Vinod S/o Mathura vs State of M.P. through P.S.

The appellant/original defendant has filed this second appeal under Section 100 of the C.P.C. against the judgment and decree dated 13.5.2016 passed by the Fifth Additional District Judge, Sagar in Civil Appeal No.34-A/2016, reversing the judgment and decree passed on 03.10.2013 by the Second Additional Civil Judge Class-II to the First Civil Judge Class-II, Sagar in Civil Suit No.16- A/2013. The trial Court had dismissed the suit of eviction of tenant and getting vacant possession of suit-accommodation (shop), arrears of rent and mesne profit filed on grounds envisaged under Section 12(1)(a) and 12(1)(f) of the M.P. Accommodation Control Act, 1961, but the appeal filed by original plaintiff Kunti Bai was partially allowed by the First Appellate Court, who decreed the eviction suit on ground envisaged under Section 12(1)(f) of the above mentioned Act.

Undisputedly, the defendant Sumatchand is a tenant of plaintiff in a room/shop having size 9 x 24 square feet on ground floor of a five storeyed building from the year 1971. The tenant was running a medical shop in the suit-accommodation titled as ''Sumat Medical Store'' and at the time of filing of the suit, the current rate of rent was Rs.600/- per month.

The plaintiff filed a suit before the trial Court on pleadings that the rent towards the defendant remained due from the month of April, 2006. The suit-accommodation is bonafidely required by the plaintiff for starting a shop for wholesale business of selling medicines for her son Arvind Kumar Jain and the suit- accommodation is suitable for starting such shop. The plaintiff is not having any other suitable shop for this purpose. Presently his son Arvind Kumar Jain is a partner in firm ''Mukesh Medical Store'' but her son Arvind Kumar Jain is desirous of opening a separate shop for selling medicines on wholesale basis to increase his business. By notice dated 12.01.2009 sent by registered post, arrears of rent and vacant possession of suit-accommodation were demanded, in reply of which the defendant sent a cancelled cheque for Rs.21,600/-, thus the relating amount could not be received by the plaintiff. By filed suit, reliefs of vacant possession of disputed shop, leaving time barred rent, arrears of rent Rs.18,000/- for the period from September, 2006 and mesne profit at the rate of Rs.5000/- per month from date of the suit were sought.

The defendant pleaded in his written statement that the suit is time, barred because rent from April, 2006 has been demanded. The plaintiff has not paid proper court-fee and has not properly valued the suit. The defendant is a tenant for the last 38 years in the disputed shop and from the month of April, 2006, rent through cheque was given for each month but the plaintiff did not get the relating cheques encashed, thus the defendant was compelled to file a petition under Section 25(1)(6) of the above mentioned Act before the Rent Controlling Authority. In the meanwhile, the plaintiff filed this civil suit for eviction. Thus, the Rent Controlling Authority directed the defendant to deposit rent before the Civil Court and the defendant has deposited all the arrears of rent after receiving the summons of the suit within prescribed period. The defendant has properly replied the notice given by the plaintiff prior to filing of the suit and with reply he sent a cheque for the total arrears of rent, but the relating cheque was cancelled by the plaintiff himself. Plaintiff''s son Arvind Kumar Jain was previously serving and he did not require any accommodation. The plaintiff is pleading false need for her son Arvind Kumar Jain only to create a ground of eviction. The plaintiff is having alternative shops in the same building and in other houses situated in Sagar city. Thus, it was prayed that the suit be dismissed.

Learned trial Judge on the basis of pleadings of the parties framed issues. The learned trial Judge after recording evidence and hearing by above mentioned judgment and decree dismissed the suit recoding findings that it was not proved that the demanded arrears of rent was not paid or tendered by the defendant after receiving the notice sent by the plaintiff prior to filing of the suit; it was not proved that the plaintiff bonafidely required the suit- accommodation for starting a shop of her son Arvind Kumar Jain, but the plaintiff is entitled to receive Rs.18,000/- as arrears of rent which were deposited; it was not proved that the plaintiff is entitled to receive damages from March, 2009 to July, 2009 at the rate of Rs.3000/- per month and from the date of the suit at the rate of Rs.5000/- per month; the suit is not time barred; the plaintiff has properly valued the suit and had paid proper court-fee; the trial Court was having jurisdiction to try the suit and it was not proved that the plaintiff is not having any other alternative suitable shop for alleged need of her son Arvind Kumar Jain and thus the suit for eviction of tenant was partially dismissed and it was decreed only for legally recoverable rent prior to filing of the suit and pendente lite rent.

