Madhya Pradesh High Court

D.Sahu vs Smt.Pushpa Devi Samaiya on 2 May, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

     1                                                               C.R. No.229/2009

         IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                                 BEFORE
         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                        ON THE 2nd OF MAY, 2024

                    CIVIL REVISION No.229 of 2009

         BETWEEN:-
         D. SAHU, S/O SHRI PANNA LAL SAHU, AGED
         ABOUT 58 YEARS, R/O ONAMA, SAMDARIYA,
         NAGAR, KANCHGHAR, JABALUPR (M.P.)

                                                        .....PETITIONER
         (BY KUMARESH PATHAK, ADVOCATE)

         AND

1.       KU. PUSHPA DEVI SAMAIYA, D/O SHRI
         KAPOOR CHAND SAMAIYA, AGED ABOUT 56
         YEARS, R/O BESIDES LAL BUILDING, GARHA
         PHATAK, JABALPUR

2.       SHRI KAPOOR CHAND SAMAIYA, (ADULT) R/
         R/O BESIDES ALAL BUILDING, GARHA
         PHATAK, JABALPUR (M.P.)

3.       SHRI SURESH KUMAR SANGHI, S/O SHRI
         MANGILALSANGHI, AGED ABOUT 68 YEARS,
         R/O-1425, WRIGHT   TOWN,  JABALPUR
         (MADHYA PRADESH)

                                                     .....RESPONDENTS
         (BY SHRI B.P. TIWARI AND MS. PRIYANKA
         TIWARI, ADVOCATES FOR RESPONDENTS 1-2)


...................................................................................................................................................................

         This revision coming on for admission, this day, the court passed
the following:
                                  ORDER

This civil revision has been preferred by the defendant 2/petitioner challenging the order dtd. 18.04.2009 passed by 2nd Additional District Judge, Jabalpur in MCA No.3/2009 affirming the order dtd. 03.12.2008 passed by 11th Civil Judge Class-I, Jabalpur in MJC No.1/2008 whereby petitioner/defendants 2's application under Order 9 Rule 13 CPC has been dismissed by Courts below.

2. Short facts of the case are that a suit for eviction was filed by respondents 1-2/plaintiffs against the respondent 3/defendant 1 and petitioner/defendant 2 on the grounds available under Section 12(1)(a)

(b)&(g) of the M.P. Accommodation Control Act, 1961 (in short 'the Act') alleging that defendant 1 is tenant in the suit shop and has not paid rent and sublet the shop to the defendant 2. It is alleged that the defendant 1 is in arrears of rent since 01.11.2000 and despite service of notice of demand has not paid the rent nor has vacated the suit shop. It is also alleged that the shop is in dilapidated condition and cannot be repaired without getting vacated from the defendants. With the aforesaid allegations, the suit was filed.

3. Upon service of summons, defendants 1-2 appeared and filed separate written statement(s) denying the plaint allegations. The defendant 1 alleged that he has already paid entire arrears of rent and the defendant 2 himself is tenant in the shop, however denying all other allegations of the plaint, prayed for dismissal of the suit.

4. Defendant 2 also filed his written statement and contended that although previously the defendant 1 was tenant in the shop but after vacation of shop by defendant 1, the same was given on rent to the defendant 2 in the year 1996 and since thereafter, he is paying rent regularly and has paid rent upto December, 2000. The plaintiffs wanted to

get monthly rent of Rs.600/- p.m., which was not aggreed by defendant 2 and the rent sent to the plaintiffs @ Rs. 250/- p.m. was not accepted by them. With these submissions, the suit was prayed to be dismissed.

5. After framing of issues by trial Court, the plaintiffs in support of their case pleaded in plaint, adduced evidence. The defendants also cross examined the plaintiffs' witnesses. Thereafter defendant 1 examined himself, who was cross examined by the plaintiffs but thereafter both the defendants did not appear and were proceeded exparte. Resultantly, on the basis of material available on record and taking into consideration the admissions of defendant 1 made by him in his testimony regarding subletting of shop by him to the defendant 2, trial Court decreed the suit on all the grounds vide judgment & decree dtd. 13.03.2006.

6. Thereafter, on 12.03.2007, the defendant 2 only preferred an application under Order 9 Rule 13 CPC alongwith application under Section 5 of the Limitation Act. After hearing the parties, the same was dismissed by trial Court on 03.12.2008 holding it to be barred by limitation. Upon filing miscellaneous appeal, order of trial Court was affirmed by appellate Court vide order dt. 18.04.2009. Against which present civil revision has been filed by defendant 2.

7. Learned counsel for the petitioner/defendant 2 submits that Courts below have committed illegality in dismissing the application under Order 9 Rule 13 CPC. He submits that duly engaged counsel of the defendant 2 did not properly inform about proceeding of the suit but wrongly informed that the plaintiffs' suit has been dismissed in default, therefore, he did not contact to the counsel and as such, there was no reason for filing the application under Order 9 Rule 13 CPC within time. With these submissions, learned counsel submits that there being

sufficient cause for non appearance of petitioner before the trial Court, the application under Order 9 Rule 13 CPC ought to have been allowed and prays for allowing the civil revision.

8. Learned counsel appearing for the respondents 1-2/plaintiffs supports the impugned orders passed by Courts below and prays for dismissal of civil revision.

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

10. Undispuptedly, after closure of evidence of the plaintiffs and after adducing evidence by the defendant 1, the defendant 2 disappeared and was proceeded exparte, who by way of filing written statement alleged himself to be tenant in the shop with the further contention that he has already paid rent upto December, 2000, but in respect of the alleged wrong information by the counsel about dismissal of the plaintiffs' suit itself, no evidence has been adduced by the petitioner in support of the application under Order 9 Rule 13 CPC nor any affidavit of the said counsel is filed. It is also an undisputed fact that after filing of the civil revision no rent has been paid by defendant 2/petitioner. There is no evidence also available on record that the defendant 2 paid any rent after December, 2000.

11. In view of the aforesaid, learned Courts below after having considered the contentions of the parties and in absence of any sufficient cause, rightly dismissed the application under Section 5 of the Limitation Act for condonation of delay in filing of the application under Order 9 Rule 13 CPC and consequently also dismissed the application under Order 9 Rule 13 CPC.

12. Upon perusal of the entire record available, this Court does not find any illegality in the orders passed by Courts below rejecting the application under Order 9 Rule 13 CPC.

13. At this stage, learned counsel for the petitioner/defendant 2 prays for six months' time i.e. upto 31.10.2024 to vacate the tenanted premises/shop, which has not been opposed by learned counsel appearing for the respondents 1-2/plaintiffs.

14. In view of the aforesaid, in the interest of justice, time upto

31.10.2024 for vacating the tenanted shop is granted on the following

conditions:-

(i) The petitioner/defendant 2 shall vacate the tenanted

premises/shop on or before 31.10.2024.

(ii) The petitioner/defendant 2 shall regularly pay rent to the

respondents/landlord and shall also clear all the dues, if any, including

the costs of the litigation, if any, imposed by Courts below.

(iii) The petitioner/defendant 2 shall not part with the tenanted

premises/shop to anybody and shall not change nature of the same.

(iv) The petitioner/defendant 2 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 petitioner/defendant 2 fails to comply with any of the

aforesaid conditions, the respondents 1-2/plaintiffs shall be free to

execute the decree forthwith.

(vi) If after filing of the undertaking, the petitioner/defendant 2

does not vacate the suit shop on or before 31.10.2024 and creates any

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

also contempt of order of this Court.