Madhya Pradesh High Court
Sanjeev Shrivastava vs Nagendra Kumar Varshney on 10 January, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 F.A. No.882/2013
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 10th OF JANUARY, 2025
FIRST APPEAL No.882 of 2013
SANJEEV SHRIVASTAV
Versus
NAGENDRA KUMAR VARSHNEY AND OTHERS
...................................................................................................................................................................
Appearance:
Shri A.K. Pandey, , Advocate for appellant.
Shri Ankit Saxena, Advocate for respondents.
..............................................................................................................................................................
JUDGMENT
This first appeal has been preferred by the appellant/defendant
challenging the judgment and decree dtd. 29.08.2013 passed by 9th
Additional District Judge, Bhopal in RCS No. 230A/2011 whereby trial
Court has decreed respondents/plaintiffs' suit for eviction of a flat-MIG 15
on the grounds under Section 12(1)(a) & (e) of the M.P. Accommodation
Control Act, 1961 (in short "the Act").
2. Facts in short are that the plaintiffs instituted a civil suit for eviction
on the grounds available under Section 12(1)(a), (d) & (e) of the Act with
the allegations that the house in question was given on rent of Rs.1900/-
p.m. to the defendant in the year 1992. It is alleged that despite service of
notice dtd. 27.04.2010 (Ex.P/19), the defendant did not pay rent and is in
arrears of rent after 01.06.2007. It is alleged that the defendant has not used
the house in question and kept it locked. Further, it is alleged that the flat in
question is bonafidely required by the plaintiff 1 for the need of married son
- plaintiff 2-Vaibhav Varshney and there is no other alternative
accommodation available in the township. With these allegations, the suit
was filed.
3. By filing written statement the defendant denied plaint allegations and
contended that he has paid up to date rent and the plaintiff 2 is not in need of
the suit accommodation and there is other alternative accommodation
available with the plaintiffs. It is also contended that the house in question is
still in use of the defendant. With these contentions, the suit was prayed to
be dismissed.
4. On the basis of pleadings of the parties, trial Court framed issues and
recorded evidence and upon due consideration of the same, decreed the suit
on the grounds available under Section 12(1)(a) & (e) of the Act vide
impugned judgment and decree dtd. 29.08.2013. Against which instant first
appeal has been filed.
5. Learned counsel for the appellant submits that trial Court has rightly
dismissed the suit on the ground under Section 12(1)(d) of the Act, however
committed illegality in passing decree of eviction on the grounds of arrears
of rent and bonafide requirement. He submits that no arrears of rent were
there on the date of filing of the suit and immediately after filing of the suit,
the defendant deposited the entire rent and is depositing the rent
continuously till now. He further submits that although the son of plaintiff 1-
Nagendra Kumar i.e. Vaibhav Varshney, the plaintiff 2 is residing with the
plaintiff, but there is sufficient accommodation available in the house known
as Man Sarovar Wala house, in which both the plaintiffs can reside and in
presence of alternative accommodation available with the plaintiffs, alleged
bonafide need cannot be said to be genuine. Hence the decree of eviction
passed on the grounds under Section 12(1)(a) & (e) of the Act is not
sustainable. With these submissions, he prays for allowing the first appeal
and for setting aside the impugned judgment and decree of eviction passed
by trial Court.
6. Per contra, learned counsel for the respondents/plaintiffs submits that
on the date of filing of suit there were arrears of Rs.68,400/- which were not
paid even after issuance of demand notice and even after filing of the suit.
He submits that neither within a period of one month after filing of the suit,
as required under Section 13(1) of the Act, the defendant deposited the rent
nor deposited the future rent continuously during pendency of the suit. He
submits that even in first appeal pending before this Court, the defendant has
not deposited monthly rent despite filing applications by the plaintiffs under
Section 13(6) of the Act. So far as the ground of bonafide requirement is
concerned, learned counsel submits that although there is a house owned by
the plaintiff 1, known as Man Sarovar wala house, but in that house there
are only two rooms, which are not sufficient for residence of the plaintiffs,
especially in the circumstances when the plaintiff 2 is a married person and
is having his independent family. He submits that taking into consideration
said aspect of the matter, trial Court has rightly decided the issue no.6
holding need of the plaintiff to be genuine and there being no perversity in
the findings recorded by trial Court, interference is not warranted in the
impugned judgment and decree of eviction. With these submissions he prays
for dismissal of the first appeal.
