[Cites 6, Cited by 0]
Madhya Pradesh High Court
Dr. Dilip Jain vs Prahlad Kumar (Dead) Thr. Lrs. Smt. ... on 8 January, 2026
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025: MPHC-JBP:1879
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 8th OF JANUARY, 2026
SECOND APPEAL No. 803 of 2018
DR. DILIP JAIN AND OTHERS
Versus
PRAHLAD KUMAR (DEAD) THR. LRS. SMT. VIMLESH JAIN AND
OTHERS
Appearance:
Shri Anas Hasan Khan and Shri Ramsakha Kushwaha - Advocates for the
appellants.
Shri Shyam Yadav - Advocate for the respondents
JUDGMENT
This second appeal has been preferred by the appellants/defendants
challenging the judgment and decree dated 7/3/2018 passed by Fifth
Additional District Judge, Sagar in RCA No.63A/2017 reversing the
judgment and decree dated 24/7/2017 passed by Second Additional Civil
Judge to the Court of First Civil Judge Class-I, Sagar in Civil Suit
No.1A/2010, whereby Trial Court dismissed the respondents/plaintiffs' suit
filed for eviction of the defendants on the grounds of defaults in making
payment of arrears of rent and bonafide requirement of business of Sanjay
Kumar Jain, available under Section 12(1)(a) and (f) of the M.P.
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Accommodation Control Act, 1961 (in short "the Act"), which in civil
appeal preferred by the respondents/plaintiffs, has been decreed on both
the grounds.
2. In short, the facts are that originally the plaintiffs Prahlad Kumar
Jain and Smt. Vimlesh Jain instituted a suit for eviction against the
appellants/defendants in respect of a shop/two rooms admeasuring 13 X 20
sq.ft. with the allegations that the shop in question was given on monthly
rent of Rs.110/- to the father and husband of the defendants, namely,
Devendra Kumar Jain by Jawaharlal Jain (whose LRs. are the plaintiffs). It
is alleged that despite making several demands and despite service of
demand notice dated 30/6/2008 (Ex.P/6), the defendants did not pay the
legally recoverable arrears of rent of three years amounting to Rs.3,960/-
and also did not reply to the notice. It is also alleged that the plaintiffs are
in need of the rented shop for starting business by their son Sanjay Kumar
Jain and there is no other alternative suitable vacant accommodation
available with the plaintiffs in the township of Sagar for starting business
by their son Sanjay Kumar Jain. On inter alia allegations, the suit was
instituted. It is pertinent to mention here that during pendency of the suit,
the plaintiff 1-Prahlad Kumar Jain died, therefore, his LRs. including
Sanjay Kumar Jain were substituted in his place.
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3. Upon service of summons, the defendants appeared and filed
written statement denying the plaint averments and contended that no rent
is due against the defendants and the plaintiffs are not in need of the rented
shop for starting the alleged business by their son Sanjay Kumar Jain, who
is already engaged in several other businesses and there is sufficient
alternative accommodation available with the plaintiffs in the same locality
for starting the business by their son Sanjay Kumar Jain. 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 their case, the plaintiffs
examined Sanjay Kumar Jain (PW-1), Nathuram Ahirwar (PW-2), Ashok
Ahirwar (PW-3) and Basant Kumar (PW-4) and produced documentary
evidence (Ex.P/1 to Ex.P/8). In support of their case, the defendants
examined Shishir Jain (DW-1) and Shailendra Samaiya (DW-2), however,
did not produce any documentary evidence.
5. After hearing learned counsel for the parties, Trial Court vide its
judgment and decree dated 24/7/2017 dismissed the suit on both the
grounds and upon filing civil appeal by the plaintiffs/respondents, First
Appellate Court vide impugned judgment and decree dated 7/3/2018
decreed the suit for eviction and arrears of rent on both the grounds
available under Section 12(1)(a) and (f) of the Act.
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6. Against the aforesaid judgment and decree passed by First
Appellate Court, instant second appeal was preferred by the
appellants/defendants/tenants, which was admitted for final hearing on
23/7/2018 on the following substantial questions of law:-
"i. Whether the appellants were entitled for the protection under
Section12(3) of the M.P. Accommodation Control Act, 1961 from eviction
under Section 12(1)(a) of the Act for default in payment of rent for the
period January to June, 2015?
ii. Whether the default in payment of rent from January to June, 2015,
would be considered as first default?
iii. Whether the findings recorded by the Lower Appellate Court about
landlord having no other alternative suitable accommodation is perverse
being contrary to the evidence on record?"
7. Learned counsel for the appellants submits that although no reply
was given by the defendants to the notice dated 30/6/2008 (Ex.P/6), but
upon filing civil suit on 2/9/2008, the defendants deposited the entire rent
on 20/10/2008 and thereafter they continued to deposit the future rent as
per provisions of Section 13(1) of the Act. He submits that the First
Appellate Court on the basis of some defaults made during pendency of
suit for the period w.e.f. January, 2015 to June, 2015 committed illegality
in decreeing the suit without taking care of the provisions of Section 12(3)
of the Act and since no previous defaults were there, the defendants were
entitled for the benefit of Section 12(3) of the Act and taking into
consideration this aspect of the matter, Trial Court rightly dismissed the
suit. In support of his submissions, learned counsel placed reliance on the
decision of this Court in the case of Lalchand Choithram Sindhi Vs.
