Madhya Pradesh High Court

Santosh Kumar Jain vs Smt.Krishna Devi on 16 July, 2025

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

    1                                                             S.A. No.1843 of 2007

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

                       ON THE 16th OF JULY, 2025

                   SECOND APPEAL No.1843 of 2007

            SANTOSH KUMAR JAIN AND ANOTHER
                          Versus
   SMT. KRISHNA DEVI (DEAD) THR.LRS RAM JHUDELE AND
                        ANOTHER
...................................................................................................................................................................
Appearance:
   Shri Sharad Gupta, Advocate for appellants.
  Shri N.K. Mishra, Advocate for respondent 1(a).
  None for the respondent 1(b) though served.
..............................................................................................................................................................

                                JUDGMENT

This second appeal has been preferred by the appellants/plaintiffs

challenging the judgment and decree dtd. 03.09.2007 passed by District

Judge, Katni in Civil Appeal No.18A/2006 affirming the judgment and

decree dtd.13.02.2006 passed by 2nd Civil Judge Class-II, Katni in Civil

Suit No.103A/2004 whereby Courts below have concurrently dismissed

the plaintiffs' suit for eviction filed on the grounds available under

Section 12(1)(a), (b) & (f) of the M.P. Accommodation Control Act, 1961

(in short "the Act") in respect of the rented suit shop.

2. In short the facts are that the plaintiffs had instituted a suit for

eviction of the suit shop admeasuring about 8.5'x30' with the allegations

that the plaintiffs are owners and landlords of the shop and originally

their mother Puttibai inducted the defendant as tenant on rent of Rs.600/-

per month and at present the rate of rent is Rs.700/- per month. It is

alleged that the defendant has not paid rent w.e.f. 01.09.2003 in spite of

service of demand notice. It is also alleged that the defendant took the

shop for her business, but she without taking prior permission of the

plaintiff, sublet it to Ram Jhudele and at present he is doing business in

the shop. It is also alleged that shop is needed for business of the plaintiff

2-Anurag Jain, who wants to do kirana business in the shop and as he is

already doing the same business with plaintiff 1-Santosh Kumar in rented

shop, therefore, is having experience. Except the suit shop there is no

other alternative accommodation available with the plaintiffs in the

township of Katni. On inter alia allegations, the suit was filed for

eviction.

3. The defendant appeared and filed written statement and in

paragraph 1 & 2 of written statement, specifically admitted that the

plaintiffs are owners of the shop and she is their tenant on rent of

Rs.700/- per month. It is contended that the defendant is not in arrears of

rent and has also not sublet to anybody because she herself is doing

business in the shop. It is also contended that the plaintiffs are already

doing business in another shop available with them and with a view to get

vacated the shop, the suit has been instituted, which is also not suitable

for the plaintiffs' kirana business. In paragraph 10 of the written

statement, it is contended that there are four shops in the building of the

suit shop, out of them in one shop the plaintiff is carrying out his business

and one shop is lying vacant. 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. The plaintiffs in support of their

case examined Anurag Kumar (PW/1), Surendra Kumar Jain (PW/2),

Dilip Soni (PW/3) and produced documentary evidence (Ex.P/1 to P/7).

In rebuttal the defendant also examined her son-Ramchandra Jhudele

(DW/1), Nirmal Kumar Tamrakar (DW/2), Pradeep Kumar Jain (DW/3)

and produced documentary evidence (Ex.D/1 to D/3).

5. After hearing the parties, trial Court dismissed the plaintiffs' suit

on all the three grounds vide judgment and decree dtd. 13.02.2006. Upon

filing civil appeal, first appellate Court has also affirmed the judgment

and decree of trial Court vide its impugned judgment and decree dtd.

03.09.2007 and at the same time dismissed the plaintiffs' application filed

under Order 41 Rule 27 of CPC.

6. Against the aforesaid judgment and decree passed by Courts below,

instant second appeal was preferred by the appellants/plaintiffs, which

was admitted for final hearing on 16.09.2015 on the following substantial

questions of law:-

"(1) Whether the courts below erred in law in not accepting the ground of eviction under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961, when the bonafide need pleaded by the plaintiffs was legally made out? (2) Whether the lower appellate court illegally rejected the application under Order 41 Rule 27 C.P.C. filed by the plaintiffs?

