Singhal Tent House Ratlam vs Smt. Umadevi Rathi

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the judgment dated 09/02/07 passed by II ADJ, Ratlam in Civil Appeal No.44-A/06, whereby judgment dated 21/10/06 passed by III Civil Judge, Class-I, Ratlam in Civil Suit No.77-A/04 whereby suit filed by the respondent was dismissed, was reversed and decree of eviction was passed u/s 12(1)(e)(f)&(i) of M.P. Accommodation Control Act, present appeal has been filed.

Short facts of the case are that the respondent filed a suit for eviction against the appellant on 09/09/91 alleging that the respondent is owner of a house bearing Municipal house No.92, ward No.15 situated at Station Road, Ratlam, which has been purchased by the respondent vide registered sale deed dated 22/06/89 from one Sanjay Dave. It was alleged that the appellant is in occupation of the suit house as tenant @ Rs.300/- per month. It was alleged that after purchasing the property appellant has become tenant of the respondent. It was alleged that the tenancy of the appellant is for composite purpose such as residential and non-residential. It was alleged that the appellant is carrying on his business in the name and style M/s Singhal Decorators on the front part of the suit accommodation and is residing in the rear part. It was alleged that the respondent requires the suit accommodation for caryring on her business and also for residence. It was alleged that the respondent is carrying on her business in the name and style M/s Rathi Agro Agency, Ratlam. It was alleged that the respondent is having no other alternative suitable accommodation to fulfill her requirement. It was alleged that the respondent is residing at 67-Shastri Nagar, Ratlam alongwith her family which belongs to Badrinarayan Rathi who happens to be her father-in-law. It was alleged that previously the family of the respondent and father-in-law were joint, but at the time of filing of the suit respondent is residing in the house of Badrinarayan separately. It was alleged that from this house only the respondent is carrying on her business. It was further alleged that appellant has purchased a house at Telephone Nagar from where appellant is residing and carrying on her business. It was alleged that the suit filed by the respondent be decreed and the appellant be directed to vacate the suit accommodation.

The suit was contested by the appellant on various grounds. However, it was not disputed that the status of the appellant is of tenant. It was denied that the respondent requires the suit accommodation for her residence and for carrying on the business. It was prayed that the suit be dismissed. After framing of issues and recording of evidence learned trial Court dismissed the suit, against which an appeal was filed, which was allowed and after setting aside the judgment and decree passed by the learned trial Court decree of eviction was passed u/s 12(1)(e)(f)&(i) of M.P. Accommodation Control Act, against which present appeal has been filed.

Learned counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that during pendency of the appeal an amendment application was filed by the appellant, wherein subsequent event such as the death of mother-in-law and father-in-law of the respondent was pleaded and it was also alleged that the alleged need has come to an end as at the time of filing of the suit respondent was residing in the house of her father-in-law, who is no more. It is submitted that the amendment application filed by the appellant was allowed, but inspite of that appellant was given no opportunity to prove the facts stated in the proposed amendment, which are based on subsequent events. It is submitted that since no opportunity to adduce the evidence was given to the appellant, therefore, the judgment and decree passed by the learned Appellate Court cannot be allowed to sustain. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the judgment and decree passed by the learned Appellate Court be set aside and the case be remanded to the learned Appellate Court to re-decide the appeal after recording of evidence.

Learned counsel for the respondent submits that no illegality has been committed by the learned Appellate Court in decreeing the appeal filed by the respondent, as the appellant himself has stated as observed by the learned Appellate Court that the appellant does not want to lead any evidence on account of proposed amendment. It is submitted that respondent is living and carrying on her business in the house which was owned by the father-in-law of the respondent. It is submitted that in the proposed amendment it is no where pleaded by the appellant that after the death of her father-in-law respondent has succeeded the property in which respondent is residing. It is submitted that enough evidence is on record to demonstrate that the father-in-law of the respondent was having number of legal representatives. It is submitted that unless and until by cogent evidence it is proved that the property which was owned by father-in-law of the respondent has fallen to the share of respondent, the decree could not have been refused. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant has no merits and the same be dismissed.

From perusal of the record it is evident that the suit was filed in the year 1991 and the written statement which was filed on 24/10/94 was amended on 28/07/98, 17/09/99, 18/04/2000, 23/06/05 and 09/02/07. To prove the contents of the plaint respondent filed the documents Ex.P/1 to Ex.P/5. Ex.P/1 is the sale deed, Ex.P/2 is the rent receipt, Ex.P/3 & Ex.P/4 are the certificate of registration of the firm owned by respondent and Ex.P/5 is the sale deed. Respondent examined herself as PW/1, Navalkishore Rathi PW/2, Badrinarayan Rathi PW/3 and Krishnagopal PW/4. While appellant has examined Manju Singhal DW/1 and Sameer Goyal DW/2.

In para 2 of cross-examination of Navalkishre Rathi it has come that he is also having a younger brother namely Shyam Sunder, who was borne in the year 1961 and was M.Com and was also in the same trade and was carrying on his business with his father. It is true that Badrinarayan died and amendment application was also allowed by the Appellate Court, but in the amendment application the only thing which has been stated is that after the death of father-in-law and mother-in-law of the respondent, the property owned by the father-in-law of the respondent has come in occupation of the respondent and the respondent is trying to let out the property. Even if it is assume that the property has come into the possession of respondent, then too, only on that ground it cannot be said that the suit property is owned by respondent, specially in the circumstances when this fact is on record that the husband of respondent are two brothers. Since the appellant himself has stated as observed in the impugned judgment that in case the amendment application is allowed, he shall not be required to adduce any evidence, this Court is of the view that the learned Appellate Court committed no error in allowing the appeal filed by the respondent and in setting aside the judgment and decree passed by the learned Trial Court. In view of this, appeal filed by the appellant has no merits and the same stands dismissed.

Since in consequence the appellant has to vacate the suit accommodation, therefore, to save the appellant from peril of eviction, it is made clear that the order of eviction shall not be executed on or before 01/03/2014 on the condition that the appellant herein files an undertaking before the learned trial Court within six weeks to the following effect namely :

that the appellant herein shall not induct any other person in the suit premises and shall hand-over vacant and peaceful possession of the said premises to the respondent/landlord on or before the 01/03/2014.

that the appellant herein shall pay to the respondent/landlord arrears of rent, if any, within one month from today and shall pay to the respondent/landlord future compensation for use and occupation of the suit premises month by month before the 10th day of every month.

With the aforesaid observations, appeal stands disposed of. No order as to costs.