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Laxman Das Narain Das Sindhi, 1992 MPLJ 352. He also submits that
since the plaintiffs are in possession of other alternative suitable
accommodations in the same locality, therefore and in view of the fact that
Sanjay Kumar Jain is already engaged in several other businesses, Trial
Court rightly refused to pass the decree of eviction, but the First Appellate
Court placing entire burden on the shoulders of the defendants, committed
an illegality in decreeing the suit on the ground of bonafide requirement of
Sanjay Kumar Jain available under Section 12(1)(f) of the Act. He also
submits that the said two accommodations were given on rent to the other
tenants during pendency of the suit, therefore, need of the plaintiff -
Sanjay Kumar Jain cannot be said to be bonafide. In support of his
submissions, learned counsel placed reliance on the decisions of this Court
in the cases of Gayatri and others Vs. Ashish Kumar, 2010 (3) MPLJ
103 and Gyasi Nayak Vs. Gyanchandra Jain, 2010 (3) MPLJ 203. With
these submissions, he prays for allowing the second appeal.
8. Learned counsel appearing for the respondents/plaintiffs supports
the impugned judgment and decree passed by First Appellate Court and
prays for dismissal of the second appeal with the further contentions that
since the defendants did not pay the arrears of rent for the period w.e.f.
January, 2004 to December, 2007 even after issuance of notice dated
30/6/2008 (Ex.P/6) and thereafter also committed defaults in making
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payment of future monthly rent for the period w.e.f. January, 2015 to June,
2015 by making deposit of rent at once in the month of December, 2015,
therefore, First Appellate Court has not committed any illegality in passing
the judgment and decree of eviction on the ground available under Section
12(1)(a) of the Act. He submits that since the plaintiff Sanjay Kumar Jain
is in need of the shop and there is no other alternative suitable vacant
accommodation available with the plaintiffs in the township of Sagar,
therefore, First Appellate Court has not committed any illegality in passing
the decree of eviction on the ground under Section 12(1)(f) of the Act also.
With these submissions, he prays for dismissal of the second appeal.
9. Heard learned counsel for the parties and perused the record.
10. In the present case, undisputedly the defendants did not pay the
monthly rent to the plaintiffs for the period w.e.f. January, 2004 to
December, 2007 and consequently, a notice dated 30/6/2008 (Ex.P/6) was
served by the plaintiffs on the defendants, but the defendants did not even
care to reply the notice and also did not deposit the arrears rent, which
constrained the plaintiffs to file the suit on 2/9/2008, however, upon
putting appearance before the Court, the defendants deposited the rent on
20/10/2008. It is also clear from the record that during pendency of the suit
also, the defendants made defaults in making payment of rent for the
period w.e.f. January, 2015 to June, 2015 by making deposit of rent at once
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in the month of December, 2015 and for the reasons best known to the
defendants, no prayer for condonation of delay in making delayed deposit
of rent was made nor it was condoned by the Court. So, it is clear that the
defendants made defaults in making deposit of arrears of rent for the
period w.e.f. January, 2004 to December, 2007 then till 20.10.21008, and
thereafter for the period w.e.f. January, 2015 to June, 2015, which has been
considered by First Appellate Court in paragraphs 22 and 23 of the
impugned judgment. So, there is no question of granting benefit of Section
12(3) of the Act to the appellants, which is available only in the
circumstances where the tenant deposits the rent in accordance with the
provisions of Section 13(1) of the Act. Even after arguing at length,
learned counsel for the appellants has not been able to point out any
perversity in the findings recorded by the First Appellate Court. In view of
the aforementioned factual scenario, the decision relied upon by learned
counsel for the appellants in the case of Lalchand Choithram Sindhi
(supra) does not provide any help to the appellants. As such, the
substantial question of law no. (i) & (ii) are decided against the appellants
and in the manner that the appellants are not entitled for protection of
Section 12(3) of the Act and default committed by the appellants cannot be
considered as first default.
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11. So far as the question of bonafide requirement of the plaintiff
Sanjay Kumar Jain is concerned, the oral testimony of defendant 2-Shishir
Jain (DW-1) made in para 11 of his statement, shows that in addition to the
rented shop, there are two other accommodations owned by the plaintiffs
known as Sonu Hair Art (Salon) and Havells Galaxy, which are admittedly
in possession of other tenants. Even after arguing at length, learned
counsel for the appellants has not been able to point out any other
alternative suitable accommodation in vacant possession of the
respondents/plaintiffs. From perusal of paragraph 6 of chief examination of
defendant-Shishir Jain (DW-1), it is clear that only two accommodations
have been shown as alternative accommodations, and in the entire
statement he has nowhere stated that the said two accommodations were
given on rent to other tenants during pendency of the suit, so argument
advanced by learned counsel in that regard, deserves to be rejected.
12. In my considered opinion, the accommodations which are in
possession of other tenants, cannot be considered as alternative
accommodations for the purpose of seeking eviction on the ground of
starting business by the plaintiff-Sanjay Kumar Jain. This aspect of the
matter has been considered by First Appellate Court in paragraphs 24 to 26
of the impugned judgment and it has been found that the plaintiffs are in
need of the suit accommodation for starting business by plaintiff Sanjay
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Kumar Jain and there is no other alternative suitable vacant
accommodation available with the plaintiffs for starting the business by
Sanjay Kumar Jain. So, the substantial question of law no. (iii) does not
arise in the case. Even otherwise, reappreciation of oral evidence is not
permissible in the limited scope of second appeal provided under Section
100 CPC. In these circumstances the decisions relied upon by learned
counsel for the appellants in the case of Gayatri and others (supra) and
Gyasi Nayak (supra) do not provide any help to the appellants.
13. Upon due consideration of the entire material available on
record, this Court does not find any illegality in the impugned judgment
and decree as well as in the findings recorded by the First Appellate Court.
14. Resultantly, this second appeal fails and is hereby dismissed.
15. Pending application(s), if any, shall stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
