Kishanlal vs Santosh Jain
2022 Latest Caselaw 7116 MP

                                     1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                   BEFORE
                      HON'BLE SMT. JUSTICE SUNITA YADAV
                             ON THE 11th OF MAY, 2022

                      MISC. PETITION No. 3160 of 2018

          Between:-
          KISHANLAL S/O SHRI MANGILAL NAMDEV ,
          AGED   ABOUT    73  YEARS, OCCUPATION:
          SHOPKEEPER LALAJI KA BADA (MADHYA
          PRADESH)

                                                                   .....PETITIONER
          (BY SHRI ROHIT BANSAL-ADVOCATE)

          AND

          SANTOSH JAIN S/O LATE SHRI MISHRILAL JI
          JAIN , AGED ABOUT 46 YEARS, OCCUPATION:
          BUSINESS NEAR JAIN MANDIR, HANUMAN
          GALI, GUNA (MADHYA PRADESH)

                                                                 .....RESPONDENT
          (BY SHRI ANKUR MAHESHWARI-ADVOCATE)

        Th is petition coming on for hearing this day, the court passed the
following:
                                      ORDER

The present petition under Article 227 of the Constitution of India is filed

challenging the order dated 11.05.2018 passed in COS No.12-A/2018 (253- A/12) by Fifth Civil Judge, Class-I, Guna, whereby learned trial Court dismissed the application filed by the petitioner/defendant under Order 13 Rule 10 of CPC for summoning the record of Civil Suit No.50-A/1996 decided on 02.10.1996 and mutation case No.75/2003/07/01.

The brief facts for disposal of the case are that plaintiff/respondent has instituted a civil suit for eviction and arrears of rent under Section 12(1)(b) & (f)

of the M.P. Accommodation Control Act, 1961. As per the allegation of the plaint, the defendant who is tenant in the disputed shop is not doing any business but has sublet the shop to his sons namely Lalit Namdev and Sunil Namdev and there is no other alternative accommodation available with the plaintiff. Defendant has filed written statement denying the plaint allegations contending that the defendant himself is doing business in the tenanted shop and has not sublet to his sons. It was further further pleaded that the plaintiff is not in bonafide need of the shop for the business of artificial jewellery for his wife. On interalia contentions the suit was prayed to be dismissed. During the course of trial, the defendant filed an application under Order 13 Rule 10 of

CPC which was dismissed by the impugned order.

Learned counsel for the petitioner argued that the impugned order is perverse and against the settled principle of law. He has further argued that according to the plea taken in the written statement and in the light of the documents, defendant is cross-examining but the plaintiff is denying each and everything. He has further argued that the plaintiff has denied certain document in para 27 & 28 of his statement to prove the fact that the plaintiff has no bonafide requirement of the disputed premises and to prove that the plaintiff has malafidely filed this case, despite having suitable accommodation for the purpose of business of artificial jewellery for his wife. Therefore, records as mentioned above deserves to be summoned necessarily.

For deciding the application, provision of Order 13 Rule 10 of CPC are relevant, which reads as under :

"10. Court may sent for papers from its own records or from other Courts.

(1) The Court may of its own motion, and may in

its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same. (2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay of expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice. (3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit."

In the present suit, the plaintiff has claimed that the disputed premises is required bonafidely for supporting the business of artificial jewellery for his wife and he does not have any alternative accommodation for the same purpose. The petitioner/plaintiff filed the application (Annexure P-5) under Order 13 Rule 10 of CPC supported by his affidavit in which he has specifically mentioned that why the records mentioned in the application are required. Since the question of bonafide requirement of the plaintiff along with the availability of alternate accommodation is involved in this case, therefore the records which show the

alleged availability of alternate accommodation are found to be relevant to decide the matter judiciously.

Learned counsel for the respondent relied on the judgment of Supreme Court in the case of Bhupinder Singh Bawa Vs. Asha Devi passed in Civil Appeal No.9941/2014 and submitted that it is perfectly upon to the landlord to choose a more suitable premises for carrying on the business and therefore the

records as mentioned above are not required to be called. However, the above argument is not acceptable as it is for the defendant/tenant to first prove that alternative accommodation is available for the plaintiff/landlord for his requirement then only the question arises to chose the more suitable premises amongst them.

In view of the above, the impugned order by which the learned trial Court has dismissed the application is found to be perverse or against the settled principle of law.

Consequently, the impugned order is hereby set aside and the application filed under Order 13 Rule 10 of CPC by petitioner/defendant is allowed.

(SUNITA YADAV) JUDGE bj/-

BARKHA SHARMA 2022.05.1 4 10:18:06 +05'30'