Madhya Pradesh High Court

Gangadhar Narla vs Shri Nalin Gala on 25 October, 2023

Author: Dwarka Dhish Bansal

                                           1
       IN THE HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                                      BEFORE

       HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                      FIRST APPEAL No. 1079 of 2015

BETWEEN

1.     GANGADHAR NARLA, S/O LATE
       N.TATARAO, AGED ABOUT 69
       YEARS, R/O 8-541, A/2 ROAD, NO.9,
       BANJARA HILLS, HYDRABAD -
       500034.

2.     DR. JANKI YEDALAPALLI, W/O DR.
       BRAMHANANDA       RAO,   AGED
       ABOUT 51 YEARS, R/O 8-541, A/2
       ROAD, NO.9, BANJARA HILLS,
       HYDRABAD -500034.

                                                                    .....APPELLANTS

(BY MS. C. VEDA RAO - ADVOCATE)

AND

SHRI NALIN GALA, S/O SHRI H.S. GALA,
R/O HOUSE NO.1374, SHILAKUNJ COLONY,
M.P.E.B CLASS-I OFFICER CO-OPERATIVE
SOCIETY, RAMPUR JABALPUR (M.P)


                                                               ....RESPONDENT
(BY SHRI AMIT SAHNI -ADVOCATE)
-----------------------------------------------------------------------------------------
                       Heard on               19/10/2023
                       Reserved on            25/10/2023
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       This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the Court pronounced the following:

                                  JUDGMENT

This first appeal has been preferred by the appellants/plaintiffs

challenging the judgment and decree dated 04.09.2015 passed by 5th

Additional District Judge, Jabalpur in Civil Suit No.10-A/2015 whereby

learned trial Court has dismissed the plaintiffs' suit filed for eviction on

the ground under Section 12(1)(m) of the M.P Accommodation Control

Act, 1961 (in short 'the Act').

2. In short the facts are that the plaintiffs instituted a suit for eviction

with the allegations that they are owners of the suit property bearing plot

No.10, 11 & 12 having Municipal House No.1374, total area 45000 sq.ft

over which a house is constructed over an area 2360 sq.ft which came in

ownership of the plaintiffs on the basis of registered gift deed dated

17.05.1976 executed by their father late Shri Tatarao Narla. It is alleged

that on 01.11.2007 an agreement of tenancy was executed for a period 60

months in between the appellant/plaintiff 1 and defendant whereby the

suit property was let out for residential purpose on monthly rent of

Rs.5,000/-, with the stipulation that the lessee shall not change nature of

property without previous consent of the lessor, but contrary to the terms

of the lease, the defendant sent a letter to the plaintiffs informing that necessary maintenance of the house in question has been done in which

an amount of Rs.1,50,000/- was spent and the house still requires a lot of

maintenance work, thereupon the plaintiff visited the suit property and

found that the defendant has constructed a godown, servant quarter &

garage in the open area of the suit property without consent of the

plaintiffs. As a result thereof the plaintiffs sent a legal notice dated

20.04.2009 to the defendant terminating the lease with the further

instructions to him to vacate the premises within a period of 15 days, but

by sending false reply he denied the averments of notice and contended

that he has raised construction of servant quarter, garage and store room

with prior permission of the plaintiffs and it is of temporary nature. With

these allegations the suit was filed.

3. The defendant appeared and filed written statement denying the

allegations made in the plaint, however agreement of tenancy and

construction raised by the defendant was admitted with the contentions

that the temporary construction made by him has not materially altered

the rented accommodation to the detriment of the landlord's interest and

has not diminished its value. On inter alia contentions the suit was prayed

to be dismissed.

4. On the basis of pleadings of the parties, learned trial Court framed

as many as six issues and recorded evidence of the parties. In support of their case the plaintiffs examined Gangadhar Narla (PW-1), Madhulika

Ram Badlani (PW-2), Kiran Raghunath Kerhalkar (PW-3) and submitted

documentary evidence (Ex.P/1 to P/11). In turn the defendant- Nalin Gala

(DW-1) examined himself and submitted documentary evidence (Ex.D-1

& D-2).

