Madhya Pradesh High Court

Umesh vs Vasudeo on 31 March, 2023

Author: Dwarka Dhish Bansal

1 S.A. No.1112 of 2007

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

ON THE 31st OF MARCH, 2023

SECOND APPEAL NO.1112 of 2007

BETWEEN:-
1. UMESH (DEAD) THROUGH HIS LRS

1(A). SMT. TARABAI BATHAM, AGED ABOUT 85
YEARS, WIFE OF THE LATE PREMHCAND
BATHAM

1(B). NIRMALA BATHAM, AGED ABOUT 50 YEARS,
WIFE OF THE LATE UMESH BATHAM

1(C). SUNNY BATHAM, AGED ABOUT 21 YEARS, SON
OF THE LATE UMESH BATHAM

1(D). VAISHALI BATHAM, AGED ABOUT 24 YEARS,
DAUGHTER OF THE LATE UMESH BATHAM

1(E). MONIKA BATHAM, AGED ABOUT 20 YEARS,
DAUGHTER OF THE LATE UMESH BATHAM

ALL RESIDENTS OF GURUNANAK WARD,
OPPOSITE MAKHANLAL CHATURVEDI
SCHOOL, KHANDWA

.....APPELLANTS

(SHRI IMTIYAZ HUSSAIN, SENIOR ADVOCATE
WITH SHRI RAVIKANT PATEL, ADVOCATE)

AND

1. VASUDEO, AGED ABOUT 39 YEARS, SON OF
MANSHARAM GURJAR
2 S.A. No.1112 of 2007

2. SMT. RANI BAI, AGED ABOUT 56 YEARS, WIFE
OF THE LATE MANSARAM GURJAR

3. SMT. JAMNA BAI, AGED ABOUT 37 YEARS, D/O
MANSHARAM WIFE OF GOKUL PATEL,
RESIDENT OF VILLAGE BAMAN GAON
AKHAI, TAHSIL & DISTRIC KHANDWA.

4. SMT. SANGEETA BAI, AGED ABOUT 33 YEARS,
DAUGHTER OF MANSHARAM, WIFE OF
GOPAL PATEL RESIDENT OF VILLAGE KHEDI,
TAHSIL HARSUD, DISTRICT KHANDWA.

5. SMT. ANITA, AGED ABOUT 29 YEARS,
DAUGHTER OF MANSHARAM, WIFE OF
MAHESH PATEL, RESIDENT OF VILLAGE
TAKAL KHEDA, DISTRICT KHANDWA.

.....RESPONDENTS

(SHRI AVINASH ZARGAR, ADVOCATE)

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

This appeal coming on for final hearing this day, Court passed
the following:
JUDGMENT

This second appeal has been preferred by the appellants/defendants/tenants challenging the judgment and decree dtd. 15.05.2007 passed by First Additional District Judge, Khandwa East Nimar in Civil Appeal No.35-A/2006 reversing the judgment & decree dtd. 29.01.2003 passed by Additional Judge to the Court of First Civil Judge Class-2, Khandwa in Civil Suit No.36-A/2001 whereby learned trial Court dismissed the suit filed for eviction on the grounds available under Section 12(1)(a),(c),(e)&(m) 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)(a),(e)&(m) of the Act.

2. This second appeal was admitted for final hearing on 29.11.2012 on the following substantial questions of law:-

"1. Whether the lower Appellate Court was justified in granting the decree under Section 12(1)(a) of the M.P. Accommodation Control Act, 1961 in the facts of the present case?

2. Whether the lower Appellate Court was justified in granting the decree under Section 12(1)(m) of the M.P. Accommodation Control Act, 1961 without having substantial pleading on the issue of diminishing the value of the accommodation by the tenant detrimental to the interest of the landlord, however, the finding so recorded by the lower Appellate Court is in accordance with law?

3. Whether the lower Appellate Court has rightly decreed the suit on the ground of Section 12(1)(e) of the M.P. Accommodation Control Act, 1961 in the facts and the evidence so brought on record, however, the finding recorded by the lower Appellate Court is not perverse?

