AI Structured Summary
Not yet generated for this judgment
Judgment
This first appeal under section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 30 th of July, 2008 passed by the Court of II Additional Judge to the Court of I Additional District Judge, Bhopal in Civil Appeal No.128-A/2007; whereby the suit of plaintiff/respondent for eviction of the defendants/appellants from the suit premises and recovery of arrears of rent, was decreed on the grounds of sections 12(1)(a), 12(1)(c) and 12(1)(e) of the M.P. Accommodation Control Act, 1961.
The only admitted facts before the trial Court was that the defendant no.1/appellant no.1 Surendra Mehani (hereinafter referred to in this judgment as "defendant Mehani") has not paid rent of flat no.S-1, Moon Classic Apartment Block No.A-28, Housing Board Colony, Kohefiza, Bhopal (hereinafter referred to in this judgment as the "suit premises") to plaintiff/respondent Smt. K.N. Khan (hereinafter referred to in this judgment as "plaintiff Khan"); therefore, his defence was struck off under section 13(6) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to in this judgment as ''the Act'').
Apart from the aforesaid admitted facts, the case of plaintiff Khan before the trial Court in brief was that she was owner in possession of the suit premises. In the year 2003, she fell ill. The suit premises was situated on the second floor of the house; therefore, it became impossible for her to climb the stairs
to reach the suit premises. Therefore, she shifted into the flat no. G-I belonging to her family friend, which was located on the ground floor of the same building. After that, suit premises lay vacant for many months. Thereafter, defendant Mehani proposed to take the suit premises on rent. Plaintiff Khan accepted the proposal because she needed money for her treatment. Consequently, the suit premises was given on rent to defendant Mehani at the rate of Rs.2900/- per month. At the time of taking the flat on rent, he paid Rs.5800/- by way of advance for the months of July and August, 2006. However, after taking the flat on rent, defendant Mehani handed over the possession of the suit premises to appellant no.2/defendant no.2 Smt. Sarita Sachdeva (hereinafter referred in this judgment as ''defendant Sarita'') without permission of plaintiff Khan. As such, plaintiff Khan is entitled to a decree of eviction on the ground of section 12(1)(b) of the Act. After taking the suit premises on rent, the police raided the suit premises and recovered illegal weapons and documents. Thereafter, plaintiff Khan and her husband Maksood Khan learnt that defendant Mehani had criminal antecedents. The suit premises was visited by non-social elements. Defendant Mehani has also been sent to jail. As such, he created nuisance for the plaintiff and other occupants of the building. Therefore, section 12(1)(c) of the Act is also attracted in the case. Plaintiff Khan has now recovered from her illness and she needs the suit premises again for her residence. She had no other place suitable for aforesaid purpose in the city of Bhopal; therefore, she is entitled to a decree of
eviction on the ground of section 12(1)(e) of the Act. That apart, after paying the rent of July and August, 2006 defendant Mehani has not paid any rent. Plaintiff Khan had sent a demand notice to defendant Mehani by registered post acknowledgement due; however, the notice was received back with an endorsement of the postal authorities to the effect that defendant Mehani had refused to accept the notice. Even after aforesaid notice, defendant Mehani has neither tendered nor paid any rent to plaintiff Khan; therefore, she is entitled to decree of eviction and recovery of arrears of rent on the ground of section 12(1) (a) as well.
Defendant Mehani has denied the averments made in the plaint and has contended that he is not in possession of the suit premises as a tenant. Plaintiff Khan, in the presence of her husband Maksood Khan, had entered into an oral agreement for the sale of suit premises to defendant Mehani for a consideration of Rs.4,50,000/-. Out of aforesaid amount, defendant Mehani had paid Rs.1,50,000/- in cash to plaintiff Khan. The remaining amount was to be paid to plaintiff Khan in July, 2007. Aforesaid agreement was entered into in the presence of Kanhaiyalal and Narayan Das; however, since defendant Mehani was in custody since 09.09.2007, he could not pursue the matter with plaintiff Khan. However, he proposes to take action on the basis of aforesaid agreement. Thus, defendant Mehani had taken possession of the suit premises not as a tenant but as a purchaser thereof. Therefore, there was no question of payment of any rent to plaintiff Khan. Defendant Sarita has submitted that she is wife of defendant Surendra Mehani and has a child from him. She lives in the suit premises along with her family and her husband Surendra Mehani has entered into an agreement to purchase the suit premises from plaintiff Khan. In aforesaid circumstances, it had been prayed that the suit for a decree of eviction and arrears of rent be dismissed.