7. Heard learned counsel for the parties and perused the record.
8. In the instant first appeal following points for determination are
arising for consideration of this Court:-
"i. Whether non-compliance of mandatory provision contained in Section
13(1) of the Act is sufficient to confirm the decree of eviction passed by trial
Court on the ground of non-payment of arrears of rent despite service of
demand notice ?
ii. Whether in absence of any alternative accommodation available with the
plaintiffs, decree of eviction passed by trial Court on the ground of bonafide
need of plaintiff 2, a married son of the plaintiff 1, can be said to be illegal ?"
9. In the present case suit for eviction was filed with the allegations that
the defendant is in arrears of rent of Rs.64,400/- which were not paid by the
defendant despite issuance of demand notice dtd. 27.04.2010 (Ex.P/19).
Thereafter, instant suit was filed on 18.04.2011. Upon consideration of the
material evidence adduced by the parties, trial Court has held that although
the defendant has deposited some rent during the suit, but never deposited
the same as per provision contained in Section 13(1) of the Act.
10. After arguing at length, learned counsel for the appellant/defendant
has not been able to point out any perversity in the findings recorded by trial
Court about non-payment of rent by the defendant and has also not been
able to give the accounts regarding payment/deposit of rent in accordance
with the law even during pendency of instant first appeal. Resultantly, this
Court does not find any illegality in the findings recorded by trial Court
regarding decree of eviction passed on the ground of arrears of rent. In my
considered opinion non-compliance of mandatory provision contained in
Section 13(1) of the Act, is sufficient to confirm the decree of eviction
passed by trial Court especially in the circumstances when the defendant
did not deposit the arrears of rent within requisite period even after
issuance of demand notice and filing of suit.
11. Admittedly the house known as Mansarovar wala house is owned by
plaintiff 1-Nagendra Kumar in which two rooms, hall, kitchen and two
laterine and bathroom are there. Unrebutted statement of the plaintiff is that
in the family of plaintiffs, there are plaintiff 1-Nagendra Kumar, his wife,
the plaintiff 2-Vaibhav, his wife and children.
12. It is also admitted fact on record that plaintiff 2-Vaibhav Varshney is
owner of the rented house in question on the basis of Will executed by
Kamal Kumari and by way of document (Ex.P/22) his name has also been
mutated. Undisputedly, the disputed flat was in the name of Kamal Kumari
(mother of plaintiff 1 and grand-mother of plaintiff 2) and till now none of
the successors of Kamal Kumari has challenged the Will. It is well settled
that the tenant cannot challenge the Will. On one hand, after death of Smt.
Kamal Kumari on 10.01.1994, the plaintiff 1 is co-owner and on other hand
plaintiff 2 is owner of the house, who has no other alternative
accommodation except the house of plaintiff 1 known as Mansarovar wala
house and he being married person having wife and children appears to be in
need of the disputed flat of the possession of the defendant/tenant.
13. Looking to the enhanced need of the plaintiffs, who in total are about
6 members in the family, it cannot be said that the house known as
Mansarovar wala house having only two rooms, is sufficient for residence of
families of the plaintiffs.
14. In view of the aforesaid discussion, this Court does not find any
illegality in the findings recorded by trial Court on the ground of bonafide
requirement also.
15. Even upon asking, the Counsel for the appellant/defendant has denied
to take time for vacating the flat/house in question, therefore, there is no
question of granting time to vacate the flat/house.
16. Resultantly, declining interference in the impugned judgment and
decree of eviction passed by trial Court, first appeal fails and is hereby
dismissed.
17. The appellant/defendant shall bear his cost as well as the cost of
respondents. Counsel fee is quantified as Rs.10,000/-.
18. Miscellaneous application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
KPS
Date: 2025.01.15 15:09:53 +05'30'
