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Judgment
Appellants/original defendants have filed this second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 15.07.2011 passed by the Thirteenth Additional District Judge, Gwalior in regular civil appeal No.9A/2011, whereby the eviction decree passed on 30.11.2010 by the Eleventh Civil Judge, Class-II, Gwalior in Civil Suit No.49A/2008 is affirmed on the ground envisaged under Section 12(1)(f) of Madhya Pradesh Accommodation Control Act 1961.
Admittedly appellants are tenant in a part of the ground floor of the building No.30/17 situated at Kesharbag Colony, Mela Road, ward No.16 of Gwalior of respondent/original plaintiff for non- residential purpose, whose rent was fixed as Rs.250/- per month by the Rent Controlling Authority vide order dated 17.05.1975. Plaintiff/present respondent filed a civil suit on 18.05.2007 for eviction of tenant and for getting vacant possession of suit accommodation on the pleadings that from the life time of grandfather of the plaintiff an old factory is running and doing business in title of "Gangwal Metal Industry" and due to increasing in the members of family, each member is now separately running his business. Plaintiff Vikas Gangwal had started business of road construction as contractor and plaintiff is registered as Class "A-1" Contractor under CPWD and plaintiff had get a contract for construction of highway. Plaintiff is bonafidely required the suit accommodation for opening his office for his work of contractor of road construction and presently he is running this business from a part of shop situated in Naya Bazar in Gwalior City, which is of the ownership of his nephew Prashant Gangwal. Presently plaintiff is feeling much difficulty at
Naya Bazar, because there available place is very short and Prashant Gangwal has large business of his own and plaintiff wants to increase his above mentioned work by keeping more employees and for this purpose plaintiff is not having any other alternative suitable non-residential accommodation in Gwalior Municipal Corporation limits. Plaintiff''s other tenant in the building which contains suit accommodation are tenant for residential purpose. Prior to filing a suit, rent was due towards the defendant from 11.04.2007 and prior to filing of suit arrears of rent were also demanded by a notice sent by registered post and by which the tenancy of the defendant was also terminated, but tenant did not comply with the notice. Plaintiff is entitled to receive the rent of suit accommodation at the rate of Rs.550/- per month. Hence, eviction of tenant and vacant possession of suit accommodation was claimed alongwith arrears of rent.
Defendants denied the plaintiff''s adverse pleading on the grounds that plaintiff has not produced any documentary evidence and in the same building containing suit accommodation, there are other tenants of plaintiff. Plaintiff and his brothers and father are consisting a joint family, who is owner of large immovable properties. Suit accommodation is not bonafidely
required by the plaintiff for the pleaded purpose. Plaintiff is having other properties within the limits of Municipal Corporation Gwalior. Plaintiff and his family has constructed about 200 shops in Gwalior just before filing of the suit and have allotted this only constructed shop to the tenants. The rent upto the month of June 2007 had been sent to the plaintiff by money orders and the rent from July, 2007 to October, 2007 has been deposited in the Court and no rent is due. Plaintiff is desirous of enhancing the rent and hence eviction suit has been filed on the false grounds. Plaintiff is not entitled for any relief.
On the basis of pleadings of the parties, issues were framed by the trial Court. Before the trial Court plaintiff''s witness Vikas Gangwal (PW- 1) Prashant Gangwal(PW-2) Vinod Saxena (PW-3) and Prashant Nigadikar (PW-4) were examined and for defendants R.D. Singhal (DW-1) and Dilip Kumar (DW-2) were examined.
After hearing the parties, the trial Court recorded its findings that plaintiff is not entitled for receiving rent of the suit accommodation at the rate of Rs.550/- per month, but it was found proved that the plaintiff bonafidely required the suit accommodation for establishing his office regarding his business of road construction as contractor and for this purpose plaintiff is not
having any alternative suitable accommodation within the local limits of Municipal Corporation limits of Gwalior City and decreed the suit. Defendants filed first appeal before the district Court, which remained unsuccessful. Hence, this second appeal has been filed.
Learned senior counsel for the appellant contends that both the Courts below erred in decreeing the plaintiff''s suit, though no any documentary evidence was filed by the plaintiff to prove that he is a Class A-1 Contractor under the CPWD and from Ex-D/1 it was clear that the relating road construction contract was given to one Mr. Fateh Singh. It was further argued that in absence of documentary evidence relating to alleged contractorship and receiving contract for highway construction, each of the lower Court erred in decreed the suit. It has also been contended that in absence of documentary evidence on the above mentioned points, the findings recorded by both of the lower Courts are perverse. Hence, it is prayed that this second appeal be admitted for final hearing after formulating the substantial question of law proposed in the second appeal memo.