After the trial, the suit was allowed and the decree for eviction and arrears of rent was passed on the grounds of section 12(1)(a), 12(1)(c) and 12(1)(e) of the Act. It was held that plaintiff Khan had succeeded in proving that she is the owner of the suit premises. The suit premises was given on rent to defendant Mehani at the rate of Rs.2900/- per month. Defendant Mehani had failed to prove that plaintiff Khan had entered into an oral agreement with defendant Mehani for the purchase of suit premises for a consideration of Rs.4,50,000/- and had paid Rs.1,50,000/- out of that amount by way of advance and was in possession of the suit premises not as a tenant but as a purchaser. Plaintiff Khan had also succeeded in proving that no rent has been paid by the defendant Mehani since September, 2006. He had not paid arrears of rent even after receipt of demand notice; therefore, the ground of section 12(1)(a) is available to plaintiff Khan and she is entitled to recover arrears of rent from defendant Mehani since 1 st September, 2006. It was also found proved that defendant Mehani has used the suit premises for indulging in criminal activities and as such had created nuisance; therefore, the
plaintiff was also entitled to decree of eviction under section 12(1)(c) of the Act. It was also found to have been proved that plaintiff Khan has bona fide and real need of the suit premises for her residence and she had no other suitable accommodation for aforesaid purpose in Bhopal city. Consequently, the suit was decreed as stated above.
The findings recorded by the trial Court have been assailed by the learned counsel for the appellants mainly on the ground that the agreement for sale of the suit premises between plaintiff Khan and defendant Mehani was oral. A receipt evidencing payment of Rs.1,50,000/- by defendant Mehani to plaintiff Khan was executed and is in the possession of defendant no.1/appellant; however, due to inadvertence, it could not be filed in the trial Court; therefore, an application under Order 41 Rule 27 of the Code of Civil Procedure (I.A.No.11421/2008), has been moved in this first appeal. By order dated 04.10.2010 passed by this Court, it was directed that aforesaid application shall be decided along with this appeal. The receipt is of vital importance to the appellant/defendant no.1 and its production is necessary for the Court to enable it to pronounce judgment; therefore, it has been prayed that the application be allowed. The receipt be taken on record and the matter be remitted back to the trial Court for disposal in accordance with law after taking into consideration the aforesaid receipt.
In support of his contention, learned counsel for the appellants has placed reliance upon the judgment rendered by a
coordinate bench of this Court in the case of Abdul Samad vs. Khemraj delivered on 24.06.2010 in S.A. No.184/2007 (Bench at Indore). It has further been submitted that even otherwise in the light of the evidence adduced by the parties, the trial Court gravely erred in holding that defendant Mehani was tenant of plaintiff Khan in the suit premises. The rent note (Ex.P/38) allegedly executed by defendant Mehani, was not produced before the trial Court till evidence of plaintiff Khan and her husband Maksood Khan was over. The date of rent note has neither been pleaded nor mentioned in the affidavit under Order 18 Rule 4 & 5 of the Code of Civil Procedure filed by the plaintiff. It has also been argued that the alleged rent note (Ex.P/38) was neither exhibited during the statement of plaintiff Khan nor during the statement of her husband Maksood Khan.
