Madhya Pradesh High Court
Smt.Dakha Bai vs Sushil Kumar on 26 June, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:27841
1 SA-1416-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 26th OF JUNE, 2025
SECOND APPEAL No. 1416 of 2005
SMT.DAKHA BAI (DEAD) THROUGH LRS TEJ KUMAR AND
OTHERS
Versus
SUSHIL KUMAR
Appearance:
Shri Mukund Agrawal, Advocate for appellant.
Shri Ramsuphal Chaturvedi and Shri Manish Verma, Advocates for respondent,
who is also present in person.
JUDGMENT
This second appeal has been preferred by the appellant/plaintiff-Smt.
Dakha Bai (now dead, through LRs) challenging the judgment and decree
dtd. 07.02.2005 passed by 10th Additional District Judge, Fast Track, Bhopal
in RCA No.56A/04 reversing the judgment and decree dtd. 03.03.2004
passed by 6th Civil Judge Class-II, Bhopal in RCS No.314A/2002 whereby
trial Court decreed the plaintiff's suit for eviction on the ground of bonafide
requirement available under Section 12(1)(f) of the M.P. Accommodation
Control Act, 1961 (in short the "the Act"), which was filed on the grounds
under Section 12(1)(a) & (f) of the Act, however in the appeal filed by the
respondent/defendant-Sushil Kumar, first appellate Court reversed the
judgment and decree of trial Court and dismissed the suit in its entirety.
2. In short the facts are that the plaintiff instituted a suit for eviction of
rented shop (ad measuring 10'x20'=200 sq. ft.) on the ground of defaults in
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making payment of arrears of rent as well as on the ground of bonafide
requirement of two sons Ajit Kumar & Tej Kumar for starting cloth business
with the further allegations that there is no alternative accommodation
available in the township of Bhopal. It is also alleged that the defendant, who
is tenant on rent of Rs.605/- per month, has not paid rent since 01.01.2002
despite service of registered notice dtd. 29.04.2002. On inter alia allegations,
the suit was filed.
3. The defendant appeared and filed written statement denying the
plaint allegations and contended that he is tenant in the shop on rent of
Rs.500/- per month and has already paid the entire rent. It is contended that
plaintiff's son Ajit Kumar is mentally sick and another son Tej Kumar and his
son Ajit Kumar are already doing business in Bairagarh. It is also contended
that there is a shop behind the suit shop, which is available for doing business
in which Tej Kumar did business of transport and in fact the suit has been
filed just to get the enhanced rent. 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 her allegations, the
plaintiff examined herself-Dakha Bai (PW/1), Saubhagyaman (PW/2), Tej
Kumar (PW/3), Kishan Lal (PW/4) and in rebuttal, the defendant examined
himself-Sushil Kumar (DW/1), Arif Khan (DW/2) and Santosh Chouhan
(DW/3). After hearing arguments trial Court upon due consideration of the
material available on record held that there is relationship of landlord and
tenant in between the parties and although one son Ajit Kumar is mentally
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sick, but the rented shop is required for starting business by another son Tej
Kumar, who is doing private service. It is also held that there is no alternative
accommodation available with the plaintiff for starting business by her sons
and accordingly finding the need of the son Tej Kumar, established, decreed
the suit for eviction on the ground under Section 12(1)(f) of the Act.
5. Against the judgment and decree passed by trial Court, the
defendant/respondent preferred regular civil appeal, which by the impugned
judgment and decree dtd. 07.02.2005, has been allowed whereby judgment
and decree passed by trial Court has been set aside and the suit filed by the
plaintiff, has been dismissed. However, affirmed the finding of trial Court
about the rate of rent to be Rs.605/- per month.
6. Against the aforesaid judgment and decree passed by first appellate
Court, the appellant/plaintiff preferred second appeal, which was admitted
for final hearing on 06.05.2014 on the following substantial question of law:-
"Whether the finding recorded by the lower appellate court that
the grounds for eviction under Sections 12(1)(a) and (f) of the
M.P. Accommodation Control Act, 1961 are not made out, is
perverse in the state of evidence on record?"