5. After hearing the parties, learned trial Court on the basis of

available evidence found relationship of landlord and tenant in between

the parties but for want of requisite stamp duty and registration, the lease

deed dated 01.11.2007 was held to be inadmissible in evidence, although

it was not produced on record. At the same time while deciding issue no.2

it was held that the defendant has raised construction on the open land

without plaintiffs' permission and has breached the agreement of tenancy

dated 01.11.2007, however refused to pass decree of eviction vide

impugned judgment and decree dated 04.09.2015. Against which the

instant first appeal has been preferred by the plaintiffs/appellants.

6. Learned counsel for the plaintiffs/appellants submits that although

learned Court below has held the lease deed to be inadmissible in

evidence for want of requisite stamp duty and its registration, but in view

of admitted relationship of landlord and tenant it has no adverse effect

and she submits that in view of the affirmative findings recorded by learned trial Court on issue no.2 the plaintiffs were entitled for decree of

eviction on the ground under Section 12(1)(m) of the Act.

7. Learned counsel for the appellants/plaintiffs further submits that

during pendency of instant first appeal, applications (I.A.No.2905/2017

and 2906/2017) under Order 6 Rule 17 CPC and Order 41 Rule 27 CPC

have been filed by the appellants/plaintiffs seeking amendment in the

plaint and adducing additional evidence to the effect that the plaintiff 1 is

in need of the suit accommodation for his residence and there is no other

alternative accommodation available in the township of Jabalpur and after

surrendering the United States' citizenship he has planned to settle in

Jabalpur City and he intends to stay in his own house and as such the

plaintiffs are entitled for decree on the ground under Section 12(1)(e) of

the Act. Accordingly, by way of application the plaintiffs have proposed

amendment in paragraphs 7 & 8 of the plaint by adding additional

paragraphs 7A-B & 8A.

8. Another application under Order 41 Rule 27 CPC (IA 5612/2023)

with support of certain documents, has also been filed with the contention

that now the defendant has left the Jabalpur city and is residing at Bhopal.

With these submissions learned counsel submits that the appeal deserves

to be allowed and in any case the plaintiffs may be permitted to amend

their plaint, and the matter may be remanded back for decision afresh after recording evidence of the parties in respect of proposed amendment

and documents.

9. In support of her submissions, learned Counsel for the appellants

placed reliance on the decisions in the case of Ramesh Kumar vs. Kesho

Ram AIR 1992 SC 700; Pratap Rai Tanwani and Another vs. Uttam

Chand and Another (2004) 8 SCC 490; and Neetumal vs. Dhanvati @

Dwarika and others 2020 (3) M.P.L.J. 427.

10. Learned counsel for the respondent/defendant submits that

although, learned trial Court decided issue no.2 in affirmative holding

thereby that the defendant has raised construction on the suit property

without permission of the plaintiffs, but even in presence of such findings

the plaintiffs are not entitled for decree on the ground under Section 12(1)

(m) of the Act, because the temporary construction raised by the

defendant has not materially altered the accommodation to the detriment

of the landlord's interest or has not diminished its value. Learned counsel

for the respondent/defendant submits that even upon recording such

finding by learned trial Court, there is no question of granting decree on

the ground under Section 12(1)(m) of the Act, and in the light of

provisions contained in Section 12(10) of the Act, the defendant has to be

given time to restore the accommodation to its original condition.

