Madhya Pradesh High Court
Ajay vs Shri Gujrati Samaj Thru. Kirit Pandya on 26 March, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 26th OF MARCH, 2025
SECOND APPEAL No. 131 of 2015
AJAY
Versus
SHRI GUJRATI SAMAJ THRU. KIRIT PANDYA AND OTHERS
Appearance:
Shri Baldeep Singh Gandhi - Advocate for the appellant.
Shri Rasik Sugandhi - Advocate for the respondents.
ORDER
This second appeal has been preferred by the appellant/defendant-
Ajay, challenging the judgment and decree dated 20.02.2015 passed by 10th
Addl. District Judge, Ujjain, in regular civil appeals no.15A/2013 and
19A/2013 affirming the judgment and decree dated 14.08.2013 passed by 1st
Addl. Civil Judge Class-II to the Court of 1st Civil Judge Class-II, Ujjain in
RCS no.5A/2008 whereby Courts below have concurrently decreed the suit
on the ground of change of user and nuisance available under Section 12(1)
(c) of the M.P. Accommodation Control Act, 1961 (in short 'the Act').
2. Learned counsel for the appellant, who is one of the heirs of original
tenant Motilal submits that vide written agreement of tenancy dated
01.08.1982 (Ex.P/3) undisputedly two shops were let out by the plaintiff to
father of the appellant/defendant for carrying out electrical goods business.
He submits that although no reply was given to the notices (Ex.P/3 and P/4)
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issued by the plaintiff, but Courts below on wrong assumptions not
acceptable in the eyes of law, have committed illegality in passing decree of
eviction on the ground of change of user and nuisance available under
Section 12(1)(c) of the Act. With these submissions, he prays for admission
of the second appeal.
3. Learned counsel appearing for the respondent/plaintiff supports the
impugned judgment and decree passed by Courts below and prays for
dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Perusal of written agreement (Ex.P/3) shows that two shops were let
out by the plaintiff/respondent to father of appellant namely Motilal for
carrying out business of electrical goods. The factum of tenancy and letting
out of the shops for carrying out electrical goods business, has been admitted
by original tenant-Motial in his oral testimony, which is also clear from
clause 5 of the agreement of tenancy. It is apparent that plaintiff also issued
notices (Ex.P/3 and P/4) stating the aforesaid fact, but for the reasons best
known to the defendant, no reply was given. Even otherwise, the plaintiff by
adducing evidence has clearly proved that the defendant along with electrial
shop had also started residing in one of the shops and upon due consideration
of the material available on record, Courts below have concurrently found
that not only the defendant has changed user of the shops for which he was
permitted in the shops, but has also created nuisance.
6. The aforesaid findings recorded on the question of change of user
and creating nuisance by the defendant are pure findings of facts, hence are
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not liable to be inteferred with, in the limited scope of second appeal filed
under Section 100 CPC.
7. As such, for want of any substantial question of law, this second
appeal fails and is hereby dismissed.
8. Misc. application(s), pending if any, shall stand disposed off.
9. At this stage, learned counsel for the appellant prays for one year
time to vacate the suit shops, which has not been opposed by learned counsel
for the respondent/plaintiff.
10. In view of the aforesaid, this Court deems fit to grant time for
vacating the tenanted/suit accommodation upto 31.03.2026 on the following
conditions:-
(i) The appellant/defendant/tenants shall vacate the tenanted shops on
or before 31.03.2026.
(ii) The appellant/defendant shall regularly pay monthly rent to the
respondent/landlord 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 appellant/defendant shall not part with the suit shops to
anybody and shall not change nature of the same.
(iv) The appellant/defendant shall furnish an undertaking with regard
to the aforesaid conditions within a period of three weeks before the Court
below/Executing Court.
(v) If the appellant/defendant fails to comply with any of the aforesaid
conditions, the respondent/landlord shall be free to execute the decree
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forthwith.
(vi) If after filing of the undertaking, the appellant/defendant/tenants
does/do not vacate the suit shops on or before 31.03.2026 and create(s) any
obstruction, he/they 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 defendant/appellant shall not be entitled
for further extension of time after 31.03.2026.
11. With the aforesaid observations, this second appeal fails and is
hereby dismissed.
12. Misc. application(s), pending if any, shall stand closed and interim
order of stay, if any, shall stand vacated.
(DWARKA DHISH BANSAL)
JUDGE
pb
