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Judgment
S.K. Gangele, J—Appellant defendant has filed this against the judgment and decree 25.06.2012 passed in Civil Appeal No. 3-A/12. The Appellate Court affirmed the decree passed by the trial court under Section 12 (1) (h) of the M.P. Accommodation Control Act 1961, (in short the Act of 1961). However, the appellate court set aside the decree passed by the trial court in regard to Section 12 (1) (c) and (f) of the Act of 1961.
The plaintiff filed a suit for eviction. The plaintiff pleaded that a Gayatri Pathshala was in existence on plot 12/1 and 12/2 situated at old Marhatal, Block No. 83, Jabalpur from ancient times. The plaintiff decided to establish a Gayatri Sanskrit College for the purpose of imparting education of Sanskrit Language to the students. Previously the management of Sanskrit Pathshala was being done by the Manager and some tenants were inducted in some portion of the building. The defendant- appellant was tenant of the plaintiff. He did not pay the rent. The tenanted portion is old one and it was in dilapidated condition. The plaintiff further pleaded that plaintiff wanted to construct the building for the purpose of establishment of a Sanskrit College. No Objection Certificate was obtained from the Jabalpur Development Authority and Town & Country Planning. Development Fee of Rs.25825/- was also deposited. However, the defendant did not hand over the possession of the suit premises neither the defendant paid the rent to the plaintiff.
The present appellant - defendant in its Written Statement denied the fact that the plaintiff is the owner of the suit premises and the defendant is tenant of plaintiff. The defendant admitted the fact that the suit premises was known as Gayatri Sanskrit Pathshala and it was being run by late Shri Vishnath Tripathi and he was the landlord of the defendant. He had rented out the premises to the defendant. After death of Shri Vishwanath Tripathi, Shri Shrinath Tripathi became the owner of the property and defendant used to pay rent to Shri Shrinath Tripathi. The defendant further denied the fact that the condition of the suit premises was dilapidated and it requires reconstruction and it was needed for the purpose of running a college.
On 17.6.2014, the trial court proceeded ex-parte against the defendant. The defendant filed an application under Order 9, Rule 7 of the CPC for setting aside the ex-parte proceeding. That application was rejected by the trial court, vide order dated 1.2.2005. Thereafter again the application was filed by the defendant under Section 151 of CPC for grant of permission to defend the case. That application was also dismissed. The trial court decreed the suit and passed the decree of eviction against the appellant under Section 12 (1) (f) and 12 (1) (c) and 12 (1) (h) of the Act of 1961. Against the aforesaid judgment and decree, the appellant filed an appeal. The appellate court affirmed the judgment and decree passed by the trial court of eviction under Section 12 (1) (h) of the Act of 1961, however set aside the judgment and decree of eviction under Section 12 (1) (f) and 12 (1) (c) of the Act of 1961.
Learned Senior Counsel appearing on behalf of the appellant had contended that the appellate court committed and error of law in passing the decree of eviction against the appellant. The plaintiff is not landlord of the appellant. There was no landlord and tenant relationship, hence the suit filed the appellant was not maintainable. Learned Senior Counsel further submitted that after proceeding ex-parte on 7.3.2006, the trial court relied on certain documents filed by the plaintiff for which no opportunity was accorded to the appellant, hence the judgments passed by the trial court and first appellate court are against the law. It is further submitted by learned Senior Counsel that no case is made out against the appellant for passing the decree under Section 12 (1) (h) of the Act of 1961. The plaintiff does not fulfill the requirements of Section 12 (1) (7) of the Act of 1961.
In the present case no evidence was produced by the defendant. He was ex-parte. On behalf of the plaintiff one witness was examined. The defendant in his W.S. admitted that he was on rent of Gayatri Pathshala and he was inducted by Shri Tripathi. No rent note was filed by the defendant at the time of filing of the W.S. to the effect that defendant was a tenant of Shri Tripathi. The defendant - appellant categorically pleaded that initially he was inducted as tenant by Shri Tripathi and after his death, his son became the owner of the suit premises and the defendant paid the rent to him. The defendant himself admitted that the suit premises is of the ownership of Sanskrit Pathshala. Burden was on the defendant to prove that Sanskrit Pathashala was being owned by Shri Tripathi and he was the owner of the suit premises. There is no rent receipt filed by the defendant alongwith the W.S. to show that the rent was paid to Tripathi in individual capacity. The plaintiff pleaded that Sanskrit Pathshala was being run by him and it is contended by counsel for the defendant that Shri Tripathi was Manager of the Sanskrit Pathshala. The plaintiff filed certain documents to show that the land was leased out in his favour. It is admitted position of law that in landlord tenant matters, the question of ownership is of incidental in nature. Both the courts below after appreciation of evidence have held that the plaintiff is entitled for a decree of eviction. Those findings are in accordance with law.
On behalf of the plaintiff Mr. Ritish Pandey, who was power of attorney holder deposed that the plaintiff is the owner of an area and defendant is a tenant. The plaintiff wants to establish a Sanskrit College on the plot. In the records of Municipal Corporation the plaintiff name was recorded as owner. The documents in regard to mutation of Municipal Corporation, fixation of rent by the Municipal Corporation, Khasra Nazul and notices of Municipal Corporation, map of construction of the house sanctioned by Municipal Corporation and NOC provided by the Joint Director, Town and Country Planning were filed before the trial court. All the documents were filed on 6.5.2006. Application for setting aside the ex-parte order was rejected by the court on two dates, one is one on 1.2.2005 and another order is of 21.7.2006. The appeal filed by the defendant against ex-parte proceeding was also dismissed. Learned Senior Counsel raised an objection that when the documents were produced, then the it was obligatory on the part of the court to give an opportunity to the defendant to rebut the documents. The appeal filed by the defendant against the ex-parte proceeding was dismissed by the court. In such circumstances, in my opinion, looking to the facts and circumstances of the case, it was not obligatory on the part of the trial court to accord opportunity to the defendant - appellant when the documents were filed. The judgment in the matter of Union of India (UOI) Vs. Dwarkadass Radha Krishna Oil Mill, AIR 1957 Patna 688 relied on by learned Senior Counsel in this regard is distinguishable on facts. Thereafter the appellant filed First Appeal against the original decree, which was time barred. The court dismissed the appeal on the ground of limitation. Thereafter Second Appeal was filed before this Court which was registered as S.A. No. 1244 of 2007. This court allowed the appeal and condoned the delay in filing the first appeal before the appellate court and thereafter the impugned judgment has been passed by the appellate court.
Learned Senior Counsel further contended that in accordance with Section 12 (1) (h), it was obligatory on the part of the plaintiff to plead that the accommodation requires rebuilding or making substantive addition. The plaintiff has failed to prove the aforesaid fact. In my opinion, both the courts below have after appreciation of evidence held that the building required reconstruction and these findings are based on proper appreciation of evidence. There is also a finding that plaintiff received permission from the Municipal Corporation for the purpose of reconstruction and NOC was also received from the Town & Country Planning Department, hence the court has rightly granted a decree of eviction under Section 12 (1) (h). In my opinion, the courts have appreciated the evidence properly. The appellate court has already observed that the plaintiff will be bound by the provisions of Section 18 of the Act of 1961. No substantial question of law involves for determination in this appeal. It is hereby dismissed. However, six months time is granted to the defendant - appellant to vacate the suit premises subject to giving any undertaking in this regard before the trial court and fact that the appellant shall comply with other conditions of the judgment and decree and he shall pay the rent to the plaintiff - respondent on each and every month.
No order as to costs.