Akram Khan vs Aatif Rasheed
2022 Latest Caselaw 2343 MP

                                     1



   IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                                 BEFORE
                HON'BLE SHRI JUSTICE PRANAY VERMA



                  SECOND APPEAL No. 1829 of 2021

  Between:-
  AKRAM KHAN S/O ABDUL LATIF,
  AGED ABOUT 44 YEARS,
  OCCUPATION: BUSINESS 248,
  NYAPURA, DISTT. INDORE (MADHYA PRADESH)
                                                           .....APPELLANT
  (BY SHRI VISHAL BAHETI, ADVOCATE)

  AND

   AATIF RASHEED S/O ABDUL RASEED,
   AGED ABOUT 45 YEARS,
1.
   OCCUPATION: ADVOCATE 22,
   TIJORI GALI, SIYAGANJ, INDORE (MADHYA PRADESH)
   ATEEF S/O BABU MOHAMMAD KHAN,
   AGED ABOUT 43 YEARS,
2.
   OCCUPATION: BUSINESS 248,
   NYAPURA, DISTT. INDORE (MADHYA PRADESH)
                                                        .....RESPONDENTS

(BY SHRI ARPIT KUMAR JAIN, ADVOCATE FOR CAVEATOR)

This appeal coming on for admission this day, the court passed the

following:

(Passed on ----02-2022)

01. This appeal has been preferred by the appellant/objector

against the judgment and decree dated 07-12-2021 passed in Civil

Appeal no. 30/2021 by the 20th Additional District Judge, Indore

affirming the judgment and decree dated 08-07-2021 passed in MJC

No. 174/2018 by the 11th Civil Judge, Senior Division, District

Indore whereby his application under order 21 Rule 58, Order 21

Rule 97 read with Section 151 of the C.P.C had been dismissed.

02. As per the appellant he is a tenant in the suit premises since

the year 2004 and has regularly being paying the rent to respondent

No.1 Aatif Rasheed S/o Abdul Raseed. Respondent No. 1 instituted

a Civil Suit on 19-01-2016 before the trial Court for eviction of

Ateef S/o Babu Mohammad Khan, (respondent No. 2) from the suit

premises in which an application was filed on 23-04-2016 under

Order 23 Rule 3 of the CPC for recording of compromise between

them. The said compromise was wholly collusive and was

preferred without disclosing the true facts. On the basis of the said

compromise the claim of respondent No. 1 was decreed by the 'Lok

Adalat' in which respondent No.2 admitted that the suit premises

have been illegally let out him in favour of the present appellant.

Since, the appellant is tenant of respondent No.1 in the suit

premises and a collusive decree has been obtained by respondent

No.1, the same is not executable against him and he is not liable for

delivery of possession to respondent No.1.

03. The respondent No.1 contested the application by filing his

reply submitting that appellant is not his tenant and no rent has ever

been paid by him. The application has been filed by the appellant in

collusion with respondent No.2 by preparing forged documents

only for the purpose of obstructing execution of decree.

Compromise decree passed by the trial Court is perfectly just and

legal and cannot be said to be collusive in any manner.

04. The trial court dismissed the application preferred by the

appellant by holding that he has not been able to prove that he is a

tenant of respondent no.1 in the suit premises and has been paying

rent to him since 2004 and that he has also not proved that the

compromise decree dated 23-04-2006 passed in Civil suit between

the present respondents is collusive. The said decree has been

affirmed by the Lower Appellate Court in appeal preferred by

appellant against it.

05. Learned counsel for the appellant submits that the Courts

below have grossly erred in holding that the compromise decree

dated 23.04.2016 passed in the Civil Suit is not collusive. The suit

was filed on 19.01.2016 and the compromise decree was passed on

23.04.2016 itself. Therein, respondent no.2 without any authority

admitted that the present appellant is sub-tenant in the suit

premises. The compromise is merely an agreement and not a

contract and was not binding upon the Court which ought to have

examined its legality prior to passing the decree. Since, appellant

was stated to be a sub-tenant of respondent No.2, the proceedings

ought to have been instituted before the Rent Controlling Authority

in view of provisions of Sections 15 and 16 of the M.P.

Accommodation Control Act 1961. The respondent No.1 has

admitted in his cross examination that appellant is his tenant in the

suit premises and has been receiving rent from his. By order dated

02.07.2021 the trial Court had allowed an application filed by the

appellant for taking additional documents on record but the matter

was not fixed for recording of evidence of the appellant and straight

away the final judgment was passed. This ground was raised before

the lower appellate Court but has not been considered in proper

prospective. Though issue No.2 was framed by the lower appellate

Court as regards compromise decree being collusive, but the same

has not been decided. The documents available on record

unmistakably show his status of a tenant which evidence along with

oral evidence has wholly been misconstrued.

