Madhya Pradesh High Court
Manoj Kumar vs Suresh Kumar on 22 February, 2024
- 1 -
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 22ndOF FEBRUARY, 2024
SECOND APPEAL No. 182 of 2009
Between :-
MANOJ KUMAR S/O RAJARAM
SONKER, AGED ABOUT 32 YEARS, R/O
BINA DISTT SAGAR (MADHYA
PRADESH)
...APPELLANT
(BY SHRI K.N. FAKHRUDDIN - ADVOCATE)
AND
SURESH KUMAR S/O LAKHMI CHAND
JAIN, AGED ABOUT 45 YEARS, R/O
GANESH WARD BINA DISTT SAGAR
(MADHYA PRADESH)
....RESPONDENT
( BY SHRI ANAND NAYAK - ADVOCATE )
Reserved on 18.01.2024
Delivered on 22.02.2024
------------------------------------------------------------------------------------
- 2 -
This second appeal having been heard and reserved for
orders, coming on for pronouncement this day, this court
passed the following:
JUDGMENT
This Second appeal under Section 100 of Civil Procedure
Code (for brevity, CPC) has been filed by the appellant (hereinafter
referred to as "defendant") against the respondent (hereinafter
referred to as "plaintiff") against the impugned judgment and decree
dated 18.11.2008 passed by the Ist Additional District Judge, Khurai
District, Sagar in civil Appeal No.1-A/2008 confirming the Judgment
and decree dated 30.11.2007 passed by IInd Civil Judge, Class - II,
Bina District Sagar in Civil suit No. 90-A/2006 in relation to shop
situated in Bilgaiya ward Bina on main road malgodan road having
area of 6x17 feet (hereinafter referred to as 'suit shop').
2. Respondent/plaintiff has filed suit for permanent injunction
against the appellant/defendant Manoj that the defendant is the
landlord of suit shop and he is tenant in that shop and in order to
increase the rent of that suit shop for which plaintiff was not ready,
therefore, defendant/landlord tried to get vacated the suit shop by
taking recourse of illegal means, therefore, the plaintiff seeks the
relief of permanent injunction defendant landlord Manoj to restrained
him from vacating the plaintiff unlawfully from the suit shop.
3. Defendant/landlord Manoj by filing written statement denied
averments of plaintiff that he is trying to get the suit shop vacated by
using illegal means along with written statement to the
defendant/landlord has filed counter claim to the effect that plaintiff
- 3 -
is the tenant of him on the suit shop which is shown in map appended
with counter claim (hereinafter referred to as 'suit shop') on the rent
of Rs.500/- per month and tenancy is starts from the first date of
English Calendar and it is rented out for non residential purpose.
The landlord has 5 brothers and he himself is unemployed. First
elder brother is doing business selling of fruits and with the help of
other brothers defendant/landlord himself wish to start whole-sale
business of fruits and brokerage and for this purpose the suit shop is
needed. His need is bona fide and genuine but after giving the
assurance to vacate the suit shop plaintiff has denied to vacate the
same, hence, defendant prayed to and handover the vacant possession
of the suit shop.
4. Trial Court has framed as many as six issues in the case and
after examining the witnesses of both the parties found that the
plaintiff has proved his case while counter claim is not found
proved and therefore, trial court has issued the permanent injunction
in favour of tenant/plaintiff to restrict the defendant for vacating the
suit shop illegally.
5. The defendant landlord Manoj Kumar has filed first appeal
against judgment and decree of the trial court dated 30.11.2007. The
first appellate Court has allowed the appeal in part and the judgment
of trial court in respect of issuance of permanent injunction in favour
of plaintiff is rejected and affirm the dismissal of counter claim.
6. Hence, this second appeal is filed by the defendant landlord
Manoj Kumar has been admitted on the substantial questions of law
as stated below-
- 4 -
"1. Whether the courts below committed
error in dismissing the counter claim of the
appellant for eviction of the respondents
from the disputed premises on the ground of
Section 12(1)(f) of the M.P. Accommodation
Control Act, 1961, contrary to the admission
of respondent and the provisions of Section
58 of the Evidence Act."
7. It is submitted by the learned counsel for the
appellant/defendant Manoj Kumar that the suit was originally filed
by the plaintiff/respondent for permanent injunction against the
defendant/landlord/appellant Manoj and in that the
appellant/defendant has filed a counter claim for eviction against the
plaintiff u/S 12(1) of M.P. Accommodation Control Act, 1961
(hereinafter referred to as the 'Áct') for bonafide need of landlord
for starting his fruit business in suit shop. The appellant/defendant
denied the fact of forceful eviction of plaintiff.
8. Per contra it is submitted learned counsel of respondent that
the court below has not committed any error while dismissing the
counter claim of defendant/landlord and proper reasons for such
dismissal have been assigned by courts below which are not perverse
and liable to be set aside.
