Manak Chand vs Govardhan Das and Others

S.K. Pande, J.

Being aggrieved by the judgment-decree dated 23.03.2000, passed by District Judge, Balaghat in C.A. No.78-A/99 reversing the judgment-decree dated 22.07.93 passed by III Civil Judge Class II, Balaghat in C.S. No. 292-A/87, plaintiff/appellant has preferred this appeal u/s 100 of the C.F.C.

The appeal has been admitted on the following substantial questions of law :-

(1) Could the learned Lower appellant Court consider the agreement dated 05.05.95 purported to be an agreement for sale in favour of Kishore Kumar who was not a party to the Civil Suit without any trial on the issue particularly when no sale or assignment was complete and reverse the findings recorded by the Learned Trial Court in which he did not note any fault ?

(2) Has the First Appellate Court interpreted the written statement and evidence in holding that Gowardhan Das (respondent) has not parted with possession of the suit shop even when he was come out of the partnership ?

Facts in brief are, the suit house No.19, Main Road Balaghat, fully described in para 1 of the plaint was let out to defendant/respondent Gowardhan Das in the year 1970 on a monthly rend of Rs.250/- RM. Gowardhan Das had a cycle shop known as Goyal Cycle Stores. In the year 1977-78, defendant/respondent Gowardhan Das constituted a partnership firm consisting of himself, Kamal Chand and Rajkumar as its partners. This firm was subsequently dissolved on 01.11.86, whereby defendant/respondent Gowardhan Das have retired. The firm then was owned by defendant/respondent Kamal Chand. Defendant/respondent Kamal Chand is in possession of the suit house and is running a shop of his own since then. Plaintiff/appellant filed C.S. No.292-A/87 in the court of III Civil Judge Class II, Balaghat for seeking eviction of defendant/respondents u/s 12(1)(b)(f) of the M.P. Accommodation Control Act on the ground that the defendant/respondent Gowardhan Das being a tenant had unlawfully sublet parted with possession of the suit house to defendant/ respondent and that the suit house is bonafidee required by the plaintiff/ landlord for opening his own shop of motor parts as he has no other alternative accommodation of his own. The suit was resisted by the defendant/respondents stating interalia that Gowardhan Das was tenant of the plaintiff/appellant since 1970 and was running a shop of his own known as Goyal Cycle Stores. On constitution of partnership firm, the rent was paid in the name of M/s Goyal Cycly Stores. Defendant/respondent Kamal Chand was a partner of the firm. On 01.11.96, Gowardhan Das, Raj Kumar retired from the partnership firm since then Kamal Chand became owner of the shop M/s Goyal Cycle Stores. The suit house is not bonafidee required by the plaintiff-landlord as during the pendency of C.A. No. 78-A/99, he has executed an agreement dated 05.05.95 to execute a sale deed of the suit house in favour of one Kishore Kumar S/o Dwarkaprasad Gupta.

The Civil Judge in C.S. No. 292-A/87 vide judgment dated 22.07.93 catagorically held that defendant/respondent Gowardhan Das was inducted into the tenancy in the year 1970. Defendant/respondent Gowardhan Das was running a shop of his own known as Goyal Cycle Stores and in the year 1977-78, constituted a partnership firm, wherein Kamal Chand and Rajkumar were also inducted as partners. The partnership firm was dissolved on 01.11.86, whereby Gowardhan Das and Raj Kumar have retired and defendant/ respondent Kamal Chand continued in possession of the suit house where he is running a shop of his own known as M/s Goyal Cycle Stores. This act on the part of defendant/respondent Gowardhan Das amounts to creation of subtenancy and parting with possession of the tenanted premises to defendant/ respondent Kamal Chand. The Civil Judge further held that the suit house is bonafidee required by plaintiff/respondent as his shop of motor parts is in the premises which is also been used by his son for other business. Accordingly, the suit was decreed u/s 12(1) (b) (e) of the M.P. Accommodation Control Act. Being aggrieved by the defendant/respondents preferred C.A. No. 78-A/99. With reference to agreement dated 05.05.95, executed by plaintiff/appellant in favour of Kishore Kumar S/o Dwarkaprasad, the first appellate court concluded that alleged need of the plaintiff/appellant has extinguished, since he has entered into an agreement of sale with Kishore Kumar. It was held that a partnership firm was constituted in the year 1977-78, where defendant/ respondent Kamal Chand was a partner. The business of the firm in the name of M/s Goyal Cycle Stores continued and on dissolution, Kamal Chand became the owner of the shop. Kamal Chand continued in illegal possession. As such the first appellate Court allowed the appeal and dismissed the suit for eviction u/s 12 (1) (b) (f) of the M.P. Accommodation Control Act.