7. Learned counsel for the plaintiff/appellant submits that although the
substantial question of law has been framed in respect of both the grounds
under Section 12(1)(a) & (f) of the Act, but as the suit was decreed by the
trial Court only on the ground under Section 12(1)(f) of the Act, therefore,
he is not pressing the substantial question of law framed in regard to decree
of eviction on the ground under Section 12(1)(a) of the Act.
8. As regards the ground of eviction available under Section 12(1)(f)
of the Act is concerned, learned counsel for the appellant submits that both
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the Courts below have concurrently held that Tej Kumar is not doing
business in any shop but is in private employment of Kishan Lal (PW/4) and
placing wrong burden on the shoulders of plaintiff, first appellate Court has
said that the plaintiff has not been able to prove that he is not in possession
of alternative accommodation, whereas it is the burden of defendant/tenant to
prove availability of alternative accommodation with the landlord. He
submits that first appellate Court has also committed illegality in dismissing
the suit on the ground that the employer of Tej Kumar namely Kishan Lal
has not issued any notice to remove Tej Kumar from service and that the
plaintiff has not issued any notice terminating tenancy of the defendant,
which is also not necessary in the suit for eviction filed on the ground under
Section 12(1)(f) of the Act. With these submissions, he prays for allowing
the second appeal.
9. Learned counsel appearing for the respondent/defendant supports
the judgment and decree passed by first appellate Court and prays for
dismissal of the second appeal however, after arguing at length, they submit
that the respondent /tenant is ready to vacate the tenanted premises, if he is
granted time upto 30.06.2026.
10. Heard learned counsel for the parties and perused the record.
11. In the present case there is relationship of landlord and tenant in
between the parties and trial Court decreed the suit on the ground that son of
plaintiff is in need of the rented shop for starting cloth business and he is in
private employment of Kishan Lal (PW/4) because of non availability of
alternative accommodation. It is also held by trial Court that there is no
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alternative accommodation available with the plaintiff. As against the
findings recorded by trial Court, first appellate Court has in its judgment
observed that Tej Kumar is in employment of Kishan Lal and he has not
issued any notice for removing Tej Kumar from the service and further as the
plaintiff has not issued any notice terminating tenancy of the defendant,
therefore, the plaintiff is not entitled for decree of eviction. First appellate
Court has on surmises and conjectures also observed that there is no
alternative accommodation available with the plaintiff by placing wrong
burden on the shoulders of plaintiff.
12. In my considered opinion in the suit for eviction filed on the
ground available under Section 12(1)(f) of the Act, there is no necessity to
issue any notice terminating the tenancy, as such the reversal of judgment
and decree of trial Court on the said ground is not sustainable. Further after
arguing at length, learned counsel for the respondent/defendant has not been
able to point out any material available on record to infer that there is any
other alternative accommodation available with the plaintiff. So far as the
shop situated behind the rented shop is concerned, that also cannot be said to
be alternative accommodation because admittedly that is situated behind the
rented shop and is having small area.
13. In view of the aforesaid discussion in my considered opinion, first
appellate Court has committed illegality in reversing the judgment and decree
passed by trial Court. As a result thereof, second appeal succeeds and is
hereby allowed and by setting aside the judgment and decree passed by first
appellate Court, the judgment and decree passed by trial Court is hereby
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restored.
14. As has been prayed by learned counsel for the
respondent/defendant and has not been disputed by learned counsel
appearing for the appellants/plaintiffs, one year time i.e. upto 30.06.2026 is
granted to vacate the shop 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 Court 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 of this Court.
(vii) It is made clear that the respondent/defendant/tenant shall not be
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entitled for further extension of time after 30.06.2026.
(viii) It is also ordered that upon fulfillment of all the said conditions
and upon deposit of rent by defendant till 30.06.2026, appellants/plaintiffs
shall refund the security amount of Rs.29,000/- without any interest to the
respondent/defendant before vacation of shop.
15. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
KPS