9. It is not disputed that the tenant/plaintiff is the tenant of
landlord/defendant Manoj kumar who is the owner of the suit shop
and is the tenant on the rent of Rs.500/- per month. Such tenancy
and rent of Rs.500 is admitted and it is also not in dispute that he is
the tenant of landlord Manoj Kumar since 1983-84.
- 5 -
10. It is deposed by Manoj Kumar (DW-1) in his statement that
his family consists of 5 brothers and he is unemployed and thus he
needs the suit shop for fruit business and brokerage. He is in bona
fide need of suit shop and for his fruit business and for that purpose
he is not having any alternate appropriate accommodation in Bina
City. He has filed counter claim in both cases against the tenant and
other tenant Om Prakash. The Suit shops having size 6 x 17 Sq. feet
also appropriate for his fruit business and brokerage. It is also stated
by defendant Manoj Kumar that in 2001 he told the plaintiff to
vacate the suit shop and plaintiff has given him assurance that he
will handover the vacant possession of the suit shop but in June,
2004 when plaintiff has denied to handover the vacant possession of
the suit shop then he has filed his counter claim.
11. In cross examination Manoj Kumar (DW-1) has remained
intact on his statements. He clarified that he has experience to run
the whole-sale fruit business, he used to sit in the fruit shops of his
friends Vinod and Raju Chouhan. Nothing found in the statement
this witness which shaken tender his testimony shaken.
12. Plaintiff has deposed before the trial court and stated that the
defendant and their brothers are doing business of fruits and he has
no time to do the business of brokerage (Adhat) but he admitted in
his cross examination defendant has no other shops except the suit
shop. He also admitted that the suit shop and other shops which are
in possession of tenants having the area of 6 x 17 Sq. feet each and if
the vacant possession of these shop obtained by defendant then it
would be a good place for plaintiffs' business. He also admitted in
cross examination that in para 12 that in 2001 defendant has came to
- 6 -
him and said to him to handover the vacant possession of the suit
shop and he told at that time to the defendant that when he will get
the other shop, he will handover the vacant possession of suit shop.
13. The admissions of plaintiffs in his cross examination clearly
established that the need of defendant of the suit shop is based on his
bona fide need and for that purpose he has 'no reasonably suitable
alternate accommodation.
14. The trial court and first appellate court on the basis of
incident is of 2001 has doubted the bona fide need of the defendant
and it is mentioned that by the courts below that if defendant had the
bona fide need the suit shop in 2001 or thereafter when he expressed
the need of suit shop to the plaintiff he ought to have filed the suit
for eviction against the plaintiff. But in 2004 when the plaintiff file a
suit for permanent injunction till then the defendant has not taken
pain to file the suit for eviction against the plaintiff. After filing the
suit by the plaintiff he has filed counter claim which does not
indicate the bona fide need.
15. Having regard to evidence on record, that in 2001 when
defendant expressed his need of suit shop before the plaintiff and
plaintiff has assured him that on obtaining other shop he will
handover vacant possession of suit shop, it appears that on such
assurance defendant has not filed any suit against the tenant
plaintiff, but when tenant plaintiff has filed the suit for permanent
injunction against the landlord and on the denial of plaintiff/tenant to
handover the vacant possession defendant has compelled to file cross
objection with written statement. Since the suit of the plaintiff was
pending before the court therefore, it is also not incumbent upon the
- 7 -
defendant to file separate suit for eviction and he has filed cross
objection simpliciter. The conduct of defendant/landlord does not
seem to be unnatural and does not indicate that his need of suit shop
is not genuine or not bona fide. Rather plaintiff himself has admitted
the bona fide need of suit shop of defendant, and that the defendant
has not in his possession any alternate accommodation for the
purpose of his fruit business and that the suit shop is reasonably good
for his business.
16. The other witness of plaintiff Pooran (DW-2) also admitted
in cross examination that defendant has no other accommodation in
Bina for starting his fruit business. He is not able to comment on
requirement of defendant for suit shop for the fruit business. It is
also settled law that plaintiff is best judge to the decide his need and
appropriateness of the accommodation.
17. On foregoing discussion and it is obvious that courts below
have erred in dismissing the counter claim of the defendant and to
pass a decree in favour of defendant of eviction of suit shop. The
findings of courts below in this regard are perverse and liable to be
set aside. The substantial questions of law thus is answered in
affirmative.
18. Resultantly, the counter claim filed by the
appellant/defendant is allowed and a decree of eviction is passed
while allowing this second appeal in favour of defendant/landlord by
allowing his counter claim as stated below -
- 8 -
1. The defendant shall handover the vacant possession of suit
shop within two months from the date of passing of this judgment
and decree to the defendant/landlord.
2. In the facts and circumstances of the case, the parties shall
bear their own costs.
(RAJENDRA KUMAR VANI)
JUDGE
Akanksha
AKANKSHA MAURYA
2024.02.26 13:30:54
+05'30'
