. Plaintiff requires bonafide the suit shop to start the business of medicine. Surendra Kumar has already initiated a suit for eviction against the plaintiff. Moreover, the present shop of the plaintiff is situated in a lane, whereas the suit shop is situated on main road. Defendant did not pay rent w.e.f. 1-2-1986 despite notice dated 16-4-1986 issued by registered post. Hence, the suit for eviction under Sections 12(1)(a) and (1) of the M.P. Accommodation Control Act, 1961.

The defendant refuted the claim of the plaintiff by submitting his written statement. He inter alia pleaded that the alleged partition was a sham transaction. It was prepared fictitiously for seeking eviction of defendant from the suit shop. Plaintiff was occupying the shop belonging to HUF and the proceeding for eviction by his brother Surendra Kumar against him was again a concocted proceeding. Alleged partition was also denied. Similarly, alleged need of the plaintiff as well as non-availability of alternative, suitable, vacant accommodation of non-residential nature was also denied. It was further pleaded that the defendant was tenant of Kesrimal. Intimation about the alleged partition was never served upon the defendant. Sons of the plaintiff, namely, Surendra Kumar and Rajendra Kumar are serving outside Vidisha and, thus, the plaintiff has no need to start the business in the aforesaid suit shop. During evidence, certified copy of judgment and decree for partition was produced, which was objected for want of stamp duty and registration etc. It was directed that the said objection would be decided subsequently. However, the learned Trial Judge without deciding the objection, decreed the suit in favour of the plaintiff. As regards arrears of rent, it was pleaded that the defendant was not in arrears and the father of the plaintiff used to recover the rent cumulatively within 6 to 8 months. Defendant had paid advance rent of four months, which was liable to be adjusted towards rent.

Learned Trial Judge after recording the evidence decreed the suit in favour of the plaintiff vide judgment and decree dated 20-4-2000. Aggrieved by it, civil appeal was submitted, which having been dismissed by the impugned judgment and decree, present appeal is preferred, which is heard on the substantial questions of law, as already stated above.

Learned Counsel for the parties have been heard at length. Their submissions have been considered in the light of material on record and the law governing the situation.

Substantial Questions of Law No. 2:

This substantial question pertains to challenge to the decree for eviction on the ground of Section 12(1)(a) of the Act. As per the plaint averments, the defendant was in arrears of rent w.e.f. 1-2-1986. Suit was instituted on 31-10-1986. Though the defendant pleaded that an amount of four months'' rent was deposited as advance, the same could not be proved as found by the Courts below. At the relevant time, the term ''dispute'' within the meaning of Section 13(2) of the M.P. Accommodation Act as interpreted by this Court in various judgments included the dispute with respect to rate of rent as well as quantum thereof. This being so, application of the defendant u/s 13(2) of the Act was duly entertained and a provisional order was passed by the Trial Court on 6-5-1991. Defendant was directed to deposit the rent w.e.f. 1-2-1986 @ Rs. 300/-. Summer vacation of the Civil Court in the year 1991 commenced from 20th May, 1991 and ended with 22nd June, 1991, which was Saturday. 24th June, 1991 was local holiday at Vidisha as revealed in the order sheet of Court of II ADJ Vidisha placed on record with I.A. No. 11292/09.

This being so, the deposit of entire arrears of rent on 25-6-1991 by the defendant will be deemed to be made on reopening day of Civil Court. Accordingly, the deposit made by the defendant is found valid on account of having been made within one month. It has been admitted before this Court by the learned Counsel for the plaintiff/respondent that there is no further default in the matter of deposit. It was so recorded by this Court on 21-7-2009. Considering it, the defendant/appellant would be entitled to benefit of Sections 12(3) and 13(5) of the M.P. Accommodation Control Act. Accordingly, the substantial question of Law No. 2 is decided in favour of the defendant/appellant giving him benefit of Sections 12(3) and 13(5) of M.P. Accommodation Control Act.

Substantial Question of Law No. 3:

It is contended by Shri Tomar, learned Senior Counsel that Exh. P-11 is a decree for partition, which is neither stamped nor registered. Thus, the same being inadmissible, it could not have been taken into consideration.

Shri K.N. Gupta, learned Senior Counsel countered it by saying that it has been rightly taken into consideration.

It is argued by Shri Tomar that an objection was raised at the time of tendering the partition decree with annexures about admissibility. This is so revealed in the statement of the plaintiff (P.W. 1). As per the note put by the Trial Court, the said objection was to be decided before the judgment. It is contended that objection was never decided. Consideration of the documents (Exhs. P-1, P-2 and P-11) without deciding the objections is totally illegal and without jurisdiction and the findings based thereon stand vitiated. Relying upon an unreported decision of this Court dated 20th September, 1995, in F.A. No. 76/1992 Paras Ram and Anr. v. Pooran and Ors., it is submitted by the learned Senior Counsel Shri Tomar that the matter deserves to be remitted back to the Trial Court for rendering fresh decision after deciding the objections.

While countering it, Shri K.N. Gupta, learned Senior Counsel submitted that the defendant having accepted the plaintiff as landlord is now estopped from challenging the partition and, therefore, no interference in the impugned judgment on this count is warranted.

Considered the submissions of both the Counsel.