On the other hand, it has been contended by the learned counsel for the respondent that Ex. D/1, which is a letter sent by Era Group dated
10.03.2007 to M/s FUTURISTICS Infrastructure and Highway Pvt. Ltd. and its address clearly mentioned in Ex.D-1 indicates that this concern is situated in Gangwal Mills Compound, near Falka Bazar, Lashkar Gwalior, which clearly establishes its relation with the plaintiff and from the evidence of Prashant Nigdikar (PW-4) it is clear that at the relevant time he was employee/manager of plaintiff''s road construction business on contractor ship and prior to him above mentioned Fateh Singh was manager of the plaintiff. It was further argued that the plaintiff''s bonafide need for suit accommodation is a question of fact and on this point, both the lower Courts have properly and legally appreciated the evidence available on record and hence, this second appeal does not involve any substantial question of law which should be dismissed at motion stage.
Learned senior counsel for the appellant vehemently contended that if any fact could be proved by documentary evidence, it should have been proved only by producing necessary documentary evidence and in the absence of relating documentary evidence, oral evidence could not be relied on and plaintiff''s suit could only be decreed on the strength of his evidence and in this reference the weakness of defendant''s
evidence could not provide any support to the plaintiff''s case. It is strongly argued that no documentary evidence was filed by the plaintiff to mention that he is a Class A-1 contractor under CPWD and have allotted contract for construction of any highway and Ex-D/1 is related to one Fateh Singh and it has no connection with the plaintiff.
The argument advanced by the learned Counsel for the appellant appears to be attractive but it is devoid of any substance because civil cases are decided on preponderance of probabilities and like criminal cases, it is not necessary in civil cases to prove any fact beyond any reasonable doubt, which is a necessity to establish the guilt of any accused in criminal cases. The standard of requirements regarding evidence in any civil and criminal cases are different. Ex-D/1, which is a covering letter sent by Era Group Construction India Pvt. Ltd. was sent to M/s Futuristic Infrastructure and Highway Pvt. Ltd., whose typed address clearly indicating its situation at Gangwal Mills Compound, Lashkar Gwalior, and relating work order was also issued in favour of Futuristic Infrastructure and Highway Pvt. Ltd..
Plaintiff Vikas Gangwal (PW-1) has clearly deposed that his father and his family his having a large business named Gangwal Metal Industries
and he had started the business of road construction and presently he has received road construction contract for constructing national highway, and he has a CPWD''s Class A-1 Contractor and on this point his evidence was totally corroborated by the evidence of his nephew Parash Gangwal (PW-2), Vinod Saxena (PW-3) and Prashant Nigadikar (PW-4).
Prashant Nigdikar (PW-4) has clearly deposed that previously Fateh Singh was working as manager of plaintiff for road construction work and presently he is successor of Fateh Singh and he look after plaintiff''s above mentioned work and plaintiff is a Class A-1 Contractor under CPWD and plaintiff has been allotted tender for construction of new four lane bypass road of about 43kilometers issued by National Highway Authority of India.
Even the Rameshwar Dayal Singh (DW-1) who is working as Yuva Samanvayak in the defendant institution has deposed in para-3 of his affidavit filed under Order 18 Rule 4 of CPC that plaintiff is running his business from property situated in Naya Bazar and that property also belongs to the plaintiff. The above mentioned defendant''s witness has cleverly not mentioned the business of plaintiff. He deposed in para-26 of his cross-examination that he had met to Vikas
Gangwal in his office, but he did not try any time to find out that whether plaintiff Vikas is running business of road construction or not. He admitted in para-31 that plaintiff''s family is having a steal factory and plaintiff''s family is running business of clothes at Naya Bazar. He further deposed in para-4 that he had not seen relating documents to ascertain that on whose name the property situated in Nayi Sadak is recorded but deposed that total property is recorded in the names of Gangwal family. Parmeshwar Dayal Singh (DW-1) has deposed that plaintiff has obtained possession of other tenanted premises from other tenants through judicial procedures but he admitted that other previous tenants Dheerendra Singh and V.D. Giri were tenants for residential purposes in relating portions, whereas the suit accommodation is non-residential premises. If the plaintiff has obtained vacant possession for residential accommodation from his previous tenants, then it could not be inferred that the plaintiff is having alternative suitable accommodation of his own for non-residential purposes.
Defendant''s other witness Dilip Kumar Hazela (DW-2) who is accountant in defendant''s institution clearly deposed that plaintiff and his family members have constructed about 200
shops at Nayi Sadak and newly constructed shops have been given to tenant, but in para-16 of his cross-examination he deposed that he had not seen those 200 newly constructed shops and he had deposed this fact only on hearsay basis. It also indicates that plaintiff is doing construction business.
It is clear that each of the lower Courts has properly and legally appreciated the oral and documentary evidence available on record and concurrent findings of each of the lower Courts could not be termed as perverse. The bonafide requirement of tenanted premises by a landlord is a question of fact, which could not be assailed in second appeal. [Bhupendra Singh Vs. Shyam Babu Agrawal (2013 (2) MPHT 230) followed].
I am of the considered view that this second appeal does not involve any question of law rather than substantial question of law. Consequently, this second appeal deserves to be and is hereby dismissed. No order as to costs.