In appeal filed by the plaintiff, the defendant also filed a cross- objection regarding findings of trial Court on the issues of limitation, proper valuation and court-fee. The Appellate Court dismissed the cross-objection of the defendant and dismissed the plaintiff''s appeal regarding ground envisaged under Section 12(1)(a) of the M.P. Accommodation Control Act but, it decreed the suit for eviction on the ground envisaged under Section 12(1)(f) of the above mentioned Act.

Learned counsel for the appellant vehemently contended that the First Appellant Court erred in reversing the well reasoned findings of the trial Court regarding grounds envisaged under Section 12(1)(f) of the above mentioned Act as it was proved from the evidence available on record that the plaintiff''s son Arvind Kumar Jain did not bonafidely require the suit shop for starting a wholesale business of selling medicines and it was also proved that there were alternative shops available to the plaintiff and her son for starting a new shop. It was further argued by the appellant''s learned counsel that there were material contradictions between the evidence of the plaintiff Kunti Bai (P.W.1) and her son Arvind Kumar Jain (P.W.2) regarding the partition among the sons of the plaintiff and on other material points. Reliance has been placed on the citations of Raj Kumar Jain Vs. Smt.Usha Mukhariya [2009 (1) M.P.L.J. 343] and Gyasi Nayak Vs. Gyanchandra Jain [2010 (3) M.P.L.J. 203] by the learned counsel for the appellant.

Plaintiff Kunti Bai (P.W.1) clearly deposed that presently his son Arvind Kumar Jain is a partner in the firm ''Mukesh Medical Store'', but Arvind Kumar Jain is desirous to start a separate shop for wholesale business of selling medicines and thus, she bonafidely required the suit-accommodation and his son Arvind Kumar Jain is having experience of medical business. Her evidence is supported by her son Arvind Kumar Jain (P.W.2), Komalchand (P.W.3) and Anil Kumar Jain (P.W.4). Arivnd Kumar Jain (P.W.2) deposed that he is having 27% share in the firm ''Mukesh Medical Store'' and is having annual income about Rs.2,00,000/- from Mukesh Medical Store and he files income tax returns, under which he shows his above mentioned income. Kunti Bai (P.W.1) admitted that his son Arvind Kumar Jain is residing separately from her in Gopalganj Mohalla of Sagar city. She admitted that Mukesh Medical Store is for retail selling of medicines. She deposed that she is not having any bank account, whereas Arvind Kumar Jain (P.W.2) deposed that his mother is having a bank account. She deposed in cross- examination that Arvind Kumar is her sixth numbered child. She is also having other children younger than Arvind Kumar. She deposed that presently Arvind Kumar Jain is not doing any work. He sits at the shop of Mukesh Medical Store only for one or two hours. She deposed that her five sons are living in Sagar.

Arvind Kumar Jain (P.W.2) deposed that the suit-accommodation is situated in the main market of Sagar city, thus it is suitable for starting selling wholesale medicines as in front of it there is a shop of retail selling of medicines and nearby some other shops of wholesale medicines of other people are situated. Arvind Kumar Jain (P.W.2) clearly deposed that his wife Anita has purchased a house in Madhukar Shah ward where he lives with his wife and children, but that house is totally residential. In cross-examination, Arvind Kumar Jain (P.W.2) deposed that he lives in Gopalganj. He deposed in cross-examination (para 6) that his all brothers are separately living and doing separate business whereas his mother has shown ignorance about any partition among her sons in her cross-examination. Arvind Kumar Jain (P.W.2) had deposed in cross- examination that each brother has separately purchased a house in different mohallas of Sagar city. Learned appellant''s counsel had given much emphasis on admission of Arvind Kumar Jain (P.W.2) in his cross-examination (para 11) that in residential house situated in Gopalganj towards road, a shop is vacant, which is having a shutter, but in the same para, he has denied the suggestion of defendant''s counsel that in that house, the business of medicines would run successfully. In the same para, he has deposed that the house of Gopalganj is owned by his wife. The defendant has filed certified copy of registered sale-deed dated 20.02.2008 executed in favour of purchaser Smt.Anita w/o Arvind Kumar Jain, which has been marked as Ex.D.37-C. According to recitals of the sale-deed Ex.D.37, the sold house is of residential purpose only. Ex.D.37 also contains a map relating to sold house by the seller to purchaser Anita. In this map, no any shop has been shown. Admittedly, this house is owned by Smt.Anita and not by plaintiff Kunti Bai, who is admittedly the landlord of the tenant for the suit-accommodation.

