Taran Taran Jain Chaityalaya ... vs Dr.Ajay Prakash Dubey & Ors.
2022 Latest Caselaw 203 MP

                                                                   1                                  SA-313-1997
                                       The High Court Of Madhya Pradesh
                                                 SA No. 313 of 1997
                                 (TARAN TARAN JAIN CHAITYALAYA SAMITI Vs DR.AJAY PRAKASH DUBEY & ORS. AND OTHERS)

                                Jabalpur, Dated : 05-01-2022
                                     Shri Sourabh Singh Thakur, learned counsel for the

                                appellant.
                                     This second appeal under Section 100 of the Code of
                                Civil Procedure, 1908 was admitted by a Coordinate Bench of
                                this Court vide order dated 21.2.2013 on the following

                                substantial questions of law:-

                                           "(1) Whether the suit filed by the respondents

against the appellant was maintainable in the form and in the manner in which it was filed?

(2) Whether in the facts and circumstances of the case, the conclusion recorded by the Court below is justified in law?"

Brief facts leading to filing of the present appeal are that respondent No.1 Ajay Prakash Dubey & others had filed a suit for specific performance of contract before the learned 4th Civil Judge Class-II Bhopal, which was registered as R.C.S No.125A/1991. In the said suit, it is alleged that at Mangalwara Bhopal, there is a temple known as Taran Taran Jain Chaityalaya (Mandir) in which there is ground-floor shop alongwith 2 Kothas of 24X20 admeasuring 480 square feet and the respondent No.1/plaintiff is a tenant therein since Signature Not Verified SAN 1981. Earlier rent of that suit premises was Rs.400/- per month Digitally signed by AMIT JAIN Date: 2022.01.12 19:03:14 IST 2 SA-313-1997

and later on it was enhanced to Rs.450/- per month. From this suit premises, the respondent No.1/plaintiff carries out his medical profession.

The defendants' representatives had approached the

plaintiff asking him to vacate the suit premises with a view to carry out renewal/construction of the suit premises including the temple and they had agreed that on completion of said construction within six months, they shall handover a shop admeasuring 17X20 totaling 340 square feet on rent to the respondent No.1/plaintiff. Respondent No./1plaintiff being a practical and religious person admitted the proposal of defendants and vacated the suit premises on 2.10.1990. It is alleged that the temple was reconstructed upto the height of 4 stories and in terms of the agreement dated 2.10.1990, the defendants were liable to reinstate him as a tenant but when they failed to reinstate him as a tenant and illegally demanded premium of Rs.1,50,000/- for restoration of possession, the suit for specific performance of contract was filed by the plaintiff. The aforesaid suit was decreed by the Trial Court vide judgment & decree dated 31.10.1995. Regular Civil Appeal No.8A/1997 was filed against the said judgment & decree dated 31.10.1995 and it was dismissed by the learned 7th Additional District Judge, Bhopal vide judgment & decree dated 25.1.1997. Against these concurrent findings of fact, the Signature Not Verified SAN appellant No.1/defendant has filed Second Appeal, which has Digitally signed by AMIT JAIN Date: 2022.01.12 19:03:14 IST 3 SA-313-1997 been admitted on 21.2.2013 on the aforesaid substantial questions of law.

Learned counsel for the appellant submits that this second appeal has been filed on the ground that the learned Courts below have failed to appreciate that the present appellant was not a party to the agreement dated 2.10.1990. Since he is not a party to the agreement to redeliver the possession after reconstruction, the suit could not have been decreed by the learned Trial Court.

On a perusal of the agreement Exhibit P/1, it reveals that it was executed between the plaintiff and M/s.Nagrani Traders on one hand whereas on the other hand the present appellant was represented through its President Shri Babulal Jain S/o.Shri Shobharam Jain, Shri Vijay Prakash S/o.Shri Babulal "Kamal" Secretary of Taran Taran Chaityalaya Samiti, Bhopal, Shri Chhotelal S/o.Shri Shobharam Jain, Shri B.L.Jain S/o.Shri Durga Prasad Jain, Shri Shreyamal Jain S/o.Shri Jagannath Prasad Jain and they all were party to the suit.

Issues were framed on 25.3.1992 and at that point of time, no objection was taken that the appellant was not a party to the agreement or the persons mentioned above, namely, Shri Babulal Jain & Vijay Prakash etc were not authorized to enter into an agreement on behalf of the appellant. Infact in the reply Exhibit P/5 furnished on behalf of the present Signature Not Verified SAN appellant, no objection was taken as to the authority of the Digitally signed by AMIT JAIN Date: 2022.01.12 19:03:14 IST 4 SA-313-1997 persons, who had allegedly executed agreement Exhibit P/1 but on the contrary raised other grounds like quantum of rent & area of shop etc and did not raise any defence of agreement being executed by incompetent authority. In cross- examination, S.K.Jain (DW.1) admitted that he is not a post bearer in the Mandir Samiti. He further admitted that he was appointed on 8.8.1991 and he had no information about any transaction/proceedings carried out prior to 8.8.1991. It is evident that S.K.Jain (DW.1) having admitted in the cross- examination that he had no knowledge about transaction of the Mandir Samiti prior to 8.8.1991 was not an appropriate witness to dispute the agreement Exhibit P/1 dated 2.10.1990.

Thus, the finding in regard to execution of agreement could not be disputed by the defendants by examining any relevant witness of agreement Exhibit P/1. They did not examine any of the parties to the agreement so as to dispute the agreement nor produced any material evidence to demonstrate that the author of agreement was not authorized on behalf of the Mandir Samiti to execute that agreement.

In absence of any evidence to this effect, the first substantial question of law needs to be answered in the following term that the suit filed by the plaintiff against the defendant was maintainable in the form and in the manner in which it was filed. Similarly, the evidence which has come on

Signature Not Verified SAN record as was led by the plaintiff exhibiting the agreement Digitally signed by AMIT JAIN Date: 2022.01.12 19:03:14 IST 5 SA-313-1997 Exhibit P/1 and then also demonstrating from record that the plea of appellant or their authorized representatives not entering into agreement was not taken by them in the first place even second substantial question of law needs to be answered in the term that the conclusion recorded by the Courts below are justified in law and duly supported by documentary evidence available on record, therefore, there is no error apparent in the impugned judgments & decrees passed by the Courts below in this second appeal regarding concurrent findings of fact proving any of the proposed substantial questions of law.

Accordingly, this second appeal fails and is dismissed.

(VIVEK AGARWAL) JUDGE

amit

Signature Not Verified SAN

Digitally signed by AMIT JAIN Date: 2022.01.12 19:03:14 IST