Khadi Gram Udyog vs Surendra Singh Saluja (Dead) ...
2023 Latest Caselaw 15320 MP

       IN THE HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                         BEFORE
        HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                 FIRST APPEAL No. 11 of 2007

BETWEEN

KHADI GRAM UDYOG BHAGAN 26-27 NEW
MARKET BHADBHADA ROAD T.T. NAGAR,
BHOPAL, THROUGH STATE DIRECTOR
KHADI AVAM    GRAMAUDYOG AYOG,
BHOPAL (M.P)

                                                                      .....APPELLANT
(BY SHRI D.N SHUKLA - ADVOCATE)

AND
SURENDRA SINGH SALUJA (DEAD) THR.
LRS. RANDHIR SINGH SALUJA, S/O LATE
SURENDRA SINGH SALUJA, AGED ABOUT
45 YEARS, R/O 4-YASHWANT NIWAS ROAD,
INDORE (M.P)

                                                                    ....RESPONDENT

(BY SHRI SHUBHAM MANCHANI ON BEHALF OF SHRI
SIDDHARTH SHARMA - ADVOCATE)
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                       Reserved on            :13-09-2023
                       Pronounced on          :19-09-2023
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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 is filed by appellant/defendant/tenant challenging

the judgment and decree dated 09.11.2006 passed by 11 th Additional

District Judge, Bhopal in Civil Suit No. 324-A/2006, whereby respondent/plaintiff's suit for eviction on the ground under Section 12(1)

(f) of the M.P. Accommodation Control Act, 1961 (in short 'the Act') has

been decreed along with arrears of rent, if any, with the further direction

to the plaintiff to pay compensation of Rs.2,64,000/- to the defendant

before getting possession of the suit shops.

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

of the rented shops no. 26-27 situated at New Market, T.T. Nagar

Bhadbhada Road, Bhopal with the allegations that the disputed shops

were given to the defendant on rent of Rs.11,000/- per month. It is alleged

that the shops are owned by HUF and there is a partnership firm of HUF

in the name of 'Just Linen' whose registered office is situated at Indore

and for starting retail business by the firm at Bhopal, the plaintiff needs

the suit shops, regarding which notice was issued on 09.07.1999 but the

defendant did not vacate the shops but prayed to renew the lease, which

has already expired. With the aforesaid allegations the suit was filed.

3. The defendant/appellant/tenant filed written statement with the

contentions that partnership firm is not registered and for both the shops

separate agreements were executed. The shop no.26 was given on rent in

the year 1990 and the shop no. 27 was given in the year 1988. The

plaintiff is not manager/karta of joint Hindu family, and at first floor there is vacant accommodation in possession of the plaintiff, which is sufficient

for starting requisite business. As such, denying the bonafide need, the

suit was prayed to be dismissed.

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

seven issues and recorded evidence of the parties. The plaintiff examined

witnesses namely Randhir Singh Saluja (PW1) & Pawan Nagpal (PW2)

and submitted documentary evidence (Ex.P-1 to P-32). The defendant

also examined witnesses namely Ajay Kumar Verma (DW1) and Yogesh

Kumar Shrivastava (DW2) and also submitted documentary evidence

(Ex.D-1 to Ex.D-4).

5. After hearing arguments and upon due consideration of material

available on record, learned trial Court held that there is relationship of

landlord and tenant in between the plaintiff and defendant and the

disputed shops are required by the plaintiff for business of partnership

firm 'Just Linen' belonging to HUF and there is no other alternative

accommodation in the township of Bhopal and decreed the suit vide

judgment and decree dated 09.11.2006, against which first appeal has

been filed.

6. Learned counsel for the appellant/defendant submits that both the

shops were given on rent separately by way of separate agreements for a period of 15 years. The shop no.26 was given in the year 1990 and shop

no.27 was given in the year 1988. Further the shops were not given on

rent by the HUF nor they belong to HUF, but the shops were given by

Surendra Singh Saluja individually, who cannot pray for vacation of the

shops for the need of partnership firm of HUF and the plaintiff is already

in possession of other vacant accommodation situated on the first floor of

disputed shops, therefore, the plaintiff cannot be said to be in need of the

suit shops.

7. Learned counsel further submits that suit filed before expiry of

lease period of 15 years, is premature and with a view to prove plaint

allegations, the plaintiff himself was not examined, therefore, in the light

of decision of Supreme Court in the case of Janki Vashdeo Bhojwani and

another vs. Indusind Bank Ltd. and others AIR 2005 SC 439, evidence of

power of attorney holder is not admissible. Placing reliance on the

decision in the case of D.N Sanghavi & Sons Vs. Ambalal Tribhuwan Das

AIR 1974 SC 1026, he submits that the plaintiff cannot seek eviction for

business of partnership firm. In support of his submission to the effect

that two separate suits were to be filed for the two disputed shops, he

placed reliance on a decision given by Division Bench of Calcutta High

Court in the case of Sm. Nagendra Bala Debi and others v. Provash Chandra and others AIR 1953 Calcutta 185. With the aforesaid

submissions he prays for allowing the first appeal.

