Madhya Pradesh High Court

Chandan Narayan Kothari vs Smt. Anita Parakh on 20 July, 2022

Author: Deepak Kumar Agarwal

                                                                                01

                                  IN THE HIGH COURT OF MADHYA PRADESH
                                                AT GWALIOR
                                                  BEFORE
                               HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL


                                       SECOND APPEAL No. 535 of 2020
                                     Between:-
                                     CHANDAN NARAYAN KOTHARI S/O SHRI
                                     BODHRAJ     KOTHARI,       AGE-65     YEARS,
                                     OCCUPATION- SHOPKEEPER, SHOP ADDRESS-
                                     KOTHARI MATCHING CENTRE, JAMUNALAL
                                     MARKET,     SARAFA      BAZAR,      LASHKAR
                                     GWALIOR.
                                                               .............APPELLANT


                                     (BY SHRI KAMAL KUMAR JAIN- ADVOCATE)
                                     AND
                           1         SMT. ANITA PARAKH W/O SHRI MANOJ
                                     PARAKH,    AGE   47   YEARS,   OCCUPATION-
                                     SHOPKEEPER, R/O OF 18/21, PREM NIWAS,
                                     JAWAHAR    COLONY,      KAMPU,      LASHKAR,
                                     GWALIOR
                           2         SMT. ARCHANA PARAKH W/O SHRI ARIHANT
                                     PARAKH,    AGE-38     YEARS,   OCCUPATION-
                                     SHOPKEEPER, R/O OF 18/21, PREM NIWAS,
                                     JAWAHAR    COLONY,      KAMPU,      LASHKAR,
Signature Not Verified               GWALIOR
Signed by: MADHU
SOODAN PRASAD
Signing time: 21-07-2022
09:50:21 AM
                                                                                                         02

                                                                              .........RESPONDENTS


                                        (BY SHRI NAVAL KISHORE CHATURVEDI-
                                        ADVOCATE)

                           --------------------------------------------------------------------------------
                                             Reserved on         :      8.7.2022
                                             Delivered on        :      20.7.2022
                           ---------------------------------------------------------------------------------
                                         This appeal coming on for hearing this day, the court
                           passed the following:
                                                          JUDGMENT

Appellant has filed this appeal being aggrieved by the

judgment passed by the Second Additional District Judge, Gwalior,

in Regular Civil Appeal No.22/2019 on 11.12.2019.

2. Brief facts of the case are that respondents filed a civil

suit against appellant for ejectment and getting arrears of rent of

suit property situated at Line No.A, Municipal House No.43/571,

Jamnalal Market, Sarafa Bazar, Lashkar, Gwalior. As per the

respondents, aforesaid suit property is in their ownership and

possession. They rented the aforesaid shop to the appellant on a Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 21-07-2022 09:50:21 AM

rent of Rs.500/- per month and gave possession in which he is

carrying out business in the name of Kothari Matching Center.

Appellant paid rent of the aforesaid shop till 10.3.2013 and

thereafter stopped giving rent of the aforesaid shop despite various

demands, due to which respondents were forced to give registered

notice through their advocate on 26.2.2014 and demanded arrears

of rent within two months along with vacant possession of the suit

shop as plaintiffs are having necessity of the aforesaid shop.

Despite receiving the notice, appellant did not pay arrears of rent,

nor gave vacant possession of the suit shop to the plaintiffs.

Plaintiffs/respondents want to start business of artificial jewellery

for which they are having no other alternative accommodation.

Suit shop is situated in the main market of Gwalior. By filing the

suit, plaintiffs seek arrears of rent, future rent till taking possession

and mesne profit of Rs.4,000/- along with vacant possession of the

suit property.

3. Appellant denied the pleadings of the respondents. He

submitted that plaintiffs are not in need of suit property. They have

Signature Not Verifiednot pleaded as to when tenancy between them took place and they Signed by: MADHU SOODAN PRASAD Signing time: 21-07-2022 09:50:21 AM

filed a frivolous suit.

4. Trial Court framed the issues on the basis of the

pleadings. Both the parties adduced their evidence.

Respondents/plaintiffs adduced evidence of plaintiff No.1-Anita

Parakh, Arihant Parakh and appellant submitted his sole evidence.

