Madhya Pradesh High Court
Manakchand Ruthia vs Kamal Jain on 29 March, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 29 th OF MARCH, 2023
SECOND APPEAL No. 1113 of 2005
BETWEEN:-
MANAKCHAND RUTHIA (DEAD) THR. LRs.
A. SMT. SHAKUNTALA DEVI W/O LATE SHRI MANAK
CHAND RUTHIA, AGED ABOUT 72 YEARS , R/O BADA
BAZAAR, CHHAWNI, SEHORE, M.P.
B. VINOD KUMAR RUTHIA (DEAD) THR. LRs
B1 SMT. POONAM RUTHIA W/O LATE VINOD KUMAR
RUTHIA, AGED ABOUT 55 YEARS, R/O. BADA BAZAAR,
SEHORE M.P.
B2 KAPIL AGARWAL S/O LATE VINOD KUMAR
RUTHIA, AGED ABOUT 31 YEARS, R/O BADA BAZAAR,
SEHORE M.P.
C. VINAY RUTHIA S/O LATE SHRI MANAK CHAND
RUTHIA AGED ABOUT 52 YEARS, R/O BADA BAZAAR,
CHHAWNI, SEHORE, M.P.
D. VIVEK RUTHIA S/O LATE SHRI MANAK CHAND
RUTHIA AGED ABOUT 50 YEARS, , R/O BADA BAZAAR,
CHHAWNI, SEHORE, M.P.
.....APPELLANTS
(BY SHRI SIDDHARTH GULATEE-ADVOCATE)
AND
KAMAL JAIN (DEAD) THR. LRs
A. SMT. REETA W/O LATE KAMAL JAIN, AGED 55
YEARS, R/O OPPOSITE HANUMAN MANDIR HOSPITAL
ROAD, NAMAK CHOURAHA, SEHORE M.P.
B. NITESH JAIN S/O LATE KAMAL JAIN, AGED 30
YEARS, R/O OPPOSITE HANUMAN MANDIR HOSPITAL
ROAD, NAMAK CHOURAHA, SEHORE M.P.
C. BHAVISHYA JAIN S /O LATE KAMAL JAIN, AGED 27
YEARS, R/O OPPOSITE HANUMAN MANDIR HOSPITAL
ROAD, NAMAK CHOURAHA, SEHORE M.P.
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 3/31/2023
10:13:01 AM
2
.....RESPONDENTS
(BY SHRI RAMANUJ CHOUBEY-ADVOCATE AND SHRI DINESH KUMAR
UPADHYAY-ADVOCATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
JUDGMENT
This second appeal has been preferred by the
appellants/plaintiffs/landlord challenging the judgment and decree dated
26.02.2005 passed by First Additional District Judge, Sehore in civil appeal
no.28-A/2005 reversing the judgment and decree dated 09.12.2004 passed by
Second Civil Judge Class-I, Sehore in civil suit No.5-A/2003, whereby learned
trial court decreed the suit for eviction of the residential house on the ground
under Section 12(1)(a) of the M.P. Accommodation Control Act, 1961 (in short
'the Act'), which has been dismissed by the first appellate Court.
2. This second appeal was admitted for final hearing on 18.03.2009
on the following substantial question of law :
"Whether the learned First Appellate Court erred in substantial error
of law in dismissing the suit of plaintiff by ignoring the material piece of
evidence that defendant was having knowledge of notice dated 23.06.2003
?"
3. Learned counsel for the appellants/plaintiffs/landlord submits that
learned first appellate court has erred in dismissing the suit for eviction by
reversing the judgment and decree of eviction passed by learned trial court
because despite service of summons for date 23.06.2003 the defendant did not
appear and deposit the rent within a period of one month, as mandated under
Section 13(1) of the Act. He submits that taking into consideration the
admissions of DW 1-Kamal Jain made in para 13 of his statement regarding
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 3/31/2023
10:13:01 AM
service of summons for the date 23.06.2003, learned trial court rightly held that
the defendant did not deposit the rent as per Section 13(1) of the Act, but
learned first appellate Court has erred in taking into consideration the date of
service of summons for the date 25.07.2003. However, he concedes that from
the date of service of summons issued for the date 25.07.2003, the defendant
has deposited rent timely, as has been mentioned by learned first appellate
Court in para 12 of its judgment. With the support of aforesaid, he prays for
allowing the second appeal.
4. Learned counsel appearing for the respondents/tenant supports
the impugned judgment and decree and prays for dismissal of the second
appeal with the submissions that after service of summons of the the plaint, the
tenant deposited the rent in accordance with the law, therefore, learned first
appellate court has rightly dismissed the suit.
5. Heard learned counsel for the parties and perused the record.
6. Record of trial court shows that first summons for service of
defendant issued by the learned trial court, returned unserved with the note that
the addressee was not found on the given address and taking into consideration
the report made on it along with the report of process server made on ordinary
summons, learned trial court vide order dated 23.06.2003 recorded satisfaction
to the effect that the summons was not served on the defendant and ordered
issuance of fresh summons to the defendant for the date 25.07.2003, therefore,
there is no question of any knowledge of notice dated 23.06.2003 to the
defendant. Further there is no cogent evidence available on record to show
knowledge to the defendant of notice dated 23.06.2003.
7. In view of the aforesaid factual position, the findings recorded by
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 3/31/2023
10:13:01 AM
learned first appellate court regarding deposit of rent by defendant in
accordance with Section 13(1) of the Act do not appear to be illegal or
perverse, therefore, in my considered opinion the substantial question of law
framed by this court on 18.03.2009 does not arise in the present second appeal.
8. Resultantly the second appeal fails and is hereby dismissed.
However, no order as to costs.
9. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
ss
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 3/31/2023
10:13:01 AM