8. Learned counsel appearing for the respondent/plaintiff submits that

the disputed shops belonged to HUF, and shops were given on rent to the

defendant by plaintiff-HUF. He submits that factum of existence of HUF

is proved by documentary as well as oral evidence of Randhir Singh

(PW1) and in absence of effective cross-examination about existence of

HUF, the appellant/defendant cannot raise the aforesaid objection. He

submits that the accommodation available at first floor cannot be

considered as an alternative accommodation. Placing reliance on decision

of a co-ordinate Bench of this Court in the case of Ghanshyam Chandil

vs. Ramkatori Agrawal 2015(3) MPLJ 181, he submits that power of

attorney holder, who is son of the plaintiff-Surendra Singh Saluja and is

aware of all the material facts since after induction of the defendant as

tenant, can give evidence in place of the plaintiff-Surendra Singh Saluja,

and his evidence has rightly been considered by learned trial Court.

Distinguishing the judgment in the case of D.N Sanghavi and sons

(supra) learned counsel for the respondent placed reliance on decision of

a co-ordinate Bench of this Court in the Case of Gyanchand Darshanlal

and others v. Balkishan and others 1981 MPLJ 162, and submits that a suit for eviction of the shops belonging to joint Hindu family can be filed

for the need of partnership firm's business in which the members

belonging to HUF are partners, because in the case of D.N Sanghavi and

sons (supra) the facts were quite different and in that case all the partners

were not members of joint Hindu family. He submits that learned Court

below has rightly decreed the suit for eviction accepting bonafide need of

the plaintiff and there is no illegality in the judgment and decree passed

by learned trial Court.

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

10. In the present case following points for determination are arising

for consideration of this Court :

"(i) Whether the shops in question were let out to the defendant by plaintiff Surendra Singh Saluja in individual capacity or on behalf of existing HUF ?"

(ii) Whether the suit under Section 12(1)(f) of the Act can be filed for need of partnership firm's business belonging to HUF/ joint Hindu family ?

11. In the present case there is no written agreement of tenancy/lease

deed available on record and suit has been filed in the name of Surendra

Singh Saluja, HUF through its Karta for the need of partnership firm's

business 'Just Linen'. The plaintiff by adducing evidence of Randhir Singh Saluja (PW1) & Pawan Nagpal (PW2) and by submitting

documentary evidence (Ex.P-1 to P-32) has proved that there is a HUF

and the shops were given to the defendant by HUF and the shops are

required for starting retail business of partnership firm 'Just Linen'.

12. Although to some extent the defendant has denied the case of HUF

in the written statement, but in that regard no effective cross-examination

has been done by the defendant, and except paragraph 13 of cross-

examination of plaintiff's witness Randhir Singh Saluja (PW1), no cross-

examination has been done as to whether the shops were given to the

defendant by Surendra Singh Saluja in personal capacity or as a

manager/karta of HUF. The letter dtd. 09.07.1999 (Ex.P-23) written and

addressed to the defendant shows that although communication was done

by Surendra Singh Saluja in his name but he has shown himself to be

Karta of HUF and in reply dtd. 06.05.2000 (Ex.P-24) to letter dtd.

09.07.1999 no objection has been raised by the defendant about status of

plaintiff-HUF. It is pertinent to mention here that the letter dtd.

09.07.1999 has also been exhibited without any objection by the

defendant itself as Ex.D-1. In another letter of July, 1993 (Ex.D-4) S.

Saluja has shown himself to be karta of HUF. However, some gap arose,

if any, has been filled up by the plaintiff by adducing oral evidence.

13. In view of aforesaid discussion, in my considered opinion, in

absence of effective cross-examination in respect of the status of plaintiff

as HUF, it can very well be said that the shops were given by plaintiff to

the defendant as HUF.

14. Due to challenge made by learned counsel for the

appellant/defendant to status of plaintiff as HUF, the respondent/plaintiff

has filed an application under Order 41 Rule 27 CPC (IA 11985/2023)

annexing copies of documents, which clearly show that Surendra Singh

Saluja has been Karta of HUF, but in the present case the case of HUF

pleaded by the plaintiff is otherwise proved from the documentary and

oral evidence available on record, therefore, even in absence of

documents filed along with application under Order 41 Rule 27 CPC, the

factum of HUF can be said to be established very well.

