Madhya Pradesh High Court
Kalloo Ram vs Prem Bai on 28 August, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 28th OF AUGUST, 2025
SECOND APPEAL No. 382 of 2006
KALLOO RAM AND OTHERS
Versus
PREM BAI AND OTHERS
Appearance:
Shri Aditya Sharma - Advocate for the appellants.
Shri Sanjay Agrawal - Senior Advocate with Ms. Ankita Singh - Advocate for the
respondents.
JUDGMENT
This second appeal has been preferred by the appellants/plaintiffs
challenging the judgment and decree dated 18.11.2005 passed by District
Judge, Katni in Civil Appeal No.12-A/2002 affirming the judgment and
decree dated 08.05.2001 passed by First Civil Judge Class I, Katni in Civil
Suit No.34-A/1999, whereby Courts below have concurrently dismissed
the original plaintiff-Kalloo Ram's suit for eviction filed on the grounds of
defaults in making payment of rent and bonafide requirement of his son-
Rajkumar Jain available under Section 12(1)(a)&(f) of the M.P.
Accommodation Control Act, 1961 (in short "the Rent Act").
2. Facts in short are that the plaintiff-Kalloo Ram had instituted a
suit for eviction of the disputed/rented shop against the original defendant-
Ganesh Prasad (now dead, through LRs), with the allegations that
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defendant is tenant in the suit shop on rent of Rs.78/- per month and has
not paid monthly rent w.e.f. 01.07.1978. It is alleged that the plaintiff is in
need of the shop for starting business of utensils by his major son-
Rajkumar, which being situated on the ground floor of main market road,
is suitable for starting the said business and the plaintiff or his son
Rajkumar has no other suitable accommodation of his own in the township
of Katni. On inter alia allegations the suit was filed.
3. The defendant appeared and filed written statement denying the
plaint allegations and contended that the defendant is not in arrears of rent
and the plaintiff is also not in bonafide need of the shop for starting
utensils' business by his son-Rajkumar. It is contended that entire rent upto
July, 2000 has already been deposited in the Court. By amending the
written statement, it is also contended that the plaintiff's son-Rajkumar is
already doing business in the name and style "Siddharth Dresses" and does
not require the suit shop for the alleged business and there are other shops
also available with the plaintiff in the township of Katni. On inter alia
contentions the suit was prayed to be dismissed.
4. On the basis of pleadings of the parties, trial Court framed issues
and recorded evidence of the parties. In support of his claim the plaintiff
examined himself-Kalloo Ram (PW-1), Rajkumar Jain (PW-2) and
submitted documentary evidence (Ex.P-1A). The defendant also examined
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Murlidhar Mittal (DW/1), Manohar (DW/2), Madan Mohan Dubey
(DW/3), S.P. Sinha (DW/4), Rajesh Kumar (DW/5), Raghunandan Goyal
(DW/6) & Sawal Das Gattani (DW/7) and produced documentary evidence
(Ex.D-1 to D-27). Trial Court, after hearing arguments of the parties and
taking into consideration the fact that during pendency of suit, son of
plaintiff namely Rajkumar Jain has started business in the name and style
'Siddharth Dresses', dismissed the suit by holding that the need of
plaintiff's son is not bonafide.
5. Against the judgment and decree passed by trial Court, the
plaintiff preferred appeal. During the pendency of regular civil appeal
plaintiff-Kalloo Ram had died, therefore, his legal heirs (including the son-
Rajkumar) were substituted in the suit. After hearing the parties, first
appellate Court also affirmed the findings recorded by trial Court and
dismissed the appeal vide impugned judgment and decree dtd.18.11.2005.
Against the judgment and decree passed by Courts below, second appeal
was preferred by the appellants/plaintiffs which was admitted for final
hearing on 25.07.2007 on the following substantial question of law :-
"Whether the suit of plaintiff for eviction under Section 12(1)(f) of M.P.