3. Learned counsel for the appellants submits that on the basis of notice demanding arrears of rent dtd.01.06.2001 (Ex.P/4) and notice dtd.04.06.2001 (Ex.P/9), the suit filed on 25.06.2001 was not maintainable and no cause of action had accrued to the plaintiff for filing the suit for eviction on the ground of arrears of rent. As regards ground of eviction under Section 12(1)(m) of the Act is concerned, he

submits that because during the rainy season the tin shed was damaged, therefore, it was got repaired by the tenants/defendants, which did not diminish the value of the suit accommodation, therefore, no decree of eviction on the ground under Section 12(1)(m) of the Act could have been passed. As regards the ground of eviction under Section 12(1)(e) of the Act, he submits that learned first appellate Court has not properly appreciated the evidence available on record regarding alleged need of his son Vasudeo and there is no documentary evidence available on record to show that the landlord's son is residing in the tenanted accommodation. Accordingly, he prays for allowing the second appeal.

4. Learned counsel appearing for the respondents/plaintiffs supports the impugned judgment and decree and prays for dismissal of this second appeal with the submissions that the substantial questions of law framed by this Court are not involved in the second appeal.

5. Heard learned counsel for the parties and perused the record.

Substantial question of law No.3.

6. The suit has been filed by the plaintiff-Mansharam for the need of his son Vasudeo and his family members for their residence and by adducing evidence, the need of suit accommodation for his son as well as his family members, has been proved. After due appreciation of the evidence, learned first appellate Court has also found proved the neeed and has decreed the suit for eviction on the ground of bonafide need of the plaintiff's son Vasudeo and his family members. Even otherwise, while framing the substantial question of law, this Court has itself

observed that "however, the finding recorded by the lower appellate Court is not perverse".

7. In view of the aforesaid and after perusal of the entire record including the oral testimony of the parties, no illegality appears to have been committed by learned first appellate Court in granting decree of eviction on the ground under Section 12(1)(e) of the Act.

8. In the case of Kishore Singh Vs. Satish Kumar Singhvi 2017(3) JLJ 375 coordinate bench this of Court has relied upon the decision of Supreme Court in the case of Ragavendra Kumar Vs. Firm Prem Machinary and Company AIR 2000 SC 534, and held that the findings recorded on the question of bonafide requirement do not give rise to any substantial question of law. As such, the substantial question of law no.3 framed by this Court on 29.11.2012 does not appear to be involved in the present second appeal.

9. It is well settled that the decree is executable only on one or more grounds of eviction. In the present case, learned first appellate Court has granted decree on three grounds under Section 12(1)(a),(e) and (m) of the Act. In view of affirming findings on the question of bonafide need, I do not think necessary to consider the substantial question of law no. 1 & 2 regarding the grounds of eviction under Section 12(1)(a)&(m) of the Act.

10. At this stage learned senior counsel appearing for the appellants/tenants submits that the appellants are ready to vacate the premises in question and they may be granted one year time for the said purpose, which has not been disputed by learned counsel appearing for the respondents.

11. In view of the prayer made on behalf of the appellants for granting time to vacate the tenanted premises, in the interest of justice, one year's time for vacating the tenanted premises/accommodation is granted on the following conditions:-

(i) The appellants/tenants shall vacate the tenanted premises/

accommodation on or before 31.03.2024.

(ii) The appellants/tenants shall regularly pay rent to the

respondents/landlord and shall also clear all the dues, if any, including the

cost of the litigation, if any, imposed by the learned Court below.

(iii) The appellants/tenants shall not part with the tenanted premises/

accommodation to anybody and shall not change nature of the

accommodation.

(iv) The appellants/tenants shall furnish an undertaking with regard to the

aforesaid conditions within a period of three weeks before the learned

executing Court.

(v) If the appellants/tenants fail to comply with any of the aforesaid