11. So far as the application under Order 6 Rule 17 CPC and under

Order 41 Rule 27 CPC are concerned, learned counsel for the

respondent/defendant submits that in respect of plot Nos.10, 11 & 12

consolidated lease deed was executed by plaintiffs in favour of the

defendant and from paragraph 1 of the plaint it is clear that plaintiff 1 is

owner of plot Nos. 10-11 and the plaintiff 2 is owner of plot No.12,

which they acquired on the basis of gift deeds executed by their father in

the year 1976. He submits that by way of proposed amendment the

plaintiffs want suit accommodation to be vacated for residential need of

plaintiff 1 only and the tenancy which is joint and indivisible cannot be

split up. He further submits that the plaintiffs are holding the property as

separate individuals and they being tenants in common, suit cannot be

filed for vacating the suit premises for need of plaintiff 1 only.

12. He further submits that on the premise that the defendant has

started living at Bhopal and has left the suit premises for more than last

six months, the plaintiffs cannot be granted any decree because the

ground under Section 12(1)(d) cannot be taken by way of amendment and

during pendency of the suit, indeed no application for amendment has

been filed in that regard. In support of his submissions learned counsel

for the respondent/defendant placed reliance on the decisions in the case

of The Commissioner of Gift Tax, Kerala vs. Smt. R. Valsala Amma (1972) 4 SCC 399; Habibunnisa Begum and others vs. G. Doraikannu

Chettiar (Dead) by LRs and others (2000) 1 SCC 74; and Sheela and

others vs. Firm Prahlad Rai Prem Prakash (2002) 3 SCC 375. With the

aforesaid submissions he prays for dismissal of the first appeal and said

applications as well as other pending applications.

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

14. In the instant first appeal following points for determination are

arising :-

(i) Whether in presence of the findings on issue no.2 regarding construction of servant quarter, store room and garage without permission of the plaintiffs, the defendant is liable to be evicted ?

(ii) Whether application under Order 6 Rule17 CPC deserves to be allowed ?

(iii) Whether on the available facts, the plaintiffs can be permitted to take a new ground of eviction under Section 12(1)(e) of the Act ?

15. In the present case, undisputedly the defendant was given the suit

accommodation for his residence and there is also no quarrel to the fact

that he was given possession of the suit property on the basis of a lease

deed dated 01.11.2007 executed for a period of 60 months. Although the

agreement of lease is not on record, but in view of the admitted execution of lease deed, it has no adverse effect because relationship of landlord

and tenant between the plaintiffs and defendant is an admitted fact.

16. While deciding issue no.2 although learned Court below has held

that the defendant has just contrary to the lease agreement dated

01.11.2007 raised construction on open area of the suit property on or

before 14.03.2009 but refused to pass decree of eviction with the

observation that the plaintiffs have failed to prove that the construction

raised by the defendant has materially altered the accommodation to the

detriment of the landlord's interest and has also diminished its value.

17. Evidently on the basis of oral evidence adduced by the defendant,

learned trial Court has found that the alleged construction is of temporary

nature. In para 2 of the plaint it is alleged that plot area 45000 sq.ft. with

total built up area 2360 sq.ft. was given on lease and this fact has not

been disputed by the defendant in his written statement. Oral evidence

has come on record that construction in question had been raised on open

area i.e. in excess of already built up area 2360 sq.ft. but in the impugned

judgment there is no finding in that regard. In the light of admissions of

the defendant to the effect that he has raised construction of servant

quarter, garage and store room, constructed area and its nature as to

whether it is temporary or permanent, was to be clearly disclosed and

proved by defendant/tenant himself by producing some map or photographs etc. but there is no such documentary evidence on record,

but in spite of this and even after deciding issue no.2 in affirmative,

learned Court has dismissed the suit. In my considered opinion, in

absence of aforesaid material, even effective order as required under

Section 12(10) of the Act cannot be passed, which before passing order of

eviction, if any, has to be passed compulsorily. As such the matter

deserves reconsideration by learned trial Court on the said ground.

18. By way of application under Order 6 Rule 17 CPC the plaintiffs

have contended that because plaintiff 1 has now permanently shifted to

India after surrendering his green card, therefore, the plaintiff 1 is in need

of the suit accommodation for his residence as well as for family

members and there is no other alternative accommodation available with

him in the township of Jabalpur.

