Madhya Pradesh High Court
Sejumal Khatwani vs Premlal(Died) Th. Smt Vidya Bai on 18 June, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
SA No.1913/2006
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON 18TH OF JUNE, 2025
SECOND APPEAL No. 1913 of 2006
SEJUMAL KHATWANI (DEAD) THR. LRS.
Versus
PREMLAL AND OTHERS
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Appearance
Shri Choudhary Mayank Singh - Advocate for the appellants.
Shri Bhoop Singh - Advocate for respondents
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JUDGMENT
This second appeal has been preferred by the appellant/plaintiff -
Sejumal Khatwani (now dead, through LRs) challenging the judgment and
decree dated 29.08.2006 passed by Second Additional District Judge, Jabalpur
in regular civil appeal No.34-A/2006 affirming the judgment and decree dated
28.09.2005 passed by Fifth Civil Judge Class-II, Jabalpur in civil suit
No.201/2005 whereby suit filed by the plaintiff on the grounds available under
Section 12(1)(a)&(e) of the M.P. Accommodation Control Act, 1961 (in short
'the Act') has been dismissed by Courts below.
2. In short the facts are that original plaintiff Sejumal Khatwani (now dead)
instituted a suit for eviction on the grounds of defaults in making payment of
rent and bonafide requirement of residence available under Section 12(1)(a)&(e)
of the Act, with the allegations that the plaintiff purchased the suit house vide
registered sale deed dated 13.03.1979 and informed the original defendant -
Premlal (who died during pendency of suit and is represented by LRs) about
making payment of rent to him. Premlal, who is tenant in one room did not pay
monthly rent. Upon issuance of notice dated 08.06.1983 (Ex. P/5) and after
service of second notice dated 23.06.1983 also defendant did not pay the rent.
Vide amendment, eviction was also sought on the ground of bonafide
requirement with the allegations that plaintiff is in need of the rented room, as
he has three children and wife and has no other alternative accommodation in
the township of Jabalpur. With these allegations the suit was prayed to be
decreed.
3. Despite service of summons the defendant did not appear, therefore, trial
Court proceeded exparte against him and decreed the suit on 09.08.1986. Upon
filing application under Order IX Rule 13 CPC, the same was dismissed on
31.08.1994. Misc. Appeal filed was also dismissed on 23.11.1995. In Civil
Revision No.304/1996 this Court vide order dated 30.01.2002 allowed the
application under Order IX Rule 13 CPC and set aside ex-parte judgment and
decree dated 09.08.1986. Consequently, the defendant appeared and filed
written statement denying the plaint averments contending monthly rent of
Rs.4/- in place of Rs.6/- alleged by the plaintiff. It is also denied that any notice
was issued and served upon him and contended that he has already paid entire
rent to Radha Krishna Temple Trust, Jabalpur. It is also contended that the
plaintiff is not in need of the rented room for residence because he has several
other alternative accommodations in the township of Jabalpur. With these
submissions the suit was prayed to be dismissed.
4. On the basis of pleadings of parties, trial Court framed issues and
recorded evidence of the parties and upon due consideration of the same and
while deciding issue No.1 found that notice dated 08.06.1983 (Ex.P/5) was not
served on the defendant and the plaintiff has not been able to prove issuance and
service of second notice dated 23.06.1983 and that the defendant has already
paid entire rent. While deciding issue No.2 and 3, trial Court also considered the
evidence in respect of vacation of other rooms in the same house and other
alternative accommodations in the township of Jabalpur and concluded that the
plaintiff is not in need of the rented room for his need and dismissed the suit on
both the grounds vide judgment and decree dated 28.09.2005.
5. Upon filing regular civil appeal, first appellate court has dismissed the
same and affirmed the judgment and decree of trial court vide impugned
judgment and decree dated 29.08.2006.
6. Against the aforesaid judgment and decree passed by courts below instant
second appeal was filed by the plaintiff, which vide order dated 30.07.2015 was
admitted for final hearing on the following substantial questions of law :-
"(1) Whether both the Courts below have erred in not granting a decree
under Section 12(1)(a) of M.P. Accommodation Control Act in favour of
appellants/plaintiffs ?
(2) Whether both the Courts below have erred in not granting decree
under Section 12(1)(e) of M.P. Accommodation Control Act in favour of
appellants/plaintiffs ?"
