Madhya Pradesh High Court
Shyam Singh vs Registered Vidhi Chand Dharmshala on 17 November, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:29373
1 SA-476-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 17th OF NOVEMBER, 2025
SECOND APPEAL No. 476 of 2010
SHYAM SINGH AND OTHERS
Versus
REGISTERED VIDHI CHAND DHARMSHALA
Appearance:
Shri Anand V.Bhardwaj - Advocate for appellants.
Shri Saket Sharma - Advocate for respondent.
ORDER
1. This second appeal under Section 100 of CPC has been filed against
the judgment and decree dated 03/09/2010 passed by Second Additional
District Judge, Gwalior in Civil Appeal No.1A/2008 as well as judgment and
decree dated 30/09/2008 passed by 10th Civil Judge, Class 1, Gwalior, in
civil suit No.116-A/2008.
2. The facts necessary for disposal of the present appeal in short are
that the respondent/plaintiff issued a notice under section 106 of Transfer of
Property Act thereby terminating the tenancy.
3. It was the case of the respondent that the trust is a charitable trust
registered under the Public Trusts Act and, therefore, is entitled for
exemption under Section 3 of the M.P. Accommodation Control Act.
4. The trial Court decreed the suit and decree of eviction was passed
against the appellants.
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2 SA-476-2010
5. Being aggrieved by the said judgment and decree, the appellants
preferred an appeal which was registered as RCA No.1-A/2008 and Second
Additional District Judge, Gwalior by order dated 15/7/2009 remanded the
matter back to the trial Court to consider and make scrutiny only of the
evidence on record relating to utilization/non-utilization of the entire income
of the trust with reference to purposes.
6. Being aggrieved by the said order, the respondent/plaintiff filed
M.A. No.1119/2009 which was allowed in part by learned Single Judge by
order dated 14/5/2010 with the following observations.
"22 In the instant case, both the parties have already
led evidence in support of their respective pleadings
which include the objection about non-utilisation of the
entire income of the trust for the trust itself. Learned
lower appellate judge after considering the entire
evidence on record shall have to give a specific finding
about utilisation of the entire income of the plaintiff's
trust for the trust itself. If the plaintiff fails to prove
such utilisation, he, in the absence of proof about any of
the grounds. contained in sub-section (1) of Section 12
of the M.P. Accommodation Control Act, 1961, will be
liable to be non-suited. Since other grounds, i.e., under
Section 12(1) (a), (b), & (c) have already been
relinquished, on account of not pressing them, learned
lower Appellate Judge is now not required to consider
evidence pertaining to them. He has to consider and
make scrutiny only of the evidence on record relating to
utilisation/non-utilisation of the entire income of the
trust with reference to purposes. This could have been
made by the learned lower appellate judge himself. In
the facts and circumstances of the case, the remand was
not required at all and the same being unwarranted,
appeal is hereby allowed in part. Impugned order is
hereby set aside. Learned lower appellate judge is
directed to decide the appeal afresh in the light of the
aforesaid discussion within a period of three months
NEUTRAL CITATION NO. 2025:MPHC-GWL:29373
3 SA-476-2010
from the date or appearance."
7 . Thereafter, the appellate Court by judgment and decree dated
30/09/2010 passed in Civil Appeal No.1-A/2008 dismissed the appeal of
appellants.
8 . The present appeal was admitted on the following substantial
question of law :
"1. Whether, learned lower appellate Court failed to
consider the directions given by this Court vide
judgement dated 14/5/2010 in M.A.No. 1119/2009?
2. Whether, learned Courts below failed to consider
Section 3 of M.P. Accommodation Control Act, 1961
and the judgment dated 14/5/2019 passed in M.A.No.
1119/2009 objectively as such the judgment and decree
is vitiated in the eyes of law?"
9. Challenging the judgments and decree passed by the Courts below,
it is submitted by counsel for the appellant that this Court by order dated
14/5/2010 passed in M.A. No.1119/2009 had remanded the matter back to
the appellate Court to give its finding with regard to the utilization/non-
utilization of funds of the trust with reference to purposes. It is submitted that
the Division Bench of this Court by its judgment passed in the case of
Scindia Devasthan, Regd. Charitable Trust Vs. Praveen Kumar Nigam and
others, reprted in 2013 (4) MPLJ 679 has held that the order dated 14/5/2010
passed in M.A. No.1119/2009 is not a good law and once the trust is
registered under the Public Trusts Act for charitable purposes, then it is
sufficient to hold that it is entitled for exemption under section 3 of the M.P.
Accommodation Control Act.