06. I have considered submission of the learned counsel for the

appellant. Section 15 and 16 of M.P. Accommodation Control Act,

1961 are as under :-

"15. Notice of creation and termination of sub-tenancy. - (1) Where, after the commencement of this Act, any accommodation is sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the accommodation is sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub- letting and notify the termination of such sub-tenancy within one month of such termination.

(2) Where, before the commencement of this Act, any accommodation has been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub-tenant to whom the accommodation has been sub-let may, in the prescribed

manner, give notice to the landlord of the creation of the sub- tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination.

(3) Where, in any case mentioned in sub-Section (2), the landlord contests that the accommodation was not lawfully sub- let and an application is made to the Rent Controlling Authority in this behalf, either by the landlord or by the sub-tenant, within two months of the date of the receipt of the notice of sub-letting by the landlord or the issue of the notice by the tenant or the sub-tenant, as the case may be, the Rent Controlling Authority shall decide the dispute.

16. Sub-tenant to be tenant in certain cases. - (1) Where an order for eviction in respect of any accommodation is made under Section 12 against a tenant but not against a sub-tenant referred to in Section 15 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the accommodation in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.

(2) Where, before the commencement of this Act, the interest of a tenant in respect of any accommodation has been determined without determining the interest of any sub-tenant to whom the accommodation either in whole or in part had been lawfully sub- let, the sub-tenant shall, with effect from the date of the commencement of this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued. "

07. A bare perusal of the aforesaid provisions shows that they are

applicable only when sub-tenancy is created by the sub-tenant

legally and in accordance with these provisions. The same are not

applicable when such-tenancy is created in violation of the legal

provisions and instead affords a ground for the landlord to seek

eviction of a tenant. When the sub-tenancy is created legally, when

proceedings before the Rent Controlling Authority as contemplated

therein are to be taken. Thus, the contention of learned counsel for

the appellant that the suit filed by respondent No.1 was not

maintainable before the Civil Court and ought to have been

instituted before the rent Controlling Authority is misconceived.

The appellant was alleged to be a sub-tenant in the suit premises

without written consent of respondent No.1 and without issuance of

any notice to him in this regard hence he had no right to be

impleaded as a party to the eviction suit merely on that ground. The

suit instituted by respondent No.1 without impleadment of present

appellant cannot be said to be illegal in any manner.

08. On filing of application by the respondents before the trial

Court for recording of compromise, the same was verified by the

'Lok-Adalat' and after due verification was found to be legal and

thereafter only a compromise decree in terms thereof was passed.

Even though the said compromise was an agreement to begin with

between the respondents, but since the same was accepted by the

Court and a decree in terms thereof was passed, the same acquired

legally enforceable status. The decree in the facts and

circumstances of the case cannot be said to be collusive in any

manner since the same was passed upon subjective satisfaction of

the Court of the same being legal. The trial Court had upon a

detailed marshalling of the material on record categorically held

that the appellant has failed to prove that the decree in question is

collusive. The lower appellate Court has recorded a finding that the

appellant has failed to prove that he is a tenant of respondent No.1

in the suit premises, hence no prejudice is caused to him even if the

question of decree being collusive has not specifically been

adverted to and decided the lower Appellate Court.

09. The application under Order 7 Rule 14 of CPC which was

allowed by trial Court by order dated 02-07-2021 was for bringing

on record certain public documents as per the stand of appellant

himself. Those documents were not required to be proved being

public and admitted documents hence the trial court did not commit

any error in not granting specific opportunity to the appellant to

record evidence upon the said application being allowed. In any

case, the appellant has not shown that any such opportunity was

prayed by him to be granted.

10. Both the Courts below have upon a detailed and careful

appreciation of the entire oral as well as the documentary evidence

brought by both the parties on record, arrived at a categoric finding

that the appellant has failed to prove that he is a tenant of

respondent No.1 in the suit premises since 2004. The rent receipts

have been taken into consideration as well as the electricity bills

and all the other documents brought on record by the appellant.

This Court has carefully gone through those documents and finds

that they are wholly insufficient to arrive at any finding to the effect

that the appellant has been a tenant of respondent No.1 in the suit

premises.

11. The Courts below have not committed any error of law in

holding that relationship of landlord and tenant between appellant

and respondent No.1 has not been proved by him. There is no

reason whatsoever to interfere with the said finding. As the

appellant has failed to prove that he is a tenant of respondent No.1,

the application filed by him has rightly been dismissed by both the

Courts below.

12. Thus, in view of the foregoing discussion, I do not find

involvement of any substantial question of law in this appeal which

is accordingly dismissed in limine.

Certified copy as per rules.

(PRANAY VERMA) JUDGE

rashmi

RASHMI PRASHANT 2022.02.24 15:01:29 +05'30'