(3) Whether the ground of eviction under Section 12(1)(b) was legally made out and the courts below erred in law in refusing to grant decree for eviction of the defendant on the ground of sub-letting or parting with possession without the written permission of the landlords?"

7. At the outset, learned counsel for the plaintiffs/appellants submits

that in the light of concurrent findings of facts to the effect that

Ramchandra Jhudele is son of defendant-Smt. Krishna Devi, therefore

ground of sub-letting is not made out and further in view of the fact that

original defendant has died during pendency of second appeal, therefore,

he is not pressing the substantial question of law no. 3 or the ground of

eviction available under Section 12(1)(b) of the Act. As such, this Court

is not required to decide the substantial question of law no. 3.

8. Learned counsel for the appellants submits that as has been pleaded

by the defendant and found proved by learned Courts below, there are

four shops originally owned by plaintiffs' mother-Puttibai who has four

sons. He submits that the plaintiffs have come with the specific case that

they are owners of the suit shop and in support of their case, a document

showing the number of suit shop to be 93, so recorded in the name of

plaintiffs, was filed before trial Court as Ex.P/7 and in the light of clear

admissions made in paragraph 1 of the written statement, it is clear that

the plaintiffs are owners of the shop no.93 and the defendant is their

tenant, therefore, there was no requirement to show non availability of

other three shops, which are owned by their other brothers and mother-

Puttibai. He submits that shop no.91 is owned by brother Surendra Jain;

shop no.92 is owned by brother Anil Kumar Jain and shop no.90

remained in the ownership of mother-Puttibai. Because of raising dispute

by the defendant after filing written statement and with a view to prove

allotment of the aforesaid shops long before filing of the suit in the year

2004, documents of the year 1996-97 showing allotment of the shops

were filed before first appellate Court along with application under Order

41 Rule 27 CPC, which clearly show that the plaintiffs are exclusive

owners of the disputed shop no. 93 and undisputedly they are doing

business in the shop no.91 allotted to brother-Surendra Kumar Jain. There

is also no dispute that in the shop no. 92 allotted to Anil Kumar Jain,

tenants Ratanchandra Rakesh Kumar are doing business and in the shop

no.90 allotted to mother-Smt. Puttibai, brother Anil Kumar Jain is doing

business and in the shop no.93 allotted to the plaintiffs, the defendant is

in possession. Learned counsel submits that both the Courts below have

on the premise that the plaintiffs are already doing business in the shop

no.91 owned by family members and there is another shop available in

the family, in which Anil Kumar is doing business, dismissed the suit,

that too without taking into consideration the explanation given by

plaintiff-Anurag Kumar (PW/1) in paragraph 6 of his statement. He

submits that there being no other evidence available on record rebutting

the case of the plaintiffs, Courts below have committed illegality in

dismissing the suit without taking into consideration the available number

of shops, as against four brothers. With these submissions, he prays for

allowing the second appeal.

9. Learned counsel appearing for the respondent 1(a) submits that

both the Courts below upon due consideration of the material available on

record, have rightly dismissed the suit. He submits that in presence of the

findings regarding availability of alternative accommodation with the

plaintiffs in which they are already doing business, Courts below have not

committed any illegality in dismissing the suit. With these submissions,

he prays for dismissal of the second appeal.

10. No one is appearing on behalf of the respondent 1(b), though

served, however, he being one of the sons of original defendant (now

dead), his presence is otherwise not necessary.

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

Substantial Questions of law no. 1 & 2.

12. In view of the aforesaid narration of facts, it is clear that there are

four shops available in the family of plaintiffs bearing no. 90, 91, 92 &

93. Although there is no description of the aforesaid shops in the plaint,

but the plaintiffs have come with the specific case that the suit shop is

owned by them and this fact has been admitted clearly in paragraph 1 of

the written statement, meaning thereby there was no dispute available on

record that the plaintiffs are owners of the disputed/rented shop and

defendant is their tenant in the shop.