Accommodation Control Act can be dismissed only on the ground that
Rajkumar Jain is carrying on the business in the name and style of
"Siddharth Dresses" in a shop without recording the finding whether the
said shop is owned by the plaintiff ?"
6. Learned counsel for the appellants/plaintiffs submits that in fact
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the business of 'Siddharth Dresses' was being carried out by another son of
Kalloo Ram namely Ajay Kumar Jain in a shop allotted to him and only
the business of 'Siddharth Dresses' came in the ownership of Rajkumar
Jain and not the shop, which was allotted to Ajay Kumar Jain. In fact the
shop in which the business of 'Siddharth Dresses' was being carried out
does not belong to Rajkumar Jain, but it belongs to Ajay Kumar Jain,
which fell in his share in the oral family partition, therefore, Courts below
have committed an illegality in dismissing the suit by holding that the need
of Rajkumar Jain is not bonafide. In support of his submissions, he placed
reliance on the decisions of Hon'ble Supreme Court in the case of Prativa
Devi (Smt) vs. T.V. Krishnam, (1996) 5 SCC 353; Kanhaiya Lal Arya vs.
M.D. Ehshan & Ors, 2025 INSC 271; Murlidhar Aggarwal (D.) Thr. His
LR. Atul Kumar Aggarwal vs. Mahendra Pratap Karan (D.) Thr. LRs. and
ors., AIR 2025 SC 2263; as well as of this Court in the case of Santosh
Kumar Jain and another vs Smt. Krishna Devi (Dead) thr. LRs Ram
Jhudele and another in S.A.No.1843/2007 decided on 16.07.2025 (at
Jabalpur).
7. Learned counsel appearing for the respondents supports the
impugned judgment and decree passed by Courts below and prays for
dismissal of the same with the further submissions that both the Courts
below after having considered the entire oral and documentary evidence
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available on record rightly dismissed the suit by holding that the need of
the plaintiff's son-Rajkumar Jain is not bonafide and in absence of any
evidence in rebuttal to the oral and documentary evidence adduced by the
defendants, the concurrent judgment and decree passed by Courts below
are not liable to be interfered with within the limited scope of second
appeal provided under Section 100 of CPC. In support of his submissions,
he placed reliance on the decisions of Hon'ble Supreme Court in the case
of Hasmat Rai and another vs. Raghunath Prasad, (1981) 3 SCC 103;
Banarsi Devi Jain vs. M.P. Transport Company and another, (2008) 2
MPLJ 155; Gayatri and others vs. Ashish Kumar, (2010) 3 MPLJ 103
and Ashok Kumar Dureja vs. Rajendra Kumar Jain, (2017) 4 MPLJ 619.
8. Heard learned counsel for the parties and perused the record.
9. Initially the suit was filed for eviction on the grounds of defaults
in making payment of monthly rent as well as bonafide requirement of the
business by his son available under Section 12(1)(a)&(f) of the Rent Act,
which has been dismissed by both the Courts below, but the counsel for the
appellants submits that even before First appellate Court the ground under
Section 12(1)(a) of the Rent Act was not pressed, therefore, no substantial
question of law was formulated by this Court and he is pressing only the
ground of bonafide requirement available under Section 12(1)(f) of the
Rent Act. In the present case, there is no dispute about relationship of
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landlord and tenant in between the plaintiff and defendant.
10. Originally the suit was filed by the plaintiff-Kalloo Ram with the
allegation that the suit shop is required by his son-Rajkumar for utensils'
business. It is clear from the record that the business of 'Siddharth
Dresses' was being carried out by Rajkumar's brother Ajay Kumar Jain,
and during pendency of suit the business of 'Siddharth Dresses' came in
the ownership and possession of Rajkumar Jain. The counsel submits that
aforesaid temporary event, is not sufficient to dismiss the suit, because the
suit shop has fallen in the share of plaintiff and the shop of the 'Siddharth
Dresses' having fallen in the share of brother Ajay Kumar Jain, the
plaintiff-Rajkumar Jain is still in bonafide need of the suit shop.