Case of the plaintiff is that the defendant was inducted into the suit shop by his father Kesrimal vide rent note dated 1-11-1974. A partition took place as revealed in the decree dated 25-3-1975 (Exh. P-11). Accordingly, a portion comprising suit shop was allotted to the plaintiff. Intimation about the partition was given to the defendant, who pursuant thereto made payment of rent to the plaintiff upto 31-1-1986. Various counterfoils of rent receipts marked as Exhs. P-12 to P67 (56 in numbers) are on record containing signatures of the defendant. In all the counterfoils, plaintiff has been shown as the landlord/owner of the suit premises. Defendant in his statement on oath has admitted that these counterfoils bear his signatures. Thus, the partition decree marked as Exh. P-11 is found to have been acted upon in as much as pursuant thereto the defendant has accepted the rent receipts showing plaintiff as landlord cum owner of the suit premises. Since the defendant himself has admitted the plaintiff as landlord of the suit premises, admissibility/inadmissibility of Exh. P-11 shall not have vitiating effect on the crucial finding rendered by the Courts below about relationship of landlord and tenant between plaintiff and defendant.

However, alleged partition decree shall have far reaching impact also on the question of bona fide need inasmuch as in the absence of partition, the entire property belonging to Kesrimal would remain accountable while examining the availability of alternative non-residential accommodation. Acceptance by the defendant about the landlordship of the plaintiff would at the most enable the plaintiff to sue the defendant for eviction in his individual name. Since the plaintiff is a member of HUF of Kesrimal, he otherwise also could have been accepted as landlord. Thus, acceptance of rend receipts issued in the name of plaintiff as landlord is no proof of acceptance by the defendant of alleged partition, moreso, when the defendant in Paragraph 3 has clearly stated that the alleged partition is fictitious and collusive and is brought into existence for seeking eviction of old tenant. It has been challenged as a sham transaction. Hon''ble Supreme Court in the case of Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa AMabadas Bukate, , has held that tenant is entitled to take a plea that a partition alleged by the plaintiff/landlord is a sham transaction and is brought into existence merely in order to seek eviction. This being so, it is obligatory on the part of the plaintiff/landlord to prove partition in accordance with law because in the absence of partition entire property belonging to HUF becomes accountable. I may successfully refer for this purpose this Court''s view in the case of Radhika Prasad v. Gyasi Lal 1967 MPLJ Note 113. Viewing from this angle, it was necessary for the Trial Court to decide the question of admissibility of Exh. P-11 before deciding the suit on merits.

This Court in F.A. No. 76/92 held in its decision dated 20th September, 1995:

The next contention is important, it is apparent from the record that when the statement of Puran Singh (P.W. 1) was being recorded and the documents was shown to the witness, an objection was raised that the agreement was not properly stamped and stamp duty ought to have been paid on the whole of the amount involved. The learned Court did not pass an order on this objection and proceeded to record the evidence reserving the right of objection, the evidence was taken. Thus, it was the duty of the learned Trial Court to have disposed of the objection of the defendant with respect to the admissibility to the document on account of insufficiency of stamp-duty. As it was not done, the learned Court failed in its duty. The case could not proceed in absence of disposal of this objection, as the document cannot be read unless the objection is disposed of and it was held that it was admissible. The duty of the Trial Court is to have disposed of the objection. The document could be read or taken into evidence if the Court holds that stamp duty was properly paid or if it was not properly paid, the document is impounded and then the stamp duty is paid. The finding of the learned Trial Court based upon such a document cannot therefore, be allowed to stand and must be set aside under these circumstances.

From the aforesaid discussion, it is clear that the learned Trial Judge shirked from its responsibility to decide the question of admissibility of Exh. P-11 before deciding the suit on merits, though its admissibility was objected to expressly and specifically. However, fact remains that the question of admissibility was not decided at all by the learned Trial Judge while rendering the decision on merits. Learned Lower Appellate Court also ignored the aforesaid illegality and rendered the impugned judgment. Finding about unavailability of alternative accommodation cannot be examined unless the alleged decree of partition, Exh. P-11 is found admissible.

Long back the Apex Court in the case of Javer Chand and Others Vs. Pukhraj Surana, , has observed--

Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence.

In view of the aforesaid discussion, substantial question of Law No. 3 is decided in favour of the appellant. It is held that the Courts below have acted illegally in rendering the judgment on the basis of Exh. P-11 without deciding the objections about admissibility.

Substantial Question of Law No. 1:

As regards this substantial question, it has already been observed in the preceding paragraphs that finding about bonafide need could not have been legally recorded by the Courts below without first deciding the objection about admissibility of the partition decree contained in Exh. P-11. Question of bonafide need is to be examined only after decision of admissibility of the said decree because the yardsticks for examining such need would be different when the partition is held proved and when the partition is not held proved. However, it is held that the finding about bonafide need recorded by the Courts below without deciding the objection about admissibility of Exh. P-11 is not presently sustainable in law. Substantial question of Law No. 1 is answered accordingly.

In the result, appeal is allowed in part. Defendant having accepted the plaintiff as landlord as revealed in Exhs. P-12 to P-67 is held a tenant of the plaintiff at the rent of Rs. 300/- per month. Finding about arrears of rent is also confirmed. However, giving the benefit of Sections 12(3) and 13(5) of M.P. Accommodation Control Act, suit for eviction on the ground of Section 12(1)(a) of the Act stands dismissed. As regards claim for eviction on the ground of bonafide need, the same is to be re-adjudicated by the Trial Court after deciding the objection about admissibility of Exh. P-11. No fresh evidence is to be recorded. Learned Trial Judge will allow both the parties to address on the question of admissibility of Exh. P-11 and will thereafter pass a fresh decision in accordance with law within a period of three months from the date of appearance. Parties to appear in the Trial Court on 20th October, 2009. Judgment and decree of the Courts below are set aside to the aforesaid extent.

No order as to costs.