Prahlad Kanthali vs Manjeet Singh Gandhi

Hon''ble Shri Justice N.K. Mody

Being aggrieved by the judgment dated 28/9/2011 passed by X ADJ, Indore in F.A.NO. 4/2011 arising out of judgment dated 31/1/2011 passed by V Civil Judge class-I, Indore in civil suit No. 113-A/09 whereby the suit filed by respondent was decreed u/s 12(1)(a) and (f) of the M.P.Accommodation Control Act (which shall be referred hereinafter as "the Act") was maintained, the present appeal has been filed. Short facts of the case are that respondent filed a suit on 25/9/09 for eviction against the appellant alleging that respondent is owner of a house bearing NO. 9/1-A, Narsingh Bazar, Indore and appellant took the shop No. 4 on monthly rent of Rs. 860/-in the year 1991 for starting the business of T.V. Repair. It was alleged that appellant is in arrears of rent w.e.f. 1/1/2009 which has not been paid inspite of notice of demand. It was alleged that respondent requires the suit accommodation for his younger son Baldeep who has completed the Law Graduation and practicing as an Advocate, for which respondent is having no other alternative suitable accommodation. It was prayed that suit be decreed. Suit was contested by the appellant by filing the written statement wherein plaint allegations were denied and rate of rent and arrears were also disputed. It was also denied that respondent requires the suit accommodation bonafidely and it was also denied that respondent is having no other alternative accommodation to fulfill the requirement. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial court decreed the suit u/s 12(1)(a) and (f) of the Act, against which an Appeal was filed which was dismissed, hence this appeal.

Learned counsel for appellant submits that impugned judgment passed by learned courts below is illegal and deserve to be set aside. It is submitted that in the facts and circumstances of the case, there was no justification on the part of learned courts below to hold that respondent requires the suit accommodation for the need of his son. It is submitted that shop Nos. 1 and 2 are in occupation of the respondent where the son of respondent is running his office which has not been considered by the learned courts below in right perspective. It is submitted that an application was filed under Order 41 Rule 27 CPC along with Vidhi Dharohar Smarika published by District Bar Association, Indore in which office address of B.S.Gandhi is shown as 9/1-A Narsingh Bazar which proves that son of respondent is running the office as shown by the appellant, but inspite of that learned appellate court neither recorded any evidence nor the case was remanded to trial court for recording additional evidence. For this contention, reliance is placed on a decision in the matter of Sheikh Bannu Vs. Radhakrishnna Dubey, 1997 MPWN 337 wherein this court has held that in a case where additional evidence admitted in appeal, wholesole remand not proper, either evidence with effect to additional evidence should be recorded by appellate court or for that purpose case should be remanded. Reliance is also placed on a decision in the matter of Smt. Rafatjahan Vs. Haji Mohammad dated 18/12/2008 rendered in S.A. No. 210/07. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and impugned judgment passed by learned courts below be set aside.

Learned counsel for respondent submits that both the courts below have concurrently found that respondent requires the suit accommodation bonafidely for running the office by his son who is practicing Advocate. It is submitted that shop is lying closed as the appellant is in jail in connection with some criminal offence. It is submitted that no rent has been deposited by the appellant as per section 13(1) of the Act. It is submitted that it is true that application under Order 41 Rule 27 CPC was allowed by the appellate court but at the same time respondent is not disputing the address published in the magazine. The submission of respondent is that respondent and his son are carrying on business from the nearby shop from where the whereabout of younger son of respondent can be collected. In the facts and circumstances of the case learned appellate court committed no error in not recording any evidence or in not remanding the case as it was not the need. It is submitted that appeal be dismissed. After hearing the parties, this court is of the view that findings recorded by learned courts below are concurrent and based on due appreciation of evidence, which requires no interference, hence the appeal has no force and the same stands dismissed. Since in consequence the appellant/defendant has to vacate the suit accommodation, therefore, to save the appellant from the peril of eviction, it is made clear that the order of eviction shall not be executed on or before 8 months on the condition that the appellant herein files an undertaking before the learned trial court within six weeks to the following effect namely:-

that the appellant herein shall not induct any other person in the suit premises and shall hand over vacant and peaceful possession of the said premises to the respondent/landlord on or before 8 months.

That the appellant herein shall pay to the respondent/landlord arrears of rent, if any, within one month from today and shall pay to the respondent/landlord future compensation for use and occupation of the suit premises month by month before the 10th day of every month.

No order as to costs.