13. As the defendants have taken plea that there are other alternative

accommodations available with the plaintiffs, therefore, both the Courts

below have considered oral evidence available on record and come to

conclusion that there are other two alternative shops available with family

members for doing business and in the shop no.91 the plaintiffs are

already doing business, however, did not consider that the shop no. 91 is

already allotted to brother-Surendra Kumar Jain, which is also clear from

the documentary evidence filed by the plaintiffs along with application

under Order 41 Rule 27 CPC.

14. Similarly, the shop no.90 is allotted to mother Smt. Puttibai in

which brother Anil Kumar Jain is already doing business of chaipatti (tea

leaf), so this shop is not available with the plaintiffs for starting business.

At present the plaintiffs are doing business in the shop no. 91, which

according to the documents filed along with application under Order 41

Rule 27 CPC, is allotted to brother-Surendra Kumar Jain, so this shop

cannot be said to be available with the plaintiffs for starting business, as

an alternative accommodation. Undisputedly, the defendant is tenant in

the shop no.93, regarding which the plaintiffs have claimed and proved

their ownership and has also been admitted by the defendant in the

written statement. Apparently both the Courts below have not considered

the case of plaintiffs from the aforesaid angle and dismissed the suit on

the ground of bonafide requirement, however in paragraph 16 trial Court

concluded that the plaintiffs are owners of the shop.

15. It is also apparent from the reply to the application under Order 41

Rule 27 CPC filed before first appellate Court that the defendant has not

raised any dispute about veracity of the certified copies of documents

placed on record along with an application under Order 41 Rule 27 CPC

and one of the documents had already been placed on record as Ex.P/7,

showing allotment of shop no.93 to them, in which the defendant is

tenant, therefore, there is no hurdle in taking into consideration the

additional evidence filed before first appellate Court by the plaintiffs just

with a view to remove doubts created by the defendant in the oral

evidence. Even otherwise, in presence of document Ex.P/7 coupled with

the admissions of ownership in paragraph 1 of the written statement,

nothing else is required. Apparently, the defendant has failed to establish

availability of other alternative vacant accommodation owned by the

plaintiffs.

16. Trial Court has framed issue no. 5 and 6 regarding bonafide need

of the plaintiffs and availability of alternative accommodations and both

the issues have been decided jointly, by holding that the plaintiffs have no

bonafide need and there are other alternative accommodations available

with the plaintiffs for their need. The findings of trial Court have been

affirmed by first appellate Court. Apparently, both the courts below have

negated the plaintiffs' case on the ground of availability of alternative

accommodations without making any discussion about bonafides of the

proposed need of the plaintiffs. As the defendant has failed to

demonstrate availability of alternative suitable vacant accommodation

with the plaintiffs, therefore, findings on the issue no. 5 & 6 are not

sustainable and are hereby set aside.

17. In view of the aforesaid discussion, in my considered opinion both

the Courts below have committed an illegality in dismissing the suit on

the ground under Section 12(1)(f) of the Act. Resultantly the substantial

questions of law no. 1 & 2 are decided in affirmative and by setting aside

the judgment and decree passed by Courts below, the civil suit filed by

the plaintiffs stands decreed, although only on the ground under Section

12(1)(f) of the Act.

18. At this stage, learned counsel for the respondent/defendant/tenant

prays for and is granted one year time to vacate the suit shop, which has

not been disputed by learned counsel for the appellants.

19. In view of prayer made by learned counsel for the respondent and

looking to the facts and circumstances of the case, this Court deems fit to

grant time for vacating the suit shop/tenanted premises upto 30.06.2026

on the following conditions:-

(i) The respondent/defendant/tenant shall vacate the tenanted premises on

or before 30.06.2026.

(ii) The respondent/defendant/tenant shall regularly pay monthly rent to

the appellants/landlords and shall also clear all the dues, if any,

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

within a period of 30 days.

(iii) The respondent/defendant/tenant shall not part with the tenanted

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

(iv) The respondent/defendant/tenant 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 respondent/defendant/tenant fails to comply with any of the

aforesaid conditions, the appellants/landlords shall be free to execute the

decree forthwith.

(vi) If after filing of the undertaking, the respondent/defendant/tenant

does not vacate the tenanted premises on or before 30.06.2026 and

creates any obstruction, he shall be liable to pay mesne profits of

Rs.500/- per day, so also contempt of order/judgment of this Court.