11. From the record it is clear that the plaintiff declared his evidence
closed on 20.09.1995 and suit was fixed for defendant's evidence and
remained pending upto 15.10.1999 with the same status. On 21.10.1999
the defendant filed applications under Order 13 Rule 2 of CPC and Order 6
Rule 17 of CPC, which were not replied by the plaintiff and were allowed
on 22.10.1999. Again applications under Order 13 Rule 2 of CPC and
Order 6 Rule 17 of CPC were filed by the defendant, which were not
opposed by the plaintiff and were allowed by the Trial Court on
12.01.2000. Thereafter, on 08.03.2000 the plaintiff filed applications under
Order 6 Rule 17 of CPC and Order 13 Rule 2 of CPC which were not
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replied by the defendant, however were allowed by Trial Court on
16.03.2000.
12. On 15.04.2000 the defendant again filed applications under
Section 65 of the Evidence Act, Order 6 Rule 17 of CPC and Order 13
Rule 2 of CPC, which were also not replied by the plaintiff, however two
applications were allowed by Trial Court on 01.05.2000, keeping the
application under Section 65 of the Evidence Act pending. Another
application under Order 13 Rule 2 of CPC filed by the plaintiff was also
allowed on 18.07.2000 and case was fixed for 20.07.2000. On 28.07.2000
the plaintiff filed an application under Order 18 Rule 17 of CPC, which
was allowed on 31.7.2000 permitting the plaintiff to recall the plaintiff
Kalloo Ram (PW-1). On 28.08.2000 another application filed by the
plaintiff under Order 13 Rule 2 of CPC was also allowed. Since on
29.08.2000 and 30.08.2000 the plaintiff did not appear to adduce evidence,
hence Trial Court closed plaintiff's right to adduce evidence.
13. Meaning thereby in rebuttal to the defendant's case proposed in
the pleadings regarding acquisition of 'Siddharth Dresses' by Rajkumar
Jain, the plaintiff did not adduce any evidence and this fact has been
considered by first appellate Court in paragraph 14 of the impugned
judgment by observing that the plaintiff-Kalloo Ram (PW-1) or Rajkumar
Jain (PW-2) have not said anything in their oral testimony that Rajkumar
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has taken shop of 'Siddharth Dresses' from Ajay Kumar Jain temporarily
or that after vacation of suit shop, Rajkumar Jain shall start business in the
suit shop.
14. It is surprising that even after giving sufficient opportunities, the
plaintiff-Kalloo Ram or his son Rajkumar Jain, for whose bonafide need
the suit was filed, did not come in the witness box to prove their case and
to rebut the case of the defendant, in the light of amended pleadings.
15. In presence of the aforesaid situation, both the Courts below
have appreciated oral and documentary evidence in detail in paragraphs 6
to 22 (Trial Court) and in paragraphs 10 to 16 (First Appellate Court) and
dismissed the suit. Upon due consideration of the entire oral and
documentary evidence available on record, this Court does not find any
illegality or perversity in the concurrent judgment and decree passed by
Courts below.
16. The substantial question of law formulated by this Court is in the
manner as to whether shop of the business of 'Siddharth Dresses' is owned
by the plaintiff or not, but here in the present case there is no dispute about
ownership of the shop, in which the business of 'Siddharth Dresses' is
being carried out, because the plaintiff-Kalloo Ram was owner of the
entire property including the disputed/rented shop and the shop of
'Siddharth Dresses' and there is no evidence on record to prove partition of
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the property owned by Kalloo Ram nor there is any evidence that partition
was effected in the lifetime of Kalloo Ram and the suit shop and shop of
'Siddharth Dresses' fell in share of plaintiff and Ajay Kumar.
17. As such, the substantial question of law formulated by this Court
does not arise in the present case and the decisions relied upon by learned
Counsel for the appellants do not provide any help to the appellants.
18. Resultantly, declining interference in the judgment and decree
passed by Courts below, the second appeal fails and is hereby dismissed.
19. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
SN
