Madhya Pradesh High Court
Ashok Ku.Rathore vs Shashikant Malviya on 12 May, 2023
Author: Gurpal Singh Ahluwalia
1 F.A. No.716 of 2005
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 12th OF MAY, 2023
FIRST APPEAL No. 716 of 2005
BETWEEN:-
ASHOK KUMAR ROTHORE S/O B.M. ROTHOR,
AGED ABOUT 41 YEARS, (PROPRIETOR) NITIN
AUTO PARTS, GURUDWARA ROAD, DISTRICT
BETUL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI GREESHM JAIN - ADVOCATE)
AND
SHASHIKANT MALVIYA S/O G.L. MALVIYA,
AGED ABOUT 42 YEARS, R/O NEAR CHICHOLI
NAKA, SADAR, DISTRICT BETUL (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI AJAY OJHA - ADVOCATE)
"Reserved on : 26.04.2023"
"Pronounced on : 12.05.2023".
This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
JUDGMENT
This First Appeal under Section 96 of CPC has been filed against
the Judgment and Decree dated 08/08/2005 passed by First Additional
District Judge, Betul in Civil Suit No.65A/2004.
2. The Appellant is the Defendant against whom a decree for
possession as well as for payment of rent @ Rs.300 from the date of
institution of Civil Suit till delivery of possession has been passed.
3. The facts necessary for disposal of present appeal in short are
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 5/12/2023
7:17:49 PM
that the plaintiff/respondent filed a suit for possession and recovery of
Rs.70,000/-. It is the case of the plaintiff that in the year 1985-86, he
had taken shop No.5 area 15x10 Sq. Ft. situated in Jawahar ward on
tenancy from Vishwakarma Samaj Society. On one side of the shop,
the shop No.4 of Manoj Joshi is situated in which he is running the
business of spare parts and on the other side of the shop in question, the
shop No.6 of Murlidhar Agrawal is situated who is also running a spare
parts shop. The rent of the shop in question was Rs. 200/- per month
and with passage of time, it has gone upto Rs. 300/- per month. The
plaintiff after taking the shop on rent, started the business of earthen
tiles and floor in the name of Shashi Traders. The plaintiff had already
passed typing examination therefore in the year 1989-90, he went to
Seoni Malwa to take the training of Shorthand. The elder brother of the
plaintiff started running the shop. His elder brother was a contractor,
therefore, his attention was towards his contractorship, therefore, he
was not opening the shop regularly. The defendant gave an offer to the
elder brother of the plaintiff that he also requires the shop for his
business and since, the plaintiff has gone out of station and the shop is
also not being run regularly, therefore, he sought permission to run his
business from the shop in question. He also assured that as soon as he
gets another shop, he would vacate the shop in question and offered the
rent @ Rs. 500/- per month. The plaintiff also suggested his brother to
accept the offer and accordingly, temporary permission was granted in
the month of August or September 1989. The defendant started his
business in the name and style Nitin Auto Parts. In the year 1992, the
plaintiff got his job and therefore, he went to Dewas. In the year 1993,
the defendant also got another shop No. 7 from Vishwakarma Samaj
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 5/12/2023
7:17:49 PM
Society on rent. Therefore, the plaintiff requested the defendant to
vacate the shop No. 5, but all the time he was giving assurance. In the
month of December 1994, the defendant again gave an assurance to
vacate the shop. The defendant with an intention to protect his
possession, filed a civil suit for permanent injunction and a judgment
and decree was passed against the plaintiff to the effect that he shall not
forcibly dispossess the defendant. The plaintiff is regularly making
payment of rent of shop No.5 to Vishwakarma Samaj Society. The rent
notes were executed in the year 1986 and 2002 under the instructions
of Vishwakarma Samaj Society and at present the plaintiff is making
payment of rent at the rate of Rs.300/- per month. A notice dated
05/06/2004 was sent to the defendant thereby informing him that the
license is being cancelled and he should pay the arrears of license fee
to the tune of Rs.18,000/- and the vacant possession of the shop be
handed over to him but neither the defendant has paid the license fee
nor has handed over the vacant possession of the same. Accordingly,
the suit was filed for delivery of possession as well as for payment of
arrears of license fee to the tune of Rs.18,000/- and further monthly
license fee of Rs.500/-.
