RISHI KUMAR S/O JAGRAM GUPTA Vs. SHAHID SHEIKH
HIGH COURT OF MADHYA PRADESH
Rishi Kumar S/O Jagram Gupta
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Vivek Rusia, J. -
(1.) This appeal is filed against the judgment and decree dated 31.03.2017 passed in Civil Suit No.21- A/2015 by 4th Civil Judge, Class-II, Ujjain and judgment and decree dated 05.04.2018 passed in First Appeal No.14- A/2017 by 10th Additional District Judge, Ujjain by which civil suit as well as the first appeal both have been dismissed.
(2.) Facts of the case, in short, for disposal of this appeal are as under :-
(a) The Respondents [hereinafter referred to as "the plaintiffs"] filed the civil suit seeking decree of eviction and arrears of rent from the present appeallant [hereinafter referred to as "the defendant"] from Shop Nos.6 and 7, area 10 x 9 and 10 x 9, in total 20 x 9, with attached godowns, all are situated in House No.8, Kamri Marg, Ujjain [hereinafter referred to as "the suit shops"].
(b) As per the admitted facts of the case, the defendant was inducted as tenant in the suit shops by Late Abdul Zafar @ Zafar Bhai who is father of plaintiff Nos.1 and 2 and husband of plaintiff No.3. The water charges and electricity charges were not included in the rent and same were payable by the defendant. According to the pleading in the plaint, the suit shops were received by Late Abdul Zafar by way of partition in his family. The plaintiff Nos.1 and 2 are son and plaintiff No.3 is widow of Abdul Zafar and they received the suit shops by way of succession after the death of Abdul Zafar on 25.09.2006. The suit shops were given to the defendant by Late Abdul Zafar. Rs. 600-00 was payable as a rent for shops at ground floor and Rs.368-00 was payable for both the godowns, in total rent was first at the rate of Rs.968-00 per month. It is alleged that the defendant was irregular in payment of rent and he paid the rent on 31.05.2010 and thereafter he stopped paying the rent. He was served with the legal notice dated 30.11.2011 send by registered/AD demanding the rent and eviction. According to the plaintiffs, the defendant did not pay the rent from 01.06.2010 to 31.12.2013 i.e. for 43 months. The defendant has lodged false complaint against the plaintiffs in Police Station Kotwali, Ujjain on 12.08.2013 and due to which they suffered mental agony and nuisance. Without the permission of the plaintiffs, the defendant has removed the common gate and put the shutter gate. The plaintiff No.1 is having the shop in the name of "Radha Krishna Bhakti Bhandar" since 2 years and the plaintiff No.2 is having the tailoring business in the shop ad-measuring 4 x 10 feet which is not sufficient for his business. Therefore, they sought his eviction on the ground of bona-fide need for running their business.
(c) The defendant filed the written-statement denying the tenancy as well as the ownership of the plaintiffs. He has specifically pleaded that the godowns are not separate in tenancy but part of the suit shops and the rent of the entire shops is only Rs.600-00. He has deposited the rent Rs.27,000-00 for 45 months vide CCD No.995 on 11.02.2014. In total Rs.12,000-00 were sent to the plaintiffs by way of money-orders on different dates which they refused. It was further pleaded that the plaintiffs are only interested in increasing of the rent and demanding from the defendant rent @ Rs.3,000-00 per month. The plaintiffs have already purchased the Plot No.8/1/1, Kamari Marg, Ujjain ad-measuring 11.27 x 2.62 meter by registered saledeed dated 30.01.2016 and started the business, therefore, the bona-fide need has been fulfilled.
(d) On the basis of pleadings, the Trial Court framed 11 issues for adjudication.
(e) The plaintiffs got exhibited 10 documents as Exs. P/1 to P/10 and the defendant got exhibited 15 documents as Exs. D/1 to D/15. The plaintiffs examined Shahid Sheikh as PW-1 and the defendant examined himself as DW-1.
(f) Vide judgment and decree dated 31.03.2017 the learned Civil Judge recorded the finding in respect of Issue No.1 that the plaintiffs have successfully proved that the defendant is the tenant in 2 shops in which 2 godowns are included. The tenancy is commercial and the rent is Rs.600-00 per month without water and electricity charges. The rent is due from 01.06.2010 @ Rs.968-00 per month for the period of 3 years, but the defendant has not created any nuisance and damage to the suit shops. The suit shops are required bona-fidely for expansion of the business of plaintiff Nos.1 and 2 as they are not having suitable accommodation in Ujjain City. The learned Civil Judge has directed the defendant to hand over the possession of the shops to the plaintiffs within a period of 2 months and pay the rent Rs.14,400-00.
(g) Being aggrieved by the aforesaid judgment and decree, the defendant filed first appeal before the District Judge. The learned Additional District Judge vide judgment and decree dated 05.04.2018 he has upheld the judgment and decree dated 31.03.2017 passed under Section 12 (1) (f) of the M. P. Accommodation Control Act, 1961 and dismissed the appeal. Hence, the present second appeal before this Court.
(3.) In this appeal, learned counsel for the appellant has suggested the following substantial questions of law :-
"03.1. Whether the learned Courts below have acted illegally and contrary to law in passing the impugned judgment and decree on the ground of Section 12 (1) (f) of M. P. Accommodation Control Act, 1961 regarding the part of the tenanted accommodation and further acted illegally and contrary to law in splitting up the tenancy ?
03.2. Whether the learned first appellate Court has acted illegally and contrary to law in holding that the decree passed by the trial Court in para number 22 of the judgment will include the First floor also inspite of this fact that Trial Court specifically mentioned that the suit for eviction is partly decreed regarding 2 shops of ground floor total area 20 by 9 feet ?
03.3. Whether the learned Courts below have acted illegally and contrary to law in holding that the appellants are stopped from questioning the title of the landlord on the ground that appellant has paid the rent to respondent number 3 inspite of this fact that the receipt was given in the name of Shri Abdul Zafar not in the name of respondents/plaintiffs ?
03.4. Whether the learned Courts below have any jurisdiction to pass the decree on the ground of section 12 (1) (f) of M. P. Accommodation Control Act inspite of this fact that the respondent number 3 Raisaa is widow and falling under the category of special land lord ?
03.5. Whether the learned Courts below have any jurisdiction to pass the decree on the ground of section 12 (1) (f) of M. P. Accommodation Control Act in the light of provisions of section 23 (J) and section 45 of M. P. Accommodation Control Act, 1961 amended in 1983 ?
03.6. Whether the learned Courts below have acted illegally and contrary to law in holding that the respondent number 1 and 2 bonafidely require the suit accommodation for starting there own business inspite of this fact that the said respondents are already doing their business and further the respondent number 2 has not come in witness box to prove his need ?
03.7. Whether the learned Courts below have acted illegally and contrary to law that the requirement of respondent number 1 and 2 are genuine without considering the material, oral and documentary evidence on record and further acted illegally inspite of this fact that the respondent number 1 and 2 have not produced any document or evidence regarding expansion of their business and alternative accommodation available to them ?
03.8. Whether the judgment and decree passed by the learned Courts below are sustainable in eye of law ?";
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