Madhya Pradesh High Court
Anish Kumar Vinayak vs Late Savita Pokar(Dead) Through Lrs. ... on 17 June, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:25768
1 SA-574-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 17th OF JUNE, 2025
SECOND APPEAL No. 574 of 2024
ANISH KUMAR VINAYAK
Versus
LATE SAVITA POKAR(DEAD) THROUGH LRS. DAYARAM PATEL
POKAR AND OTHERS
Appearance:
Shri Vipin Yadav - Advocate for the appellant.
Shri R.S. Mehndiratta - Advocate for respondents.
ORDER
This second appeal has been preferred by the appellant/defendant
challenging the judgment and decree dated 07.12.2023 passed by 15th
District Judge, Jabalpur, in RCA No.273/2022 & 33/2023 (filed by both the
parties) affirming the judgment and decree dated 18.11.2022 passed by 19th
Civil Judge Junior Division, Jabalpur, in RCSA No.5400041/2014 whereby
trial Court decreed the respondents/plaintiffs' suit for eviction on the ground
under Section 12(1)(a)&(f) of the M.P. Accommodation Control Act, 1961
(in short "the Act"), which has been affirmed by first appellate Court.
2. Learned counsel for the appellant/defendant submits that as against
the agreed rent of Rs.600/- per month, the original plaintiff Smt. Savita Pokar
issued notice dated 01.10.2013 (Annexure P/2) demanding rent of Rs.4,245/-
per month for last 10 years amounting to Rs.9,51,909/- and alleging the same
rate of rent instituted the suit on 10.07.2014 for eviction only on the ground
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of defaults in making payment of rent available under Section 12(1)(a) of the
Act and thereafter by way of amendment also sought eviction of the shop on
the ground under Section 12(1)(f) of the Act, alleging bonafide need of
Bharat Patel, the grand son of plaintiff. He submits that the original plaintiff
- Savita Pokar did not come in the witness box and her son Dinesh Patel was
examined as power of attorney holder. Placing reliance on the decision in the
case of Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and
others 2005(2) SCC 217 , he submits that power of attorney cannot be
examined in place of original plaintiff and his evidence is not admissible in
evidence and consequently all the documents placed on record in the
evidence of power of attorney could not have been considered for granting
decree of eviction. He submits that both the Courts below have decreed the
suit on the basis of demand notice (Ex.P/2) and if the evidence of Dinesh
Patel is excluded, then the suit is liable to be dismissed. He further submits
that there are six shops of the ownership of plaintiff and as such, the plaintiff
was having sufficient accommodation for starting alleged business by her
grand son Bharat Patel (PW-2) and Courts below without taking into
consideration this aspect of the matter, have committed illegality in passing
decree of eviction on both the grounds under Section 12(1)(a)&(f) of the
Act. With these submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for the respondents/plaintiffs submits
that in pursuance of the judgment and decree of eviction passed by Courts
below the respondents/plaintiffs have already been put in possession on
09.01.2024 by the executing Court. He further submits that during pendency
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of suit itself original plaintiff - Smt. Savita had died and in her place her sons
were substituted and Dinesh Patel who was examined as power of attorney
holder being her son, his evidence has rightly been considered by Courts
below for passing decree of eviction. He also submits that Bharat Patel for
whose need, the suit was filed has also been examined and Courts below
after having considered entire oral testimony of the witness and in view of
the fact that the defendant did not deposit the rent even at the rate of Rs.600/-
p.m. rightly passed the decree on both the grounds after striking out of
defence of the defendant due to non deposit of rent @ Rs.600/-. With these
submissions he prays for dismissal of second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Courts below in detail have discussed the oral and documentary
evidence and have come to conclusion that despite issuance of demand
notice and despite passing order by the Court for depositing rent @ Rs.600/-
per month, the defendant has not deposited rent as per provisions of Section
13(1) of the Act and even he has not deposited any rent after the year 2018.
6. After arguing at length, learned counsel for the appellant has not
been able to point out any perversity in the findings recorded by Courts
below regarding deposit of monthly rent by the appellant.
7. In the case of Kishore Singh vs. Satish Kumar Singhvi, 2017(3) JLJ
375 , a coordinate Bench of this Court has relied upon the decision of
Hon'ble Supreme Court in the case of Ragavendra Kumar vs. Firm Prem
Machinary and Company, AIR 2000 SC 534 , and held that the findings
recorded on the question of bonafide requirement do not give rise to any
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substantial question of law.
8. So far as, admissibility of evidence of Dinesh Patel (power of
attorney holder) is concerned, during pendency of suit original plaintiff -
Smt. Savita Pokar had died and Dinesh Patel including other three sons were
substituted as plaintiffs, therefore, in my considered opinion, there was no
hurdle in consideration of evidence of Dinesh Patel who was originally
power of attorney holder and later on came in the position of one of the
plaintiffs.
9. In view of the aforesaid discussion and in view of the concurrent
findings of Courts below regarding the grounds of eviction under Section
12(1)(a)&(f) of the Act, this Court does not find any illegality in the
impugned judgment and decree.
10. Resultantly, in absence of any substantial question of law, this
second appeal fails and is hereby dismissed.
11. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
SN