15. The suit has been filed for the need of partnership firm 'Just Linen'

belonging to HUF, in which all the members of HUF are partners. It is

well settled that the suit can be filed for need of one or more members of

the joint Hindu family, even if the property belongs to joint Hindu family.

So, in the present case, the suit filed by Surendra Singh Saluja as Karta of

HUF for need of partnership firm business of HUF is maintainable and

Randhir Singh Saluja being active partner and is son of plaintiff Surendra Singh Saluja, was competent to depose/give evidence in support of the

case pleaded in the plaint.

16. It is also clear that age of Randhir Singh Saluja on the date of suit

is 35 years and he is well aware of all the facts relating to the tenancy i.e.

even prior to execution of power of attorney in his favour, therefore, in

view of decision in the case of Ghanshyam Chandil vs. Ramkatori

Agrawal, which has also considered the decision of Supreme Court in the

case of Janki Vashdeo Bhojwani (supra), it cannot be said that the

testimony of plaintiff's son Randhir Singh Saluja is not admissible or he

could not depose in support of plaint averments.

17. The defendant has come with case that two shops were given on

different times for different period, therefore, one suit in respect of both

the shops is not maintainable. Undisputedly the plaintiff is one and single

firm/person who gave two shops to defendant, who is one and single

institution, therefore, merely because of the fact that the defendant was

given two shops by different agreements of tenancy on difference times,

it cannot be said that the plaintiff cannot file single suit for need of both

the shops. On the contrary, provision of order 2 rule 3 CPC permits the

plaintiff to unite several causes of action against the same defendant in

the same suit. As such, the judgment relied upon by counsel for the appellant in the case of Sm. Nagendra Bala Devi (supra) is not applicable

to the facts of present case and learned trial Court has not committed any

illegality in decreeing the suit for eviction filed in respect of two shops

given on rent to defendant by plaintiff.

18. So far as the argument of availability of alternative accommodation

at first floor is concerned, Hon'ble Supreme Court has in the case

of_Uday Shankar Upadhyay & Ors. vs. Naveen Maheshwari_(2010)1

SCC 503, held that the Court cannot dictate to the landlord, which floor

he should use for his business. Relevant para 7 of which, is quoted as

under :

"7. In our opinion, once it is not disputed that the landlord is in bona fide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. It is well-known that shops and businesses are usually (though not in- variably) conducted on the ground floor, because the customers can reach there eas- ily. The court cannot dictate to the landlord which floor he should use for his busi - ness; that is for the landlord himself to decide. Hence, the view of the courts below that the sons of plaintiff No. 1 should do business on the first floor in the hall which is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained. As regards the finding that the sons of plaintiff No. 1 are getting salary of Rs. 1500/- from the firm, in our opinion, this is wholly irrelevant and was wrongly taken into consideration by the High Court."

19. So far as the argument advanced on behalf of the appellant in

relation to the need of partnership firm of HUF is concerned, the

judgment in the case of D.N Sanghavi and sons (supra) says that under

Section 12(1)(f) of the Act, the shop cannot be got vacated by the

landlord for need of partnership firm. Perusal of this Judgment shows that in this case all the partners of the firm were not members of joint Hindu

family, but in the present case undisputedly the partners of the plaintiff

HUF are members of joint Hindu family and no outsider is there in the

partnership firm, therefore, treating the property in question belonging to

HUF, the suit can be filed and has rightly been decreed by learned trial

Court for the need of partnership firm belonging to HUF.

20. At this stage, learned counsel for the appellant/defendant/tenant

prays for some reasonable time to vacate the suit shops. As such, looking

to the period and nature of tenancy, in the interest of justice, about one

year time for vacating the suit shops is granted on the following

conditions:-

(i) The appellant/defendant shall vacate the disputed rented shops on

or before 30.08.2024.

(ii) The appellant/defendant 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 learned Court below.

(iii) The appellant/defendant shall not part with the suit shops to

anybody and shall not change nature of the same.

(iv) The appellant/defendant shall furnish an undertaking with regard

to the aforesaid conditions within a period of three weeks before the

learned Court below.

(v) If the appellant/defendant fails 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 appellant/defendant does not

vacate the suit shops on or before 30.08.2024 and creates any

obstruction, it/he shall be liable to pay mesne profits of Rs.500/- per day,

so also contempt of order/judgment of this Court.

(vii) It is made clear that the defendant/appellant shall not be entitled

for further extension of time after 30.08.2024.

21. With the aforesaid observation, the first appeal is hereby dismissed

and disposed off.

22. Interim pending application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL)

JUDGE

SN Digitally signed by SATTYENDAR NAGDEVE Date: 2023.09.20 14:26:16 +05'30'