The Supreme Court in the case of Meenal Eknath Kshirsagar (Mrs) Vs. Traders and Agencies and another [(1996) 5 SCC 344] has observed in para 14 as follows:-

''Para 14: It is further held therein that what is to be considered is not merely the availability of alternative accommodation, but also whether the landlord has a legal right to such accommodation."

In light of the above citation, it could not be said that plaintiff Kunti Bai is having a suitable alternative non-residential accommodation to fulfil the alleged need, whereas Arvind Kuamr Jain (P.W.2) has clearly deposed that the locality of Gopalganj is not suitable for selling medicines. In the light of citation Shanker Upadhyaya Vs. Naveen Maheshwari [2010 (2) M.P.L.J. 243], the plaintiff or his family members could not be compelled to start the required shop in non-suitable locality whereas in the present case, appellant/defendant Sumatchand (D.W.1) himself has deposed in para 26 that there are so many shops situated adjacent to his shop and in the opposite line including various medical shops.

It is argued by the appellant''s counsel that at present Arvind Kumar Jain (P.W.2) is about 50 years old and he admitted in cross- examination that he obtained a degree of B.E. (Mechanical) in the year 1990 and from the same year he had started the business of medicines. Arvind Kumar Jain (P.W.2) had admitted in cross- examination (para 14) that in the same house, where suit- accommodation is situated in the ground floor, there is a medical shop of his brothers Rajendra and Padam for wholesale business of medicines, but he has no connection with that shop of other brothers. He has clearly deposed in cross-examination that the shop titled ''Integral Engineering Service'' is not owned by him and he only looks for the work of this firm and two persons named Rajeev Ghura (his brother-in-law) and Alok Tiwari are conducting this firm and he only gives directions to them and he has clearly deposed that he is having no connection with the shop titled ''Integral Engineering Service''.

It is clear from the evidence of the witnesses that the alleged alternative shop disclosed by the defendant adjacent to the suit- accommodation on the ground floor of the same building is only a passage for going to ground floor wherein only ladders are available for going and returning from the upper storeys of the same building.

It appears that the learned Appellate Court has properly discussed the oral and documentary evidence available on record in light of so many referred citations. There appears no any perversity in the findings recorded by the Appellate Court regarding Section 12(1)(f) of the M.P. Accommodation Control Act.

After hearing arguments in the second appeal on the point of admission, I.A.No.2235/2017 has been filed by the respondent''s counsel alongwith a certified copy of the order-sheet recorded by the executing Court dated 20.12.2016. It has been stated in the application that appellant Sumatchand has delivered possession of the suit-accommodation to the respondent/decree-holder Kunti Bai and this fact is also clear from the annexed certified copy of the order dated 20.12.2016 passed by the executing Court. It has been mentioned in above mentioned applilcation that now nothing survives in this appeal and same has become infructuous and thus it is liable to be dismissed. In certified copy of order dated 20.12.2016 passed by the Fifth Civil Judge Class-II, Sagar, it is clearly mentioned that on 20.12.2016 before the executing Court, the judgment-debtor i.e. present appellant was personally present, who expressed that he has given vacant possession of the disputed shop to the decree-holder and thus execution proceedings have been terminated in total satisfaction of the decree concerned. Copy of the above mentioned application was delivered to the learned counsel for the appellant. It is significant to mention here that no any interim order regarding stay of the decree passed by the First Appellate Court was previously passed in this second appeal. In light of the above mentioned application supported by certified copy of the above mentioned order-sheet, it is clear that the relating decree passed by the First Appellate Court has been satisfied by the present appellant and thus this appeal has become infructuous.

In view of the preceding analysis, I find that the First Appellate Court has not committed any error in granting a decree of eviction under Section 12(1)(f) of the M.P. Accommodation Control Act. Moreover, no substantial question of law arises for determination in the instant appeal. Accordingly, the decree granted by the lower Appellate Court is confirmed. In view of the aforesaid, the second appeal fails and is hereby dismissed. However, there shall be no order as to costs.