Learned counsel for appellant/defendant Mehani has invited attention of the Court to paragraph no.8 of the written statement wherein defendant Mehani has categorically pleaded that relationship of landlord and tenant does not exist between plaintiff Khan and defendant Mehani. Learned counsel for appellants/ defendants has also pointed out in paragraph no.15 of his cross-examination that appellant/defendant Mehani has explained that relationship between plaintiff Khan and defendant Mehani was so strong that no written agreement was entered into. He had paid Rs.1.5 lacs to the plaintiff in cash and had taken possession of the flat; therefore, no written agreement for sale was necessary. Learned counsel for the appellants has also invited attention of the Court to paragraph nos.23 & 24 of
the impugned judgment wherein conflicting findings have been recorded as to whether or not the grounds of section 12(1)(b) of the Act is made out against the appellants/defendants.
Per contra, learned Senior counsel for the respondent has contended that the application under Order 41 Rule 27 has been moved before this Court on 24.09.2008 but no attempt was made to produce the receipt before the trial Court. No reason has been assigned in the application as to why such a vital document was not produced before the trial Court. In fact the document could not be produced before the trial Court because it was not in existence at that point of time. In fact, appellant/defendant no.1 Mehani has a criminal past. There are several criminal cases registered against him including those for forgery and cheating. He has forged the signatures of Maksood Khan, husband of plaintiff on the alleged receipt, in order to strengthen his claim that he had purchased the suit premises. It has also been pointed out that the alleged receipt is said to have been executed by Mohammad Maksood Khan, husband of plaintiff. The trial Court has recorded clear finding that the suit premises belonged to plaintiff Khan; therefore, the receipt executed by her husband Mohammad Maksood Khan would not confer any right upon the defendant/appellant. As such, the receipt is inadmissible in evidence, as being irrelevant. Moreover, Mohammad Salim, shown as one of the witnesses in the receipt, was in jail on 20 th June, 2006, the date on which aforesaid receipt is alleged to have been executed. In support of aforesaid contention, plaintiff/respondent Khan has filed
information obtained by her from the jail authorities under the Right to Information Act . The aforesaid document is a letter dated 21.10.2008 issued by Public Information Officer of Central Jail, Bhopal and addressed to plaintiff Khan stating that Mohammad Salim was in jail from 22.05.2006 to 25.08.2006. It has also been contended that it is clear from the perusal of aforesaid receipt that the paper on which it has been written was rubbed on a dusty surface to make it look old. Therefore, it has been prayed that the application (I.A.No.11421/2008) be dismissed.
Another application under section 151 of the Code of Civil Procedure (I.A.No.13052/2008) has been moved on behalf of plaintiff/respondent Khan praying that criminal proceedings be initiated against the appellant by the Court for filing a forged document in the Court. Learned counsel for the respondent/plaintiff has also argued that as per her own admission, defendant Mehani was Branch Manager in a Financial Company. Thus, he was not a rustic villager. Therefore, it is inconceivable that he would part with the sum as large as Rs.1,50,000/-, without a proper and legally enforceable agreement for sale. Even the date of the alleged agreement of sale has not been mentioned in the pleadings of defendant no.1. Therefore, it has been prayed that the appeal be dismissed.
On perusal of the record and due consideration of rival contentions, the Court is of the view that this appeal must fail for the reasons hereinafter stated:
First of all the Court shall consider the application under Order 41 Rule 27 of the Code of Civil Procedure (I.A.No.11421/2008) filed on behalf of defendant no.1 Surendra Mehani. The additional evidence that is sought to be adduced by means of this application at the appellate stage, is the receipt of Rs.1,50,000/- allegedly executed by Mohammad Maksood Khan, husband of plaintiff/respondent wherein it has been mentioned that he has received Rs.1,50,000/- by way of advance out of total consideration of Rs.4,50,000/- for sale of the suit premises. It has further been mentioned in the document that remaining Rs.3,00,000/- shall be paid at the time of Registry. Since, it is admitted position of the defendents that the agreement for sale was oral and no written agreement was executed by plaintiff Khan, this document was vital for the case of defendant no.1; however, he failed to file this document during entire length of the trial. Such a document ought to have been filed along with written statement. It has been filed for the first time in this first appeal. Absolutely no reason has been assigned for failure to file this document in the application under Order 41 Rule 27. Therefore, the only explanation that can be offered is that it was not in existence at that point of time before the trial Court. It is clear from the letter of Public Information Officer of Central Jail, Bhopal, addressed to plaintiff Khan dated 21.10.2008 (Annexure-R/3) annexed to the reply of the plaintiff to application under Order 41 rule 27, that witness Mohammad Salim was in jail on 20 th of June, 2006; whereon, the receipt was purported to have been executed.
