Madhya Pradesh High Court
Upendra Singh Chouhan vs Shri Ashok Kumar on 14 October, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2024:MPHC-JBP:51091
1 SA-1497-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 14th OF OCTOBER, 2024
SECOND APPEAL No. 1497 of 2024
UPENDRA SINGH CHOUHAN
Versus
SHRI ASHOK KUMAR
Appearance:
Shri Manish Kumar Verma - Advocate for appellant.
Shri Ashok Kumar Jain - respondent present in person.
JUDGMENT
This second appeal is by appellant/defendant/licensee in the suit
property situated in Jabalpur.
2. The case, in brief, is that plaintiff filed a suit for getting vacant
possession of the suit premises in Prem Nagar, Gupteshwar, Opposite Kamla
Gupta, Hospital. The suit was filed on 30.10.2017 and was registered as
C.S.No.449-A/2017. The suit was filed on the basis of licence deed dated
30.5.2015. The plaintiff leased out the suit property to the defendant on
certain terms and conditions as mentioned in the licence deed. It was alleged
by the plaintiff that material condition regarding not making material
changes in the building without prior permission was breached/violated. A
swimming pool was constructed in the premises, therefore, plaintiff issued a
notice for vacating the premises within 48 hours of receiving the notice and
meanwhile to pay damages at the rate, as claimed in the notice.
3. In reply of the defendant it was stated that building was in
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dilapidated condition and with oral permission and knowledge of the plaintiff
he (defendant) had spent more than Rs.5 lacs on repairs, therefore, if plaintiff
returns Rs.5 lacs then he would vacate the suit premises. The said reply has
been brought on record as Exhibit-P/2. Meanwhile, the plaintiff in the trial
Court moved before the Rent Controlling Authority, Jabalpur which was
registered as Case No.4-A/2019 [Ashok Kumar Jain Vs. Upendra Singh
Chouhan] wherein the non-applicant/Upendra Singh filed reply (Exhibit-P/5)
and in paragraph 16 thereof it has been stated as follows:-
"वा त वकता यह है क आवेदक ारा वादग त मकान वष 2016
अनावेदक को लाइसे स ड ड के आधार पर दया गया था उस समय
मकान अ यंत जजर हालत म था अनावेदक ारा उ भवन म
आवेदक क अनुमित से भवन के स दयीकरण म लगभग 5 लाख
पये खच कये गय।
4. The Rent Controlling Authority vide order dated 04.4.2021 fixed
the interim rent at the rate of Rs.45776/-. It is pertinent to note that during
pendency of this civil suit the plaintiff (Ashok Jain) moved an application
under Order 6 Rule 17 CPC seeking amended in the suit claiming that
defendant is his tenant. That application was rejected by the trial Court and
ultimately the said order of the trial Court came to be challenged by plaintiff
in M.P.No.3846/2021 [Ashok Jain Vs. Upendra Singh Chouhan]. It is also
pertinent to note that finding of the Rent Controlling Authority was
challenged by way of RCA No.103/2021 and by order dated 15.3.2022
which has been brought on record as Exhibit-P/7. The learned Court set aside
the finding of the Rent Controlling Authority regarding fixing of interim
rent.
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5. Learned Civil court dismissed the suit of the plaintiff (Ashok
Kumar Jain) vide judgment and decree dated 29.9.2023 passed in Civil Suit
No.449-A/2017. On an appeal by the plaintiff the learned first appellate
Court in Appeal No.345/2023 vide judgment dated 25.5.2024 allowed the
appeal directing the appellant/defendant to handover the vacant possession to
the plaintiff and pay damages at Rs.1 lac per month till handing over of
possession to plaintiff.
6. Now this second appeal by the defendant claiming that judgment
of the trial Court is bad in law. It has failed to appreciate that so called
licence deed is not proved. The suit should have been filed under the M.P.
Accommodation Control Act, 1961. It is further contended that by
appellant/defendant that no conditions were breached.
7. Considered the arguments and perused the records. Regarding the
fact that licence deed was not proved and also that it did not carry signature
of the defendant it is sufficient to observe that even though the licence deed
was not exhibited in Trial Court but the defendant in the suit premises is as a
licencee, as has been conceded by him in paragraph 16 of document
(Exhibit-P/5) and this fact has been considered by learned first appellate
Court also in paragraph 25, legal position is also that fact admitted by the
opposite party need not be proved by the plaintiff. Therefore, above ground
of the appellant/defendant fails. It is further seen that in trial Court on
06.2.2023 plaintiff (Ashok Kumar Jain) was present for deposition but
defendant's counsel sought time on the ground that he was busy in another
Court, therefore, case was adjourned. Thereafter, the case was adjourned
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many times for various reasons as recorded by the trial Court in different
order-sheets. It is seen that defendant's counsel sought time to cross-examine
plaintiff (Ashok Jain). Plaintiff (Ashok Jain) and his witness, namely,
Satyanarayan Tiwari who were ultimately cross-examined for 16.6.2023. The
plaintiff declared his evidence as closed and thereafter the case was fixed for
defendant's evidence on 11.7.2023. The defendant counsel closed his
evidence on 11-7-2023 and accordingly the case was fixed for final
arguments. The final arguments were ultimately heard on 19.9.2023 and
judgment was delivered on 29.9.2023. Therefore, when the defendant has not
even entered the witness box then this in the facts and circumstances of the
case is hardly a fit case for admitting this second appeal.
8. All the facts have been considered by the learned first appellate
Court and it has discussed the law also in proper perspective. There is no
substantial question of law on which this second appeal can be admitted.
9. Even otherwise, the jurisdiction of this Court to interfere with the
findings of fact under Section 100 of the Code of Civil Procedure is well
defined by catena of decisions of the Supreme Court. This Court cannot
interfere with the finding of fact until or unless the same is perverse or
contrary to material on record. [See: Narayan Rajendran and Anr. v.
Lekshmy Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul
Majeed and Others, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and
Antoher, (2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC
158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288,
Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7
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SCC 173 and Laxmidevamma and Others v. Ranganath and Others, (2015) 4
SCC 264] The concurrent findings of fact recorded by the courts below are
based on meticulous appreciation of evidence on record which by no stretch
of imagination can be said either to be perverse or based on no evidence.
10. In view of aforesaid, the appeal stands dismissed and judgment
& decree of the first appellate Court is affirmed.
(AVANINDRA KUMAR SINGH)
JUDGE
RM