After perusing the evidence and documents on record, learned trial

Court decreed the suit of the respondents and passed a decree in

favour of the respondents that appellant will give vacant

possession of the suit shop within a period of two months, pay a

sum of Rs.16,500/- as arrears of rent to the respondents and pay a

sum of Rs.500/- per month as mesne profit from the date of filing

of civil suit till handing over possession of the suit shop along with

interest of 6% per annum. Appellant was further directed to pay a

sum of Rs.12,000/- as compensation to the respondents. A sum of

Rs.1375/- was also awarded as advocate fee. Aggrieved by the

aforesaid judgment and decree, defendant/appellant preferred first

appeal before the appellate Court which affirmed the findings of

the trial Court vide its judgment dated 11.12.2019. Hence, this

Signature Not Verifiedappeal has been filed on the ground that despite relationship of Signed by: MADHU SOODAN PRASAD Signing time: 21-07-2022 09:50:21 AM

landlord- tenant has not been established, learned trial Court and

appellate Court passed a decree against him. Respondents could

not establish need of suit property. Beside this, Court below passed

the judgment and decree against facts and law.

5. Heard learned counsel for the parties and perused the

record.

6. On going through the judgment of learned trial Court,

it is clear that when appellant did not pay arrears of rent, trial

Court has struck off his defence under Section 13(6) of the M.P.

Accommodation Control Act by its order dated 22.6.2018.

7. Appellant in cross-examination has admitted that after

the suit shop was purchased by the respondents, they have not

executed tenancy agreement with him. Gurumukhdas and

Hasanand have not cheated him. He has not deposited any rent

before the trial Court. Gurumukhdas and Hasanand have not given

any written permission for electricity connection. They also never

gave any receipt of rent. But every month, he used to pay rent to

Gurumukhdas and Hasanand. He has also admitted that during

Signature Not Verifiedtenancy he has not purchased the aforesaid suit property. When Signed by: MADHU SOODAN PRASAD Signing time: 21-07-2022 09:50:21 AM

Gurumukhdas and Hasanand died, somebody told him that they

have sold the suit shop to someone. He used to pay rent of the suit

shop to Gurumukhdas and Hasanand and thereafter he has not paid

rent to anyone. He denied his signatures on rent receipts (Ex.P/6,

P/7 and P/8). He also denied his signatures on acknowledgment

Ex.P/5. He also admitted that younger brother of Manoj Parakh,

relative of respondents, came before him to receive rent. On going

through his cross-examination and admission, it is crystal clear that

he is keeping the suit property as a tenant. After death of previous

owners, he has not paid rent to anyone despite he has knowledge

that before death previous owners have sold the suit shop to

someone.

8. Beside admission of appellant, plaintiff No.1-Anita

Parakh has supported the pleadings of the suit by her evidence and

has stated that she along with her sister-in-law Archana Parakh

(plaintiff No.2) has purchased the aforesaid suit shop vide sale-

deed dated 11.11.2011 (Ex.P/1) having registration No.4922-B

dated 3.1.2012. Afterwards their names have been mutated in the

Signature Not Verifiedrecords of Municipal Corporation vide receipt No.2154 dated Signed by: MADHU SOODAN PRASAD Signing time: 21-07-2022 09:50:21 AM

3.9.2012 (Ex.P/3). Earlier appellant was the tenant of previous

owners at the rate of Rs.500/- per month. After the purchase of suit

shop, they became the owner of the suit shop and appellant became

their tenant. They asked the appellant to pay rent to them, but

despite this, he has not paid rent. Thereafter, through advocate they

gave intimation (Ex.P/4) to the appellant mentioning therein that

they have purchased the suit shop and demanded rent. The said

intimation was received by the appellant vide acknowledgment

(Ex.P/5). After receiving the intimation, appellant gave rent from

11.11.2011 to 10.3.2013 for which they issued receipts. Receipt

No.2 dated 4.3.2013, receipt No.3 dated 11.3.2013 and receipt

No.4 dated 21.3.2013 are counterfoils.

9. Appellant has not denied receiving of intimation

(Ex.P/4) in his evidence. Beside this, he has not challenged the

sale-deed executed by previous owners in favour of the

respondents.

10. On going through the sale-deed (Ex.P/1) executed by

Hasanand and Gurumukh Das in favour of the respondents,

Signature Not Verifiedmutation receipt No.2154 dated 3.9.2012 (Ex.P/3) in favour of the Signed by: MADHU SOODAN PRASAD Signing time: 21-07-2022 09:50:21 AM

respondents, intimation (Ex.P/4) about purchase of the suit shop

mentioning therein that from the date of purchase they have

become owner of the suit shop, hence, appellant should pay rent to

them, it is clearly established that after the purchase of the suit

shop respondents became owner of the suit property and they well

in writing informed about the purchase of the suit shop and

demanded rent of the suit shop, despite this, after 10.3.2013

appellant has stopped paying rent to the respondents, due to which,

his defence was struck off under Order 13(6) of the M.P.

Accommodation Control Act.

11. In view of the aforesaid, in the considered opinion of

this Court, learned appellate Court and learned trial Court has not