In this appeal, defendant/respondents preferred cross objection u/o 41 Rule 22 CPC. It was contended before the First Appellate Court that C.S. No.292-A/87 as per distribution memo could not have been filed in the Court of III Civil Judge Class II, Balaghat. The requisite court fees was not paid by the plaintiff. In fact application u/s 12 of the M.P. Accommodation Control Act was filed by the plaintiff/appellant in the Court of RCA, Balaghat. With reference to subsequent amendment in the act, it was sent by him to the District Civil Court.

In the impugned judgment of district Judge in para 13, it has been held that a fresh distribution memo dated 07.01.85 was issued by the District Judge Balaghat. Accordingly, the suit was rightly sent to the Court of III Civil Judge Class II on 1.04.85. The application before the RCA was presented on a fixed Court fees and on objection being raised, deficit court fees was paid by the plaintiff/appellant in the first appellate Court. It was accordingly condoned u/s 149 C.P.C. There is no force in the cross objection preferred by defendant/ respondents. III Civil Judge/Class II, Balaghat had rightly exercised jurisdiction and the deficit court fees had been paid. Courts objection u/o 41 rule 22 CPC accordingly dismissed. Plaintiff/appellant has submitted that for non-compliance of provision of Section 13(1), the defence against eviction be struck out u/s 13(6) of the M.P. Accommodation Control Act. Defendant/respondents have submitted that rent has been deposited till the month of March, 2003. Receipts depositing rent have been filed. Accordingly, application u/s 13(6) has been dismissed.

P.W.1 Manak Chand has stated that the suit house was given to defendant/respondent Gowardhan Das in the year 1970 on a monthly rent of Rs.250/- per month till 1977. Gowardhan Das was running a shop of his won. Thereafter constituted a partnership firm. This partnership firm was also dissolved and defendant/respondent Gowardhan Das parted with possession of the suit house to defendant/respondent Kamal Chand. At present defendant/ respondent Kamal Chand is running a shop of his own in the suit house. D.W.1 Gowardhan Das also has stated that he was inducted into tenancy in the year 1970 and was running a cycle shop of his own known as Goyal Cycle Stores. The partnership firm was constituted by him in the year 1977, wherein, alongwith Kamal Chand and Raj Kumar, he was also a partner. This partnership was dissolved. Thereafter defendant/respondent Kamal Chand is running the business in the suit house in the name of M/s Goyal Cycle Stores. This statement of PW-2 Gowardhan Das has been admitted by D.W-1 Kamal Chand. This being the position. It is clear that the suit house was given to defendant/ respondent Gowardhan Das on a monthly rend of Rs.250/- P.M. in the year 1970. Gowardhan Das was running a business of his own in the name of Goyal Cycle Stores. In 1977-78, a partnership firm was constituted, wherein he himself and Kamal Chand, Raj Kumar, defendant/respondents respectively were made partners. On 01.11.86, this partnership firm was dissolved and defendant/ respondent Kamal Chand became the owner of M/s Goyal Cycle Stores. Accordingly, it is clear that defendant/respondent on 01.11.86 has created a subtenancy or parted with possession of the tenant premises of the suit house to defendant/respondent Kamal Chand. Defendant/respondent Kamal Chand is running a shop of his own in the name of M/s Goyal Cycle Stores.