Moreover, it is also not disputed that at the time of the alleged oral agreement for sale between the parties, defendant Mehani was Branch Manager in a Finance Company. Thus, he was a person who was well versed in law. He has faced several criminal cases in the past including those for forgery and cheating. In this backdrop, it is inconceivable that he would part with a sum as large as Rs.1,50,000/-, in the year 2006 without getting proper agreement for sale executed in order to protect his rights. In any case the alleged receipt has been executed by Mohammad Maksood Khan, husband of plaintiff; whereas, the owner of the suit premises is not Mohammad Maksood Khan but his wife plaintiff Khan. Thus, even if such a receipt has been executed by Mohammad Maksood Khan, it will not bind the plaintiff and strictly speaking would be irrelevant for the purpose of suit. So far as the judgment passed by a coordinate bench of this Court in the case of Abdul Samad (supra) is concerned, the aforesaid set of circumstances did not exist in that case; therefore, it is distinguishable on facts and does not help the cause of the appellants in any manner.
On the basis of foregoing discussion, the application under Order 41 Rule 27 of the Code of Civil Procedure deserves to be and is accordingly dismissed.
Now the Court shall address other arguments advanced on behalf of the appellants. In these circumstances, the Court shall consider the oral evidence rendered by defendant Mehani with regard to oral agreement of sale entered into by plaintiff Khan with defendant Mehani.
To begin with, as already observed, it appears highly improbable that a person, who was a Branch Manager in a Finance Company, would enter into an oral agreement for purchase of a flat and pay Rs.1,50,000/- by way of advance without proper and legally enforceable contract. The excuse for doing so, given by defendant Mehani to the effect that he had close relations with plaintiff''s family is feeble, to say the least. It is the case of the defendant that an agreement was entered into in the presence of witnesses Kanhaiyalal (DW-2), who was the broker and Narayan Das (DW-3). Kanhaiyalal has stated that he had received Rs.3000/- by way of brokerage; however, he had not given any receipt of brokerage to defendant no.1. He has also not filed any document in respect of the fact that he is a broker nor has he filed any record which could prove that he had received aforesaid brokerage. In the cross-examination, he has further stated that Maksood, husband of the plaintiff, had asked him to get the flat sold; therefore, he had seen Maksood''s title deeds; whereas the flat is not in the name of Maksood but it is in the name of his wife plaintiff Khan. Thus, the statements of Kanhaiyalal (DW2) are not worthy of credence. Likewise, Narayan Das (DW3) has stated in his examination-in-chief that he is a property broker; whereas in the cross-examination he has stated that he is a salesman in a Sari shop. He has also failed to explain as to how he could remember the date of 20 th June, 2006; whereon, the agreement is said to have been entered into. He is also not aware as to whether the agreement was written or oral. Therefore, he could not remember whether he had signed
the agreement or not. Thus, no reliance can be placed upon the statement of Narayan Das (DW3) either. Thus, defendant Mehani has completely failed to prove that had entered into an oral agreement for purchase of the suit premises with plaintiff Khan and has been in possession thereof as purchaser.