10. However it is submitted that it is well established principle of law
that the closed cases cannot be reopened on the ground that the judgment on
NEUTRAL CITATION NO. 2025:MPHC-GWL:29373
4 SA-476-2010
the basis of which the case was decided on earlier occasion has been set-
aside or overruled. Under these circumstances, it is submitted that the
respondent cannot take advantage of judgment passed by the Division Bench
of this Court in the case of Scindia Devasthan, Regd. Charitable Trust
(supra) and the Court below should have decided the appeal by giving a
finding as to whether the entire income of the trust is being utilized for
purposes for which it was constituted or not. To buttress his contention, the
counsel for the appellant has also relied upon the judgment passed by
Supreme Court in the case of Shanker Prahlad Deshpande vs Gendalal
Motilal Patni & Ors reported in 1970 JLJ 814 .
11. Per contra, counsel for the respondent has supported the findings
recorded by the Courts below.
12. Heard the learned counsel for the parties.
13. It is well established principle of law that where a case has been
decided on the basis of a judgment and if ultimately if the said judgment is
overruled, then the closed cases cannot be reopened on the ground that the
judgment on the basis of which the case was decided has been overruled.
However, in the present case, the situation is completely different.
14. In the present case, the Coordinate Bench of this Court by order
dated 14/5/2010 passed in M.A. No.1119/2009 had allowed the
Miscellaneous Appeal in part filed against the order of remand and had
directed the appellate Court to adjudicate as to whether the entire income of
the trust is being utilized/non-utilized with reference to purposes.
1 5 . Now the only question for consideration is as to whether the
NEUTRAL CITATION NO. 2025:MPHC-GWL:29373
5 SA-476-2010
appeal can be said to be a continuation of suit or not ?
16. The Supreme Court in the case of Dilip v. Mohd. Azizul Haq ,
(2000) 3 SCC 607 has held that suit includes appeal and has held as under:
"7. In theory the appeal is only a continuation of the
hearing of the suit. Accordingly, the word "suit" in the
Order has to be understood to include an appeal. The
result is that if at the time of the institution of the suit
for eviction clause 13-A was not in force, but at the time
of appeal such a clause is introduced, the tenant in
appeal becomes entitled to its protection. We draw
support for these propositions from the three decisions
of this Court cited by the learned counsel for the
appellants. Therefore, we are of the view that the High
Court was not justified in holding that there was no
appeal filed or pending against the tenant. In this case,
although a decree for eviction had been passed in the
suit, that decree was under challenge in a proceeding
arising out of that suit in appeal and was pending in a
court. Thus an appeal being a rehearing of the suit, as
stated earlier, the inference drawn by the High Court
that no proceedings were filed or pending against the
tenant as on the date would not be correct.
8. The High Court further concluded that the
amendments have no retrospective effect. The provision
came into force when the appeal was pending.
Therefore, though the provision is prospective in force,
has "retroactive effect". This provision merely provides
for a limitation to be imposed for the future which in no
way affects anything done by a party in the past and
statutes providing for new remedies for enforcement of
an existing right will apply to future as well as past
causes of action. The reason being that the said statutes
do not affect existing rights and in the present case, the
insistence is upon obtaining of permission of the
Controller to enforce a decree for eviction and it is,
therefore, not retrospective in effect at all, since it has
only retroactive force.
9. The problem concerning retrospectivity concerning
enactments depends on events occurring over a period.
If the enactment comes into force during a period it only
operates on those events occurring then. We must bear
in mind that the presumption against retrospective
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6 SA-476-2010
legislation does not necessarily apply to an enactment
merely because a part of the requisites for its action is
drawn from time antecedent to its passing. The fact that
as from a future date tax is charged on a source of
income which has been arranged or provided for before
the date of the imposition of the tax does not mean that
a tax is retrospectively imposed as held in Commrs. of
Customs and Excise v. Thorn Electrical Industries Ltd.
[(1975) 1 WLR 1661 : (1975) 3 All ER 881 (HL)]
Therefore, the view of the High Court that clause 13-A
is retrospective in effect is again incorrect."
17. Under these circumstances, if the facts of this case are considered,
then it is clear that the M.A. No.1119/2009 was arising out of the
proceedings in the present suit itself and the order dated 14/5/2010 was
passed in M.A. No.1119/2009. Later on, the Division Bench of this Court in
the case of Scindia Devasthan, Regd. Charitable Trust (supra) has held as
under:
18. Subsequent to the aforesaid, both the judgments of the Apex
Court in the matter of Chintamani Agrawal (supra), and Betibai
and others (supra), on arising the occasion such question, was
again considered by the Single Bench of this Court in the matter of
Reg. Vidhichand Dharamshala Trust through it's President and
Trustee Omprakash Garg vs. Shyam Singh and others, reported in
2010(3) MPLJ 428 = 2010(III) MPJR 142, in which taking into
consideration the aforesaid notification promulgated under sub-
section (2) of section 3 of the Act so also case law in the matter
Betibai and others (supra), it was held as under:
"21. Validity of section 3(2) of M. P. Accommodation
Control Act, 1961 and the notification dated 7-8-1989
exempting the application of the said Act has been
upheld by Hon'ble Supreme Court of India in the case
of Betibai and others vs. Nathooram and others, 1999(2)
JLJ 380. In the case of Betibai (supra), it is observed
that a landlord entitled to the benefit of the said
exemption can straightway file a suit for eviction after
serving a quit notice. Thus, it is clear that a registered
Public Trust would be able to avail the benefit of
exemption so long as its income is utilized for the trust
itself. In a suit for eviction, if it is established that the
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7 SA-476-2010
entire income of the trust is not utilized for the trust
itself, the plaintiff would no more be entitled to seek
benefit of exemption. This may be proved by the
defendants by producing reliable evidence in due
manner. It is a trite law that a case is to be decided on
the basis of the evidence recorded in it, as held by the
Apex Court in the case of Mitihulal and another vs.