The contention of the defendant/respondent is that after the constitution of firm in the year 1977, the rent was paid by the firm and it was accepted by the plaintiff/appellant. Rent receipts exhibit D-1, D-2, D-3, D-4 were always issued in the name of Goyal Cycle Stores. D.W.-2 Gowardhan Das has stated that since 1970, he was running a shop in the suit house in the name of Goyal Cycle Stores. There is no evidence to the effect that at any point of time the partnership firm M/s Goyal Cycle Stores had become the tenant of the plaintiff/ appellant in the suit house.

It has been contended that with reference to judgment reported in Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and Others, . where in a rented premises, business of partnership firm has been carried out of which one of the partner was tenant, there cannot be subletting or parting of possession by the tenant. In the instant case, defendant/ respondent Gowardhan Das alone was inducted into tenancy in the year 1970. The partnership firm was constituted in the year 1977-78, wherein Gowardhan Das alongwith defendant/respondent Kamal Chand, Raj Kumar was a partner. It is admitted that on 01.11.86, this partnership was dissolved leaving defendant/ respondent Kamal Chand as sole proprietor of the business M/s Goyal Cycle Stores. At no point of time defendant/respondent Kamal Chand was a tenant of the plaintiff/appellant Manak Chand.

Judgment reported in 1971 MPLJ 232 and Mohammedkasam Haji Gulambhai Vs. Bakerali Fatehali (D) By Lrs., are to the effect that in such circumstances, parting away with possession by original tenant Gowardhan Das in favour on Kamal Chand would amount subletting.

Accordingly, the first appellate Court erred in holding that defendant/ respondent Kamal Chand is in legal possession of the suit house. Original tenant Gowardhan Das shall be deemed to have sublet or parted with possession suit house to Kamal Chand. Therefore, plaintiff/appellant is entitled to a decree of eviction u/s 12(1) (b) of the M.P. Accommodation Control Act.

P.W.-1 Manak Chand has stated that the suit house is bonafidee required by him for running a shop of his own of motor parts. At present, he is doing his business in one part of a house where his younger brother K.C. Chand also running his own business of cassette dubbing. This statement of bonafide requirement was rightly negatived by the first appellate Court with reference to agreement of sale dated 05.05.95 executed by P.W.-1 Manak Chand in favour of Kishore Kumar S/o Dwarkaprasad. In this agreement (exhibit A-1), P.W.-1 Manak Chand has referred to the present litigation pending and in the event of success, agreed to execute a sale deed in favour of Kishore Kumar, S/o Dwarkaprasad. Now the only purpose of seeking eviction is to execute a saledeed in favour of Kishore Kumar S/o Dwarka Prasad. Therefore, the plea of bonafide need u/s 12(1) (f) of the M.P. Accommodation Control Act was rightly held negatived.

Since the defendant/respondent Gowardhan Das has sublet or otherwise parted with possession of the suit house to defendant/respondent Kamal Chand, plaintiff/appellant is entitled for a decree of eviction u/s 12(1)(b) of the M.P. Accommodation Control Act. The First Appellate Court erred in allowing the appeal against judgment-decree dated 22.07.93 passed by III Civil Judge Class II, Balaghat in C.S. No.292-A/87. Accordingly the appeal is allowed. The impugned judgment-decree dated 23.03.2000 passed by District Judge, Balaghat in C.A. No. 78-A/99 dismissing C.S. No. 292-A/87 are set aside instead C.S. No.292-A/87 is decreed. Defendant/respondent are directed to deliver possession of the suit house to plaintiff/appellant Manak Chand within 3 months time. Defendant/respondent shall bear their costs and pay the cost of the plaintiff/appellant. Counsel fees as per rule or certificate (whichever is less).