M.P. Rajya Coop. Marketing Fed. ... vs Shashi Prabha (Deceased) & Ors.
2022 Latest Caselaw 16664 MP

1                                                             F.A. No. 361 of 1997

      IN THE HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                             BEFORE
      HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                 ON THE 15th OF DECEMBER, 2022

                  FIRST APPEAL No. 361 of 1997

     BETWEEN:-
1.    M.P. RAJYA COOP. MARKETING FEDERATION
      LTD. BHOPAL (MADHYA PRADESH)

                                                   .....APPELLANT
      (SHRI ABHIJIT BHOMIK, ADVOCATE)


      AND

1.    SMT. SHASHIPRABHA (SINCE DECEASED)

2.    ONKAR PRASAD AGRAWAL, AGED 40 YEARS,
      S/O LATE SHRI RAMLALJI AGRAWAL, R/O
      KHITOLA BAZAR, SIHORA, DISTT. JABALPUR

3.    DINESH KUMAR AGRAWAL, AGED 40 YEARS,
      S/O LATE SHRI KISHORILAL AGRAWAL,
      DEEPASHIKHA,  NEAR  JAIL BUILDING,
      SHAHDOL, M.P.
                                                .....RESPONDENTS

      (NONE)


...................................................................................................................................................................

      This appeal coming on for final hearing this day, Court passed
the following:
 2                                                                   F.A. No. 361 of 1997

                              JUDGMENT

This first appeal has been preferred by the plaintiff challenging the judgment & decree dated 11.04.1997 passed by learned Second Additional District Judge, Shahdol in Civil Suit No. 4-B/89 whereby suit filed by the appellant-plaintiff for refund of an amount of Rs. 1,20,354.03 has been dismissed.

2. In short the facts are that the plaintiff instituted the suit for recovery of the aforesaid amount with the allegations that the plaintiff took godowns of the defendants on rent vide registered agreements (Ex. P/10-c and P/11-c) but mistakenly excess rent was paid to the defendants despite vacating the godown(s) in question by the plaintiff. Accordingly, the plaintiff instituted the suit for recovery of the excess amount of Rs. 80,571/- plus interest and in total amount of Rs. 1,20,354.03 was claimed.

3. The defendants appeared and filed written statement denying the plaint allegations and contended that the godown(s) in question was/were not vacated by the plaintiff on 13.08.1982 and infact it was vacated on 20.04.1987. The godown of 9 rooms was vacated on 30.06.1985. However, only an amount for Rs. 838.78 was paid in excess to the actual amount, which the defendants are ready to refund and the plaintiff has instituted the suit on false set of facts. With these contentions the suit was prayed to be dismissed.

4. Learned trial Court on the basis of pleadings of the parties, framed as many as eight issues and recorded evidence and after due consideration and appreciation of the evidence held that the plaintiff has failed to prove the factum of payment of excess rent as well as the

factum of vacation of godowns in question.Accordingly, the suit was dismissed vide judgement and decree dtd. 11.04.1997.

5. Learned counsel for the appellant submits that learned trial Court has failed to consider the documentary evidence Ex. P/10-c and Ex. P/11-c, notice dated 24.04.1987 (Ex. D/4) as well as oral evidence whereby it was proved by the plaintiff that the godowns in question were vacated before the fixed period and despite vacation of the godowns, the rent in excess was paid to the defendants. As such, the plaintiff's suit ought to have been decreed.

6. Heard learned counsel for the appellant and perused the record.

7. In this appeal following point for determination is arising for consideration of this Court.

"Whether without considering oral evidence available with regard to intimation of vacation of suit godowns, learned trial Court has erred in dismissing the suit ?"

8. From bare perusal of the documentary evidence (Ex. P/10-c and P/11-c), which are the agreements of tenancy, it is clear that unless the written intimation is given by the plaintiff to the defendants for vacating the godowns, the plaintiff is liable to pay the rent of the godowns.

9. In the present case except the written intimation dated 24.04.1987 (Ex. D/4) the plaintiff has failed to produce any other written notice regarding vacation of the suit godown(s). This notice dated 24.04.1987 (Ex. D/4) also does not show as to which one out of

four godowns was vacated by the plaintiff before the fixed period of tenancy.

10. In addition to the aforesaid, the learned counsel for the plaintiff tried to substantiate his case on the basis of oral evidence regarding vacation of the suit godown(s) but in my considered opinion, in presence of written agreement of tenancy (Ex. P/10-c and P/11-c) containing requirement of written intimation, oral evidence cannot be considered regarding intimation of vacation of the godowns.

11. As the plaintiff has failed to prove the factum of vacation of godowns by producing written intimation letters so also the factum of payment of excessive rent, therefore, in my considered opinion learned trial Court has not committed any error in dismissing the suit. Resultantly, the first appeal fails and is hereby dismissed.

12. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2022.12.16 16:15:37 +05'30'