Madhya Pradesh High Court

Ramesh Harwani vs Anand Kumar Adwani on 17 October, 2022

Author: Dwarka Dhish Bansal

                                  1

          IN THE HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                              BEFORE
              HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                     ON THE 17th OF OCTOBER, 2022

                   SECOND APPEAL No. 1836 of 2022

      Between:-
1.     RAMESH    HARWANI    S/O  LATE    SHRI
       KRIPALDAS HARWANI, AGED ABOUT 70
       YEARS, OCCUPATION: SELF EMPLOYED R/O
       OLD SINDHI COLONY BAIRASIYA ROAD
       BHOPAL DISTRICT BHOPAL (M.P.) (MADHYA
       PRADESH)

                                                    .....APPELLANT
       (BY SHRI AVINASH ZARGAR-ADVOCATE)

       AND

1.     ANAND KUMAR ADWANI S/O LATE SHRI
       MOTIYARAM ADWANI, AGED ABOUT 62
       YEARS, R/O 22 A, RIDGE ROAD IDGAH HILLS
       BHOPAL DISTRICT BHOPAL (M.P.) (MADHYA
       PRADESH)

2.     CHANDRA KUMAR MOTWANI S/O LATE SHRI
       GURMUKHDAS MOTWANI, AGED ABOUT 57
       YEARS, R/O CHANDRA MEDICAL STORES PS
       SHAHJAHANABAD      BHOPAL    DISTRICT
       BHOPAL M.P. (MADHYA PRADESH)
                                                 .....RESPONDENTS


 ...................................................................................................................................................................

       This appeal coming on for admission this day, Court passed the
 following:
                               ORDER

This second appeal has been preferred by defendant 1/tenant challenging the judgment & decree dated 02.07.2022 passed by learned 25th District Judge, Bhopal in Civil Appeal No. 13/2020 reversing the judgment & decree dated 30.11.2019 passed by 5th Civil Judge Class-II, Bhopal in Civil Suit No. 155-A/2015.

2. Learned trial Court dismissed the suit of the plaintiff/respondent 1 filed on the grounds under Section 12(1)(a)(b)(d)&(p) of the M.P. Accommodation Control Act, 1961 (in short "the Act") which in appeal has been decreed by first appellate Court on the grounds under Section 12 (1)(b) &(d) of the Act.

3. In short the facts are that the plaintiff/respondent 1 instituted a suit for eviction of the shop in question on the grounds under S. 12(1) (a)(b)

(d) &(p) of the Act with the allegations that defendant 1 was given the shop on rent vide rent agreement dated 03.02.1987 for a period of 11 months on rent for Rs. 350/- per month, which later on was increased to Rs. 605/- per month. After death of father Motiyaram in the year 1990, the defendant 1 has become tenant of plaintiff in the shop, in which the defendant 1 was carrying out the business in the name and style "Smriti Photo Studio" but for last five years he has closed this business and is not doing anything in the shop, therefore, the plaintiff is entitled for decree under S. 12(1)(d) of Act. It is also alleged that the defendant 1 has sublet the shop to the defendant 2 without permission of the plaintiff, which is being used by defendant 2 for godown of the medicines, as such, the plaintiff is entitled for decree under Section 12(1)(b) of the Act. As the defendant 2 is carrying out the business of medicines even without any license, therefore, he being involved in the illegal activities, the plaintiff is also entitled for decree under S. 12(1(p) of the Act. It is also alleged that despite making several requests, the defendant 1 has not paid the

arrears of rent, therefore, the plaintiff is entitled for decree under S. 12(1)

(a) of the Act. With the aforesaid allegations, the suit was filed.

4. The defendant 1 appeared and filed written statement denying the plaint allegations and contended that the defendant 2 is brother-in-law (Jija) of the defendant 1 and as the disputed /tenanted shop is situated in front of the shop of the defendant 2, therefore, in absence of defendant 1, he takes care of the tenanted shop. It is contended that plaintiff wants to get evicted the defendant 1 by illegal means, whereas the defendant 1 is paying the rent regularly and the suit has been filed on false set of facts. On inter alia contentions, the suit was prayed to be dismissed.

5. The defendant 2 despite service of summons did not appear and was proceeded ex-parte but during the suit he appeared and filed written statement denying the plaint allegations and contended that he has not received the shop from the defendant 1 and he is not using the shop, as godown of the medicines. On inter alia contentions, the suit was prayed to be dismissed.