Learned counsel for the defendants/appellants has rightly contended that plaintiff cannot take advantage of the weakness of the case of the defendants but must stand on his own legs. The case of the plaintiff is based upon rent note (Ex.P/38), which was not produced before the trial Court till evidence of plaintiff Khan and her husband Maksood Khan was over. The date of the rent note has neither been pleaded nor mentioned in the affidavit filed by the plaintiff Khan under Order 18 Rule 4 & 5 of the Code of Civil Procedure. The rent note was neither exhibited during the statement of plaintiff nor during the statement of her husband Maksood Khan. The aforesaid contentions of learned counsel for the defendants/appellants are factually correct. In paragraph 13 of her cross-examination, plaintiff Khan (PW-1) has admitted that she had not produced any agreement relating to the tenancy in the Court. She has further said that there was an agreement but since she had forgotten about the same, she could not produce the rent note in the Court. Likewise, her husband Maksood Khan (PW4) has admitted in paragraph 10 of his cross-examination that her wife had prepared the agreement of tenancy on the basis of his concurrence. He has also admitted that aforesaid agreement was not produced in the Court but has expressed that it would be
produced at appropriate time. He has also admitted that he is in the possession of the agreement.
It is true that the rent note was the agreement on the basis of which suit was filed. As such, it ought to have been produced along with plaint or at least with the permission of the Court, at the time of the statement of the plaintiff; however, the plaintiff failed to do so. No cogent reason has been given on behalf of plaintiff Khan for failure to file this vital document at the time of presentation of the plaint. Thus, it is clear that the rent note (Ex.P/38), which was presented for the first time during the cross-examination of the defendant (Paragraph No.18) is a document of suspicious nature and as such, cannot be relied upon.
However, on the strength of registered sale-deeds (Exs.P/1 and P/2 and possession letter (Ex.P/3), it is clear that plaintiff Khan was owner in possession of the suit premises. No law requires tenancy agreement to be in writing. Tenancy can very well be oral. The defendant has failed to prove that he had entered into an agreement for purchase of the suit premises from the plaintiff. In these circumstances, there is no ground to disbelieve the statements of the plaintiff Khan (PW1) and her husband Maksood Khan (PW4) to the effect that defendant no.1 had entered into the suit premises as tenant of plaintiff Khan at the rate of Rs.2900/- per month.
The next ground that has been raised on behalf of appellant/defendant Mehani is that the trial Court has recorded conflicting findings with regard to the ground under section
12(1)(b) of the Act. It has been submitted that at the end of paragraph no.23, the trial Court has recorded a finding that the ground under section 12(1)(b) is also proved; whereas at the end of paragraph no.24, the trial Court has held that the ground under section 12(1)(b) is not proved. This contention is not acceptable. A careful reading of paragraph no.23 reveals that at the end of paragraph no.23, the trial Court has recorded the argument of the learned counsel for the plaintiff to the effect that the ground available under section 12(1)(b) is proved. This argument advanced by learned counsel for the plaintiff has been considered in paragraph no.24; and after giving reasons, it has been held at the end of paragraph no.24 that the ground under section 12(1)(b) is not proved. As such there is no substance in aforesaid argument. In any case the ground under section 12 (1) (b) of the Act has not been found to have been proved by the trial Court and the finding is in favour of the appellants/defendants, which has not been contested.
No challenge has been mounted on behalf of appellants/defendants with regard to the findings recorded by the trial Court in respect of the grounds found to have been proved by the trial Court under sections 12(1)(c), 12(1)(a) or 12(1)(e) of the Act. Therefore, the findings recorded on the aforesaid grounds are affirmed.
On the basis of foregoing discussion, the Court is of the view that the trial Court was fully justified in decreeing the suit of the plaintiff/respondent Khan for eviction of the defendants/appellants from the suit premises on the grounds of
section 12(1)(c)(e) of the Act and for recovery of mesne profits at the rate of Rs.2900/- per month.
Consequently, this first appeal is dismissed. The impugned judgment and decree dated 30 th of July, 2008 passed by the Court of II Additional Judge to the Court of I Additional District Judge, Bhopal in Civil Appeal No.128-A/2007, is affirmed. The appellants shall bear their own costs and those of the respondent of this first appeal.