State of M. P., 1975 JLJ 432.
It is equally clear that utilization of income of the trust
for any purpose other than that of Trust must be with
the express or implied consent of the trust or at least
within the knowledge of the trust with no objection. In
such a situation, the benefit of exemption may be denied
to the trust. Thus, it is clearly observed that if the
defendant succeeds in establishing by cogent evidence
that the utilization of the entire income of the trust has
not been made for the purpose other than that of the
trust, a suit for eviction by trust under the shelter of
exemption of section 3 of M. P. Accominodation
Control Act, 1961 read with the aforesaid notification is
liable to be dismissed in the absence of existence of any
of the grounds enumerated under sub-section (1) of
section 12 of the said Act."
28. Apart this, in the case of Regd. Vidhichand Dharamshala Trust
(supra), the Single Judge by giving some further and additional
interpretation to the decision of the Apex Court announced in the
matter of Betibai and others (supra), contrary to it's principle and
spirit has stated that "thus, it is clear that a registered public trust
would be able to avail the benefit of exemption so long as it's
income it utilized for the trust itself. In a suit for eviction if it is
established that the entire income of the trust is not utilized for the
trust itself, the plaintiff would no more be entitled to seek the
benefit of exemption". The aforesaid later part of this cited case of
Regd. Vidhichand (supra), being contrary to the law laid down by
the Apex Court could not be said to be a correct view. In such
premises, the law laid down by the single Judge in the matter of
Boolchand (supra), and in the matter of Regd. Vidhichand (supra),
being not correct, is hereby overruled.
29. In view of the aforesaid elaborate discussions the law laid
down by the Single Benches of this Court, in the matter of
Dayaram s/o Moolchand Sindhi (supra), of Shrimal and others
(supra), of Kewalchand (supra), and of Shri Bhagwatacharya and
others (supra), holding that subsequent to Notification dated 7-9-
1989 issued under sub-section (2) of section 3 of the Act, such
NEUTRAL CITATION NO. 2025:MPHC-GWL:29373
8 SA-476-2010
public trust is not under obligation to plead and prove that its
entire income received is utilized for the object and purpose of
such public trust/institution, are hereby held to be correct law on
the question referred."
18. In the case of Scindia Devasthan, Regd. Charitable Trust (supra),
it was held that the direction given by the learned Single Judge by order
dated 14/5/2010 in M.A. No.1119/2009 is not a good law and is contrary to
the law laid down by the Supreme Court.
19. As already pointed out, the appeal is continuation of the suit and
once the judgment passed by learned Single Judge in this case itself has been
held not to be a correct law, and since the suit in the form of appeal is still
pending, therefore the appellant cannot say that this Court should ignore the
law laid down by Division Bench of this Court in the case of Scindia
Devasthan, Regd. Charitable Trust (supra).
20. Furthermore, the Appellate Court in para 10 of impugned
judgment has held that the income of the trust is being used for the purposes
for which it was constituted. No arguments were advanced to challenge the
said findings.
21. Accordingly, both the substantial questions of law framed by
order dated 21/11/2023 are to be answered in negative, and accordingly, they
are answered in negative.
22. Furthermore, this Court by a separate order passed today in S.A.
No.624/2005 has also held that the plaintiff/respondent was rightly held to be
exempted from the provisions of M.P. Accommodation Control Act as
provided under section 3 of the MP Accommodation Control Act.
23. No other argument is advanced by learned counsel for appellant
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24. Considering the totality of the facts and circumstances of the case,
this Court is of the opinion that no case is made out warranting interference.
25. Accordingly, the judgment and decree dated 03/09/2010 passed by
Second Additional District Judge, Gwalior in Civil Appeal No.1A/2008 as
well as judgment and decree dated 30/09/2008 passed by 10th Civil Judge,
Class 1, Gwalior, in civil suit No.116-A/2008 are hereby affirmed.
26. The appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Aman