6. On the basis of pleadings of the parties, learned trial Court framed 6 issues and recorded evidence of the parties and dismissed the suit on all the grounds vide judgment & decree 30.11.2019. Upon appeal filed by the plaintiff/respondent 1, learned first appellate Court has vide its judgment & decree dated 02.07.2022, decreed the suit on the grounds under S. 12(1)(b)&(d) of the Act, however, refused to pass decree of eviction on the grounds under S.12(1)(a) &(p) of the Act.

7. Learned counsel for the appellant/defendant 1 submits that the learned first appellate Court has erred in reversing the judgment & decree of trial Court and in decreeing the suit on the grounds under S. 12(1)(b) &

(d) of the Act. He submits that plaintiff has completely failed to establish

the grounds of eviction under S.12(1)(b)& (d) of the Act, but on the basis of weakness of the case of the defendant 1, learned first appellate Court has decreed the suit, as such has committed illegality in decreeing the suit. Accordingly, he prays for admission of the appeal.

8. Heard learned counsel for the appellant/defendant 1 and perused the record.

9. In support of the allegations with regard to availability of ground under S.12(1)(b) of the Act, the plaintiff has adduced oral as well as documentary evidence. By placing on record the complaint (Ex. P/1) filed against Santosh Motwani; statement of Ramesh Harwani recorded in complaint case RT No.101/2016 (Ex. P/2); and panchnama prepared in the complaint case RT No.101/16, the plaintiff has established that several medicines were seized from the tenanted shop, which belonged to the defendant 2/Chandra Kumar Motwani. Even from paragraphs 8,9 and 13 of the statement of defendant-Ramesh Harwani, this fact is an admitted fact.

10. In what capacity, the defendant 2-Chandra Kumar Motwani was using the tenanted shop, has not even been alleged by defendant 1 and no explanation has been given with regard to seizure of the medicines from the tenanted shop. Despite there being close relations in between them, the defendant 2 has not been produced by the defendant 1 in the witness box, who could explain the reality of the seizure of the medicines from the disputed/tenanted shop belonging to him.

11. As from the evidence, it is clearly established that defendant 2 has used the disputed shop and was in possession, hence in my considered opinion, in absence of any explanation given by the defendant 2, the learned first appellate Court has not committed any illegality in granting decree on the ground of sub-tenancy under section 12(1)(b) of the Act.

12. As regards decree on the ground under Section 12(1)(d) of the Act is concerned, the defendant 1 himself has admitted that he is not using the shop for last four months just preceding the date of filing of the suit however, in support of the contention of carrying out the business of photo studio in the shop, the defendant 1 has not produced any document, even the electricity bill, which is necessary for carrying out the business of photo studio in the tenanted shop, has not been produced. However, later on, he said that he has closed the business of photo studio and started business of Smriti Tiles, but with regard to this new business also, the defendant 1 has not produced any document before the Court below.

13. In the aforesaid circumstances, learned first appellate Court after having considered entire oral and documentary evidence came to conclusion that the plaintiff has been able to establish the grounds of eviction under S. 12(1)(b) & (d) of the Act. Upon perusal of the entire record, in my considered opinion, there is no illegality in the judgment & decree passed by learned first appellate Court on the grounds under S. 12(1)(b) &(d) of the Act.

14. At this stage, learned counsel for the appellant prays for granting some reasonable time to vacate the suit premises/tenanted shop. Upon due consideration, six months time is granted to vacate the tenanted shop/premises on the following conditions:-

(i) The appellant/defendant 1 shall vacate the suit premises on or before 17.04.2023.

(ii) The appellant/defendant 1 shall regularly pay rent to the respondent 1/plaintiff and shall also clear all the dues, if any, including the costs of the litigation, if any, imposed by learned Court below.

(iii) The appellant/defendant 1 shall not part with the suit property to anybody and shall not change nature of the suit premises.

(iv) The appellant/defendant 1 shall furnish an undertaking with regard to the aforesaid conditions within a period of 3 weeks from today before learned Court below/Executing Court.

(v) If the defendant 1/appellant fails to comply with, any of the aforesaid conditions, the respondent 1/plaintiff shall be free to execute the decree forthwith.

(vi) If after filing of the undertaking, the defendant 1/appellant does not vacate the premises on or before 17.04.2023 and creates any obstruction, he shall be liable for contempt of order of this Court.