4. The defendant filed his written statement and denied the plaint
averments. It was denied that the defendant is the licensee of the
plaintiff. All the plaint averments were denied. It was admitted that the
owner of the shop No.5 is Vishwakarma Samaj Society and it was
claimed that since the plaintiff as well as the office bearers of the
Society belongs to the same caste, therefore they want to dispossess the
defendant from his shop No.5. On various occasions, he was
pressurized by the owner to execute a rent note and the defendant had
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 5/12/2023
7:17:49 PM
also agreed for the same but under the pressure of the plaintiff, the
Vishwakarma Samaj Society did not execute the rent note. A
permanent injunction was passed against the plaintiff & others that they
would not dispossess the defendant without following due process of
law. The averment that the plaintiff is making payment of rent of
Rs.300/- to the Vishwakarma Samaj Society is false. In additional
pleadings, it was pleaded that in the month of January, 1988, the suit
shop was lying vacant and the defendant after approaching the office
bearers of the Vishwakarma Samaj Society took the said shop on
monthly rent of Rs.200/-. The tenancy was verbal and with the consent
of the owner, the monthly rent was enhanced. In the month of January,
1995, the monthly rent was enhanced to Rs.220 and accordingly, the
defendant had sent the arrears of rent by money order to the
Vishwakarma Samaj Society which was received by them and a receipt
dated 10/05/1995 was also issued. Similarly, the arrears of rent for the
month of May, 1995 to September, 1995 were paid by cheque and the
arrears of rent up to July, 1996 were paid to the Vishwakarma Samaj
Society. In fact the plaintiff himself had terminated his tenancy and had
handed over the vacant possession of the suit shop to the Vishwakarma
Samaj Society in the month of December, 1987. In the year 1985-86,
the plaintiff was minor therefore, there was no question of running any
business. In fact the brother of the plaintiff was in need of suit shop and
accordingly, the suit was filed with a dishonest intention to get the suit
shop vacated. Neither the plaintiff is the landlord nor the defendant is
the licensee and there is no agreement or rent note between the plaintiff
and the defendant. The defendant is in possession of the suit shop in
question and accordingly, it was prayed that the plaintiff is not entitled
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 5/12/2023
7:17:49 PM
for decree for possession or arrears of rent.
5. The Trial Court after framing issues and recording evidence
decreed the suit. It was held that the Vishwakarma Samaj Society is the
owner of suit shop No.5 and the plaintiff is the tenant from the year
1985-86. The rent of the suit Shop No.5 was enhanced to Rs.300/-. It
was also found proved that in the month of August or September,
1988-1989, the plaintiff had handed over the possession of the suit
shop to the defendant for temporarily running his business. It was also
found proved that the defendant is the licensee and it was also found
proved that the defendant is a tenant of suit shop No.7 also which is
owned by Vishwakarma Samaj Society. It was also held that in spite of
repeated requests, the defendant did not vacate the suit shop and
accordingly, it was held that the plaintiff is entitled for a decree for
possession as well as also for recovery of arrears of license fee and the
plaintiff is regularly making payment of rent to the Vishwakarma
Samaj Society.
6. Challenging the judgment and decree passed by the Trial Court,
it is submitted by the counsel for the appellant that in fact the appellant
is not the licensee of the plaintiff but he is the tenant of the
Vishwakarma Samaj Society and therefore, the Trial Court committed
a material illegality by passing the impugned judgment and decree.
7. Per contra, the counsel for the respondent has supported the
findings recorded by the Trial Court.
8. The moot question for consideration is as to whether the plaintiff
is the tenant in shop No.5 or the shop No.5 was let out by the
Vishwakarma Samaj Society to the defendant.
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 5/12/2023
7:17:49 PM
9. The plaintiff has examined himself as PW-1, Nathuram (PW-2),
Pannalal Malviya (PW-3) and Chironjilal (PW-4).