19. The application has been opposed by the respondent on the ground

that the plaintiffs are tenants in common and the lease was given by them

jointly and that the tenancy cannot be split up, therefore, the application

under Order 6 Rule 17 CPC cannot be allowed. However, he concedes

about legal position to the effect that fresh suit can be filed for the

bonafide requirement of plaintiff 1 only.

20. In respect of addition of a new ground of eviction in the pending

suit, a Full Bench of this Court has, in the case of Chhotelal Bhailal Patel

vs. Akbar Ali 1982 MPLJ 754, held as under :-

"6. It was, however, urged on behalf of the defendant by Shri Waghmare that the lan- guage of section 12(1) of the Act, rules out induction of additional ground for evic- tion after the institution of a suit for eviction. The contention cannot be upheld. Sec - tion 12(1) of the Act merely provides that no suit shall be filed for eviction except on a ground specified in that section. This restriction on the right to institute a suit for eviction only emphasises that if a suit for eviction were to be brought without disclos- ing a ground specified in Section 12(1) of the Act, then in that case, the plaint would be liable to be rejected for failure to disclose cause of action. There is nothing in the language of section 12(1) of the Act, which forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of section 12(1) of the Act. It may, be that in some cases, the requirement of a particular ground specified in section 12(1) of the Act is such as cannot be fulfilled unless that ground has come into existence prior to the filing of the suit, as in the case of a ground spe- cified in section 12(1)(d). But tenability of a ground sought to be added by way of amendment, does not affect the jurisdiction of a Court to permit that amendment. It may be that in such a case, it would be a sound exercise of discretion by the Court, if leave to amend is refused inasmuch as, a decree for eviction cannot be passed on such a ground. But as already observed, this aspect of the matter has no impact on the question of jurisdiction of the Court to permit the plaintiff to amend the plaint by adding a new ground for eviction. Any observation to the contrary which can be read in 1961 MPLJ 7(supra) or 1980 MPLJ 182 (supra) does not, in our opinion, lay down correct law".

21. A coordinate Bench of this Court in the case of Swami Vivekanand

Shishu Mandir vs. Smt. Fehmida Begam 2002(1) MPLJ 482 had taken

into consideration the aforesaid full Bench decision in the case of

Chhotelal Bhailal Patel (supra) and held as under :-

"8. The suit accommodation was admittedly let out originally for non- residential pur- pose and, therefore, the suit for eviction under the scheme of the M.P. Accommoda- tion Control Act, 1961 under section 12(1)(e) of the Act to meet the residential re - quirement of the landlord was not maintainable. The plaintiff through the proposed amendment wanted to convert the ground for eviction from clause (e) to clause (f) of sub-section (1) of section 12 of the Act. It is well settled after the decision of the Full Bench of this Court in Chhotelal v. Akbarali, 1983(1) RCR(Rent) 505 (M.P.) : 1982 MPLJ 754 that there is nothing in the language of section 12(1) which forbids addi- tion of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of section 12(1) of the Act. Another ground for eviction can be set up by amendment of the plaint. In the present case, the trial Court cannot be said to have exercised its discretion arbitrarily or capriciously in allowing amendment for converting the ground of eviction from Clause (e) to Clause (f). That was in the in- terest of justice and that would avoid multiplicity of the suits. The opposite-party has been compensated by costs of a substantial amount."

22. In the case of Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi &

Ors. (2006) 4 SCC 385, the Supreme Court has held that at the time of

consideration of application under Order 6 Rule 17 CPC, correctness or

falsity of the proposed amendment cannot be discussed. Relevant

paragraph of which is quoted as under :-

"28. Since the Court has entered into a discussion into the correctness or falsity of the case in the amendment, we have no other option but to interfere with the order passed by the High Court. Since it is settled law that the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing prayer for amendment, the order passed by the High Court is not sustainable in law as observed by this Court in Sampath Kumar vs. Ayyakannu and Another, (2002) 7 SCC