Madhya Pradesh High Court
Balraj Aswani vs Darshan Gidwani on 12 August, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:37816
1 SA-439-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 12th OF AUGUST, 2025
SECOND APPEAL No. 439 of 2024
BALRAJ ASWANI
Versus
DARSHAN GIDWANI
Appearance:
Shri Shobitaditya - Advocate for the appellant.
Shri Ashok Kumar Chakravarti - Advocate for respondent.
ORDER
This second appeal has been preferred by the
appellant/defendant/tenant challenging the judgment and decree dated
08.01.2024 passed by 3rd District Judge, Bhopal in RCA No.09/2023
reversing the judgment and decree dated 30.11.2022 passed by 11th Civil
Judge Senior Division, Bhopal in Civil Suit No.536-A/2014, whereby trial
Court dismissed the respondent/plaintiff's suit for eviction filed on the
grounds under Section 12(1)(a)&(b) of the M.P. Accommodation Control
Act, 1961 (in short 'the Act') and upon filing civil appeal, first appellate
Court has decreed the suit on both the grounds available under Section 12(1)
(a) & (b) of the Act.
2. Learned counsel for the appellant/defendant submits that trial Court
has upon due consideration of the entire material available on record rightly
dismissed the suit on both the grounds, but first appellate Court has
committed an illegality in decreeing the suit on both the grounds. He submits
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that alleging the defendant to be in arrears of rent w.e.f. April 2007, the
plaintiff by issuing notice dated 29.01.2014 (Ex.P/2) demanded arrears of
Rs.39,300/- and in turn the defendant by sending reply dated 15.02.2014
(Ex.D/2) paid an amount of Rs.46,200/-through demand draft, therefore,
there was no cause of action to file the suit on the basis of demand notice
dated 29.01.2014 (Ex.P/2) and without considering this aspect of the matter,
first appellate Court has committed an illegality in calculating arrears of rent
on its own wrong assumptions and decreed the suit. He submits that even in
presence of the findings recorded by first appellate Court, the suit could not
have been decreed on the ground under Section 12(1)(a) of the Act.
3. So far as the decree of eviction passed by first appellate Court on
the ground under Section 12(1)(f) is concerned, learned counsel for the
appellant submits that the shop was taken on rent for doing Hardware
business and still the defendant is doing Hardware business in the shop and
without there being any cogent and reliable evidence available on record,
regarding sub letting of shop to Ms. Anita Jaiswal W/o Jitendra Jaiswal as
well as to Jitendra Jaiswal and placing reliance on the documents, which
were not exhibited in evidence before trial Court, first appellate Court has
committed an illegality in decreeing the suit on the ground of sub letting. He
submits that because the defendant is still doing the business of Hardware,
therefore, trial Court had rightly dismissed the suit but first appellate Court
has committed an illegality in decreeing the suit. With these submissions, he
prays for admission of the second appeal.
4. Learned counsel appearing for the respondent/plaintiff supports the
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impugned judgment and decree passed by first appellate Court and prays for
dismissal of the second appeal.
5. Heard learned counsel for the parties and perused the record.
6. From perusal of record, it is clear that notice was issued on
29.01.2014 (Ex.P/2) demanding arrears of Rs.39,300/-, and reply dated
15.02.2014 (Ex.D/2) shows that before filing the suit and within a period of
two months from the date of service of notice (Ex.P/2), the defendant paid an
amount of Rs.46,200/-. Although, first appellate Court has taken into
consideration the aforesaid aspect of the matter, but has not considered its
effect on the cause of action accrued to the plaintiff for filing the suit for
eviction on the ground under Section 12(1)(a) of the Act, so prima facie the
findings recorded by first appellate Court and consequent decree of eviction
on the ground under Section 12(1)(a) of the Act does not appear to be legal
and executable.
7. As the suit was filed on two grounds available under Section 12(1)
(a)&(b) of the Act and first appellate Court has decreed the suit on the
ground of sub letting available under Section 12(1)(b) of the Act also,
therefore, legality of the findings in respect of ground of sub letting recorded
by first appellate Court, is also required to be considered.
8. From the judgment and decree passed by trial Court, it is clear that
trial Court has only in one paragraph of its judgment i.e. paragraph 19,
considered the issue no.3 framed in respect of the ground of sub letting and
on the premise that the suit shop was given on rent for Hardware business in
the year about 1987 by husband of plaintiff and the defendant is still doing
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the business of Hardware, therefore, refused to pass decree of eviction on the
ground of sub letting.
9. In the present case, the question of sub letting arose during the
period from the year 2001 to 2015, which has been considered by first
appellate Court while considering the points for determination No. Ga &
Gha, from paragraphs 48 to 62 of its judgment, wherein it has been held that
the defendant had sublet the shop to Anita Jaiswal W/o Jitendra Jaiswal as
well as Jitendra Jaiswal for Liquor business.
10. With regard to the plea of sub letting, the defendant has tried to
say in para 3 of his written statement that he himself was carrying out retail
outlet of foreign Liquor and similarly in paragraphs 2, 6, 7 & 9 of his
statement, Balraj Aswani (DW-1) has stated that he himself was carrying out
the retail outlet of foreign Liquor, however despite availability he has not
produced the Liquor licence.
11. First appellate Court has considered the submissions made on
behalf of defendant to the effect that in the suit shop, he himself started
business of Liquor, but in absence of any licence produced by the defendant
for doing the business of Liquor by himself, held that the shop was given by
defendant for Liquor business to Anita Jaiswal and Jitendra Jaiswal.
Apparently, in the license issued in the name of Anita Jaiswal and Jitendra
Jaiswal, name of owner of shop is shown as Balraj Aswani but no reasonable
explanation has been given by the defendant in that regard.
12. After arguing at length, learned counsel for the appellant has not
been able to point out any illegality in the findings recorded by first appellate
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Court from paragraphs 48 to 62 of the impugned judgment.
13. It is also clear from the judgment of trial Court that it has not
considered the entire material available on record and in a cursory manner
decided the issue no.3 only in one paragraph containing 25 lines, which in
the light of discussion made by first appellate Court in paragraphs 48 to 62
of its judgment, cannot be said to be legal.
14. In view of the aforesaid discussion, in my considered opinion first
appellate Court does not appear to have committed any illegality in
decreeing the suit on the ground available under Section 12(1)(b) of the Act.
15. As this Court has declined to interfere in the findings recorded by
first appellate Court on the ground of sub letting, therefore, the second
appeal fails and is hereby dismissed.
16. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
SN