10. Pannalal Malviya (PW-3) is the President of the Society. He has
stated that the plaintiff was the tenant in shop No.5. During his period,
the plaintiff was making payment of rent and rent receipts were also
being issued. The receipts, Ex.P-33 to P-36, were proved by this
witness. He has stated that the tenure of the President is of 3 years,
whereas the tenure of Ex-President Narendra Kumar Malviya was of
one year. Since the tenure of Narendra Kumar Malviya was disputed,
therefore he was removed. The rent of shop No.7 was being paid by
Ashok. This witness also proved the rent note agreement between the
Society and the plaintiff executed on 19/02/2002, which is Ex.P-38 and
the rent note executed between the Society and the defendant in respect
of shop No.7 is Ex.P-39.
11. Chironjilal (PW-4) has stated that from the year 1998 till
17/02/2002 he was the President. The plaintiff was the tenant of shop
No.5. Rent was being paid by the plaintiff. The receipts were being
issued by the Society to the plaintiff. Gopal Malviya was the Treasurer
during his tenure. Rent receipt Ex.P-28 bears his signatures. The shops
were let out to the tenants for a period of 15 years. During his tenure,
the tenancy period of 4 to 5 shops was coming to an end and
accordingly, the rent agreements were renewed. Notices were also
given to the tenants and the notice issued to the plaintiff is Ex.P-40.
After the said notice, the rent agreement was renewed which is Ex.P-
38. Manoj was the tenant in shop No.7 whereas the agreement was
executed with Ashok but thereafter he corrected himself by saying that
by mistake he mentioned that Manoj was the tenant. The agreement
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 5/12/2023
7:17:49 PM
executed between the Society and the defendant in respect of shop
No.7 is Ex.P-39. This witness denied his signatures on a rent note,
Ex.D-8 which according to the defendant was executed between the
Society and the defendant for letting out the shop No.5 to the
defendant.
12. Ashok (DW-1) has stated that the shop was lying vacant and
therefore it was let out by the Society to him. This witness has filed
two receipts purportedly issued by the President of the Vishwakarma
Samaj Society Betul in respect of shop No.5. According to the
defendant, these receipts were issued on 10/05/1995 and 06/10/1995
according to which the arrears of rent for the month of February,
March and April, 1995 were paid by Ex.D-1 and arrears of rent from
May, 1995 to July, 1996 were paid by Ex.D-2. The defendant himself
has relied upon a notice dated 10/11/1994, Ex.D-5, according to which
the Society had decided to let out shop No.5 to the defendant. It was
mentioned that earlier the suit shop was let out to Shashi Traders and
since the Shashi Trader had not paid the rent and had also violated the
other terms and conditions of the agreement, therefore its possession as
well as the rent agreement has been cancelled and accordingly, it was
directed that the defendant must hand-over the vacant possession of the
suit shop within a period of 15 days or else must enter into a fresh
agreement prior to 14th.
13. It is not the case of the plaintiff that the Society thereafter
entered into any agreement or let out the suit property to the plaintiff.
The only rent note on which the defendant has placed reliance is
Ex.D-8 on which Chironjilal Malviya (PW-4) has denied his
signatures. Further, according to the defendant, this agreement was
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 5/12/2023
7:17:49 PM
executed on 11/03/2002. Once the alleged signatory to this agreement
has denied the signatures, therefore it is held that the defendant has
failed to prove that he was ever inducted by the Vishwakarma Samaj
Society as a tenant of shop No.5.
14. The plaintiff has not examined the person who had issued the
receipts Ex.D-1 and Ex.D-2 as well as who had issued the notice dated
10/11/1994, Ex.D-5. Thus, this Court is of the considered opinion that
the Trial Court did not commit any mistake by holding that the plaintiff
was the tenant of suit shop No.5 and he had permitted the defendant to
run his business but the plaintiff continuously paid his rent to the
Vishwakarma Samaj Society and the license was terminated.
15. Accordingly, no case is made out warranting interference in the
matter.
16. As a consequence thereof, the Judgment and Decree dated
08/08/2005 passed by First Additional District Judge, Betul in Civil
Suit No.65A/2004, is hereby affirmed.
17. The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
shubhankar
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 5/12/2023
7:17:49 PM
