Madhya Pradesh High Court
M/S Mukesh Kumar,Sunil Kumar vs Smt.Fatima Biwi on 30 November, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 30 th OF NOVEMBER, 2023
SECOND APPEAL No. 7 of 2009
BETWEEN:-
1. M/S MUKESH KUMAR, SUNIL KUMAR BIDI
LEAVES MERCHANTS, LALTA CHOWK, SATNA
DISTRICT SATNA (MP) THROUGH ITS PARTNERS
1(a) PARASRAM (DEAD) THROUGH LRS:-
(i) ANIL KUMAR, AGED ABOUT 43 YEARS, S/O
LATE PARASRAM R/O LALTA CHOWK, SATNA
(MP)
(ii) RAKESH KUMAR S/O LATE PARASRAM R/O
LALTA CHOWK, SATNA (MP)
(iii) SUNIL KUMAR, AGED ABOUT 38 YEARS, S/O
LATE PARASRAM R/O LALTA CHOWK, SATNA
(MP)
(iv) SMT. KUSUMLATA BAI, AGED ABOUT 53
YEARS, W/O RAJESH VERMA,
(v) SMT. REKHA BAI, AGED ABOUT 42 YEARS, W/O
PRAMOD KUMAR
NO.(4) & (5) R/O DEEP STUDIO, GORAKHPUR (UP)
1(b). MUKESH KUMAR S/O S/O SHRI PARASRAM, AGED
ABOUT 30 YEARS, R/O LALTA CHOWK, DISTT.
SATNA (M P)
.....APPELLANTS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
SMT. FATIMA BIWI W/O MOHD. ASLAM BAKHSH, AGED
ABOUT 58 YEARS, R/O LALTA CHOWK SATNA (M P)
.....RESPONDENT
(BY SHRI SHEERSH AGRAWAL - ADVOCATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
Signature Not Verified
JUDGMENT
Signed by: KRISHNA SINGH
Signing time: 12/1/2023
6:46:38 PM
This second appeal has been preferred by the appellant-
firm/defendant/tenant challenging the judgment and decree dated 17.12.2008
passed by 1st Additional District Judge, Satna in Civil Appeal No.74A/2006
affirming the judgment and decree dated 29.08.2006 passed by 2nd Civil Judge
Class II, Satna whereby Courts below have decreed the respondent/plaintiff's
suit for eviction filed on the grounds under Section 12(1)(e) & (f) of the M.P.
Accommodation Control Act, 1961 (in short 'the Act').
2. Facts in short are that the plaintiff being landlord instituted the suit for
eviction of the tenanted premises for business and residential/composite need of
her son and daughter-in-law with the allegations that the defendant is tenant in
the suit premises on rent of Rs.1,000/- per month and there is no other
alternative suitable vacant accommodation for the same in the township of
Satna. On inter alia allegations the suit was filed.
3. The defendant appeared and filed written statement denying the
plaintiff's allegations and contended that although the defendant is tenant in the
tenanted premises but the plaintiff is not in need of the same and there are other
alternative suitable accommodations available in the township of Satna. On
inter alia contentions defendant prayed for dismissal of the suit.
4. On the basis of pleadings, learned trial court framed issues and
recorded evidence of the parties and upon consideration of the same, holding
the plaintiff to be in bonafide need of the tenanted premises for her son and
daughter-in-law, decreed the suit vide judgment and decree dated 29.08.2006,
which upon filing civil appeal by the defendant/tenant has been affirmed by first
appellate Court vide judgment and decree dated 17.12.2008.
5. Upon filing second appeal by the defendant/appellant, this Court
admitted the second appeal on 21.01.2009 on the following substantial question
of law:-
"1. Whether in view of the fact that non-suitability
of alternative accommodation was neither pleaded nor
proved by the plaintiff, the Courts below committed an
error of law in holding that need of plaintiff is bonafide?"
6. Learned counsel for the appellant/defendant submits that despite the
fact that in the west direction of the tenanted premises, the plaintiff is having
other alternative accommodation in the shape of four-storeyed building, the
plaintiff did not plead non-suitability thereof in the plaint and trial Court has also
not discussed the evidence adduced by the parties in that regard, therefore, the
judgment and decree passed by Courts below are not sustainable.
7. In reply to the aforesaid, learned counsel for the respondent/plaintiff
submits that the property situated in the west direction of the tenanted premises
is not owned by the plaintiff, therefore, it cannot be said to be an alternative
accommodation available for the need of plaintiff's son and daughter-in-law. He
also submits that Courts below have also taken this aspect of the matter into
consideration and decreed the suit. As such, the substantial question of law
formulated by this Court does not arise in the present case.
8. Heard learned counsel for the parties and perused the record.
9. After having considered the entire material available on record, Courts
below have concurrently decreed the suit holding the need of the plaintiff's son
and daughter-in-law to be genuine and also held that there is no other vacant
alternative accommodation available with the plaintiff in the township of Satna.
Although, learned counsel for the appellant/defendant has tried to say that the
accommodation situated in the west direction of the tenanted premises is
available with the plaintiff but there is no documentary evidence available on
record to show that it belongs to the plaintiff or is in her ownership. As the
alleged alternative accommodation is not owned by the plaintiff, therefore, in my
considered opinion, that cannot be considered to be an alternative
accommodation within the purview of Section 12(1)(e) & (f ) of the Act.
10. In the case of Kishore Singh vs. Satish Kumar Singhvi 2017(3) JLJ
375 a coordinate Bench of this 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.
11 . At this stage, learned counsel for the appellant/defendant/tenant
prays for one year's time to vacate the tenanted premises, which has not been
opposed by learned counsel appearing for the respondent.
12. In view of the aforesaid, declining interference in the impugned
judgment and decree passed by Courts below, this Court deems fit to grant
time for vacating the tenanted premises upto 30.11.2024 on the following
conditions:-
(i) The appellants/defendants shall vacate the tenanted premises on or
before 30.11.2024.
(ii) The appellants/defendants shall regularly pay rent to the
respondent/landlord and shall also clear all the dues, if any, including the
costs of the litigation, if any, imposed by Courts below.
(iii) The appellants/defendants shall not part with the tenanted
premises to anybody and shall not change nature of the same.
(iv) The appellants/defendants shall furnish an undertaking with regard
to the aforesaid conditions within a period of three weeks before the learned
Court below/Executing Court.
(v) If the appellants/defendants fail to comply with any of the aforesaid
conditions, the respondent/plaintiff shall be free to execute the decree
forthwith.
(vi) If after filing of the undertaking, the appellants/defendants do not
vacate the suit shop on or before 30.11.2024 and create any obstruction, they
shall be liable to pay mesne profits of Rs.500/- per day, so also contempt of
order of this Court.
(vii) It is made clear that the defendants/appellants shall not be entitled
for further extension of time after 30.11.2024.
13. With the aforesaid observations, this second appeal is hereby disposed
off. No order as to costs.
14. Pending application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
veni