7. Learned counsel for the appellants/plaintiff taking this Court to the notice
(Ex.P/5) submits that service of notice was refused by the defendant, therefore,
as per section 27 of the General Clauses Act the service of notice ought to have
been presumed/accepted and Courts below have committed illegality in
dismissing the suit without taking into consideration the aforesaid legal
provision. He submits that the defendant did not pay the monthly rent despite
service of demand notice as per section 13(1) of the Act, therefore, in the light
of findings of the Courts below to the effect that there is relationship of landlord
and tenant in between the parties, suit ought to have been decreed. As regards
substantial question of law No.2 he submits that although in the same premises
7 - 8 rooms were vacated by other tenants, but they have already fallen down
and are not available for residence of the plaintiffs, therefore, also Courts below
have committed illegality in dismissing the suit without considering this aspect
of the matter. In support of his submissions, learned counsel placed reliance on
the decision given by Hon'ble Supreme Court in the case of C.C. Alavi Haji vs.
Palapetty Muhammed and Ors., (2007) 6 SCC 555 and by coordinate Benches
of this Court in Ashok Kumar vs. Shyambabu Garg, 2019 SCC OnLine MP
7126, Harishankar Sharma vs. Shrikrishnan Dubey, 2008(1) MPLJ 614 and
Kabeer Ahmed (Dead) Through LRs Javeed Ahmad and Ors. vs Sheikh Habib
(Dead) Through LRs. Smt. Abida Bi and Ors., Second Appeal No.1222/1999
decided on 06.03.2025 (at Jabalpur). With these submissions he prays for
allowing the second appeal.
8. Learned counsel appearing for respondents/defendants supports the
impugned judgment and decree passed by learned Courts below with the further
submissions that the concurrent findings of fact arrived at by learned courts
below are not liable to be interfered with within the limited scope of second
appeal available under Section 100 of CPC. With these submissions he prays for
dismissal of second appeal.
9. Heard learned counsel for the parties and perused the record.
Substantial Question of Law No.1:
10. In the present case both the courts below have concurrently found that
there is relationship of landlord and tenant in between the parties and the
defendant is tenant in the room on rent of Rs.6/- per month. It is well settled that
for seeking eviction of rented accommodation on the ground under Section
12(1)(a) of the Act, the landlord is required to serve notice of demand of arrears
of rent and in absence thereof no decree of eviction can be passed. In the present
case although the notice was issued on 08.06.1983 (Ex.P/5), but note put on the
envelope of notice (Ex.P.5) shows that it was not served on the defendant,
which is also clear from the averments of plaint made in para-4. Resultantly, the
plaintiff issued fresh/second notice dated 23.06.1983 which has been alleged to
be refused by the defendant. Undisputedly no copy of notice dated 23.06.1983
has been placed on record. In absence of which both the courts below have
refused to pass decree of eviction on the ground under Section 12(1)(a) of the
Act. As the second notice dated 23.06.1983 has not been placed on record
necessary for seeking decree of eviction on the ground under Section 12(1)(a) of
the Act, therefore, this Court does not find any illegality in the judgment and
decree passed by courts below denying the relief of eviction on the ground
under Section 12(1)(a) of the Act. Resultantly, substantial question of law No.1
is decided against the appellant/ plaintiff/landlord.
Substantial Question of Law No.2 :
11. In the present case, the house in question was having 11 rooms, which
was purchased by the plaintiff from previous owner/landlord and the defendant
is in occupation of one room only, which was sought to be vacated on the
ground of bonafide requirement of residence of the plaintiff, his wife and three
children. As has been admitted by counsel for the appellants and observed by
courts below that after purchasing the house and during pendency of suit,
several rooms were vacated by existing tenants but those rooms were not
occupied by the plaintiff for his alleged need of residence. First appellate court
in paragraphs 13 to 17 and trial court in paragraphs 9 to 11 have also observed
that there are other alternative accommodations available with the plaintiff in
the township of Jabalpur and there is no explanation available on record on the
part of plaintiff/landlord as to why they are not suitable to satisfy his need. At
the same time it is well settled that the findings on the question of bonafide
requirement do not give rise to any substantial question of law.
12. From perusal of the decisions relied upon by learned counsel for the
appellant it is clear that all the decisions are distinguishable on facts and do not
provide any help to the appellants.
13. As a result thereof, instant second appeal fails and is hereby dismissed.
14. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
ss
