Hariom Gupta vs Sanjay Kumar Gupta
2022 Latest Caselaw 16903 MP

                                                     1
                 IN         THE      HIGH COURT OF MADHYA PRADESH
                                           AT GWALIOR
                                              BEFORE
                           HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                      ON THE 20 th OF DECEMBER, 2022
                                      SECOND APPEAL No. 1110 of 2022

               BETWEEN:-
               HARIOM GUPTA S/O LATE RAMSWAROOP GUPTA,
               AGED ABOUT 70 YEARS, OCCUPATION: BUSINESS R/O
               CHANDAN BHAVAN SADAR BAZAR MORENA (MADHYA
               PRADESH)

                                                                               .....APPELLANT
               (BY SHRI P.C.CHANDIL- ADVOCATE)

               AND
               1.          SANJAY KUMAR GUPTA S/O DINESH GUPTA,
                           AGED ABOUT 44 YEARS, R/O CHANDAN BHAVAN
                           SADAR BAZAR MORENA (MADHYA PRADESH)

               2.          RAJ KUMAR GUPTA S/O SHRI YOGESH KUMAR
                           GUPTA, AGED ABOUT 34 YEARS, R/O CHANDAN
                           BHAVAN SADAR BAZAR MORENA (MADHYA
                           PRADESH)

                                                                            .....RESPONDENTS
               (BY SHRI N.K.GUPTA-SENIOR ADVOCATE WITH MS. RASHI KUSHWAH-
               ADVOCATE)

                           This appeal coming on for admission this day, th e court passed the
               following:
                                                      ORDER

Appellant/defendant has preferred this appeal being aggrieved by the judgment and decree passed by the Courts below against him.

Brief facts of the case are that respondents are the owners of the Signature Not Verified disputed shop situated at Sadar Bazar, Morena, at ground floor, which was Signed by: MADHU SOODAN PRASAD rented out to appellant at the rate of Rs.70/- per month. Respondents filed a Signing time: 20-12-2022 06:08:37 PM

civil suit for eviction of the aforesaid shop on the ground of arrears of rent and nuisance. During pendency of the civil suit, plaintiffs amended their plaint and pleaded that aforesaid disputed shop is required for bonafide need of one of them, namely Raj Kumar Gupta, and adduced evidence. In reply, appellant/defendant denied the averments of the plaint and made submission that he was regularly paying rent and not creating any nuisance. As far as bonafide need of plaintiff Raj Kumar Gupta is concerned, they got vacant accommodation of another shop which was rented out to one Iqbal. After evidence of both the parties, learned trial Court vide its judgment paras 39, 40 and 42 elaborately discussed the evidence came on record and decreed the suit

of the plaintiffs on the sole ground of bonafide requirement of plaintiff Raj Kumar Gupta. Defendant being aggrieved by the aforesaid judgment and decree, filed first appeal. During pendency of the appeal, defendant filed an application under Order 6 Rule 17 along with application under Order 41 Rule 27 of CPC praying that during pendency of the appeal, respondent got the possession of the shop which was rent out to Iqbal, and therefore, now bonafide requirement of plaintiff Rajkumar Gupta no more exists. Learned first Appellate Court by discussing the evidence came on record in para 11, 33, 35, 36, 39 of the judgment, dismissed the appeal as well as applications under Order 6 Rule 17 & application under Order 41 Rule 27 of CPC.

Appellant preferred this appeal on the ground that learned first appellate Court should have accepted his applications under Order 6 Rule 17 and under Order 41 Rule 27 of CPC. Only after amendment, appeal can be decided. Learned counsel for the appellant relied on decision of the Apex Court in the Signature Not Verified cases of Hasmat Rai and another vs. Raghunath Prasad, (1981) AIR (SC) Signed by: MADHU SOODAN PRASAD Signing time: 20-12-2022 06:08:37 PM 1711 & Deena Nath vs. Pooran Lal, (2001) AIR (SCW) 2534 and the

decision of Indore Bench in the case of Smt. Uma Gupta Vs. Smt. Sushila & another, (1989) AIR (MP) 169.

Learned counsel for the respondents/plaintiff submitted that during trial appellant has stated that respondents got possession of the shop of Iqbal Tailor and rented out the same in July, 2014, but during first appeal he changed his stand and filed an application to amend his written statement on the ground that possession of the aforesaid shop was received by the respondents on 21.9.2017. Learned trial Court vide its judgment para 42 has elaborated discussed this aspect and came to the conclusion that it is the choice of the landlord to decide in which accommodation he wants to start his business. Tenant cannot force him to start his business in a particular shop. The appellate Court also vide para 36, 39 and 40 of its judgment has elaborately discussed the aforesaid facts and dismissed the appeal. Learned counsel for the respondents in support of his case relied on the decision of the Apex Court in the case of Damodar Lal vs. Sohan Devi & others, 2016 AIR (SC) 262 and the decision of Coordinate Bench of this Court in the case of Prem Narain v. State of M.P. & Another, 2019 JLJ 631.

Heard learned counsel for the parties and perused the record. In second appeal under Section 100 of CPC, the scope of exercise of the jurisdiction by the High Court is limited to the substantial question of law.

Substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of parties before the Court. Existence of a substantial question of law is sine-qua non for the exercise of jurisdiction under the Signature Not Verified Signed by: MADHU SOODAN PRASAD provisions of Section 100 of CPC. The second appeal does not lie on the Signing time: 20-12-2022 06:08:37 PM

ground of erroneous findings of facts based on appreciation of the relevant evidence.

Further, the Hon'ble Apex Court in Karnataka Board of Wakf Vs. Anjuman-EIsmail Madris-un-Niswan, (AIR 1999 SC 3067) has observed that the High Court should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts.

The decisions so relied on by learned counsel for the appellant being distinguishable on facts are not helpful to the appellant in the present case.

There is concurrent finding of fact in favour of the plaintiffs. Looking to the aforesaid facts & circumstances of the case, this Court is of the considered opinion that the Courts below have not committed any illegality in decreeing the suit of the plaintiffs on the ground of bonafide need. This second appeal sans merit and is hereby dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE ms/-

Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 20-12-2022 06:08:37 PM