Madhya Pradesh High Court
Ashok Kumar Dureja vs Shri Rajendra Kumar Jain on 16 January, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 SA No.560/2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON 16TH OF JANUARY, 2025
SECOND APPEAL No. 560 of 2012
ASHOK KUMAR DUREJA
Versus
SHRI RAJENDRA KUMAR JAIN
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Appearance
Shri Amit Sahani and Shri Priyankush Jain - Advocates for the appellants.
Shri R.K. Sanghi with Shri Pankaj Bathre - Advocates for the respondents.
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JUDGMENT
This second appeal had been preferred by the original appellant/defendant
Ashok Kumar Dureja (now dead, through LR Lalit Dureja) challenging the
judgment and decree dated 10.04.2012 passed by IV Additional District Judge,
Jabalpur in civil appeal No.1-A/2010 affirming the judgment and decree dated
02.12.2009 passed by VII Civil Judge Class-I, Jabalpur in civil suit No.228-
A/2009 whereby trial court decreed the plaintiff’s suit for eviction on the
grounds available under Section 12(1)(c) (nuisance) & (f) of the M.P.
Accommodation Control Act, 1961 (in short ‘the Act’) and in appeal filed by
the appellant/defendant/tenant, first appellate court affirmed the judgment and
decree of eviction passed by trial court on the ground under Section 12(1)(f) of
the Act, however, refused to confirm the decree of eviction on the ground under
Section 12(1)(c) of the Act.
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2. Facts in short are that the plaintiff-Rajendra Kumar Jain (now dead,
through LRs) instituted a suit for eviction of two rented shops admeasuring total
area 400 sq.ft (200 sq.ft. each) situated in Subhash Nagar, Jabalpur in which the
defendant was inducted as tenant by the plaintiff. It is alleged that the shops in
question are bonafidely required by plaintiff for himself as well as for his son
(Manish Kumar) and daughter-in-law for starting departmental store and there is
no other alternative vacant accommodation available in the township. It is
further alleged that the defendant has also created nuisance. On inter alia
allegations the suit was filed.
3. The defendant appeared and filed written statement denying the plaint
averments. It is contended that the plaintiff is not in need of the rented
shops/premises for the alleged requirement of plaintiff himself and his son
Manish Kumar as well as daughter-in-law and there is sufficient alternative
accommodation available with the plaintiff to satisfy the alleged need. It is also
contended that the defendant has not created any nuisance and just with a view
to get decree of eviction, false ground of eviction has been taken. On inter alia
contentions the suit was prayed to be dismissed.
4. On the basis of pleadings of parties, trial court framed issues and
recorded evidence of the parties and upon due consideration of the material
available on record decreed the suit on both the grounds under Section
12(1)(c)&(f) of the Act vide judgment and decree dated 02.12.2009.
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3 SA No.560/2012
5. Upon filing appeal by the defendant/tenant, first appellate court vide
impugned judgment and decree dated 10.04.2012 upheld the decree of eviction
on ground of bonafide requirement available under Section 12(1)(f) of the Act
and refused to confirm the judgment and decree of eviction on the ground of
nuisance under Section 12(1)(c) of the Act. Against which instant second appeal
was filed by the appellant/defendant, which came in hearing on 13.09.2017 and
was admitted for final hearing on the following substantial questions of law :
“(i) Whether, the conduct of respondent hiding the availability of
alternative suitable accommodation during the pendency of suit
disentitles him from any relief from the Court ?
(ii) Whether the subsequent events can be considered at this stage
against the respondent ?
(iii) Whether, the application under Order 6 Rule 17 of the CPC and
under Order 41 Rule 27 of the CPC filed by the appellant deserves to be
allowed and effect thereof ? and
(iv) Whether the findings of lower appellate Court is perverse and
unsustainable under the law for the ground under Section 12(1)(f) of the
M.P. Accommodation Control Act ?”
6. Learned counsel for the appellant submits that even before filing of
instant suit, the plaintiff was in possession of the accommodation sufficient to
start the alleged business and even during pendency of suit, accommodation
situated by the side of shop No.5 of the possession of Vijay Steel Centre, fell
vacant and was received by the plaintiff, but that was re-let to Kamlesh M. Shah
and this fact was hidden by the plaintiff deliberately, which is sufficient to
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4 SA No.560/2012
disentitle the plaintiff from getting the relief. He submits that as the aforesaid
facts were not in knowledge of the defendant, therefore, could not be placed
before the Courts below and as and when he came to know, the same have been
brought on record by way of filing applications under Order XLI Rule 27 CPC
as well as Order VI Rule 17 CPC, which being relevant and based on
subsequent events deserve to be considered even at the second appellate stage.
He submits that as the plaintiff came in possession of the vacant
accommodation during pendency of the suit, therefore, in the light of decisions
in the case of Hasmat Rai & Anr. vs Raghunath Prasad, AIR 1981 SC 1711;
Gayatri and others vs. Ashish Kumar, 2010(3) MPLJ 103; Banarsi Devi Jain
vs. M.P. Transport Company and another, 2008(2) MPLJ 155; Gyasi Nayak vs.
Gyanchandra Jain, 2010(3) MPLJ 203; and Ibrahim Khan vs. Dr. Devendra
Naath Bhargfava, I.L.R. 2023 M.P. 1262 alleged need of the plaintiff got
vanished. Accordingly, he submits that the suit for eviction decreed by courts
below on the ground of bonafide requirement available under Section 12(1)(f)
of the Act deserves to be dismissed. In support of his submissions learned
counsel for the appellant also placed reliance on the decisions in the case of
Kamlabai and Ors. Vs. Mangilal Dulichand Mantri, (1987) 4 SCC 585 (Para
27) and Mohni Bai Gurdasmal Hirwani vs. Kundanlal Chotelal Jain, 2000(1)
MPLJ 571 and prays for allowing the second appeal.
7. Learned counsel appearing for respondents/plaintiffs/landlord supports
the judgment and decree of eviction passed by courts below. He submits that the
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findings recorded by courts below on the question of bonafide requirement do
not raise any substantial question of law. As regards the accommodation
allegedly came in possession of the plaintiff Rajendra Kumar Jain, learned
counsel submits that the document of lease which has been placed on record by
the defendant in additional evidence along with the application under Order XLI
Rule 27 CPC itself shows that the entire accommodation situated behind and
beside the shop No.5 was in possession of M/s. Vijay Steel Centre even prior to
filing of the suit and by way of such lease deed executed in favour of Kamlesh
M. Shah, previous lease deed was changed/modified with the consent of
partners of M/s Vijay Steel Centre and the plaintiff did not come in actual
possession of that accommodation after filing of the suit and still that
accommodation is with Kamlesh M. Shah. He submits that all these facts were
in knowledge of the defendant, but just with a view to linger on hearing of the
second appeal, the applications under Order XLI Rule 27 CPC and Order VI
Rule 17 CPC have been filed, which in the light of averments made in first and
second paragraph of the lease deed dtd.07.12.2006, deserve to be dismissed.
8. In support of his submissions learned Counsel for the respondents placed
reliance on the decision in the case of Khemchand Mulchand vs. Government of
Madhya Pradesh, Bhopal and Ors., (1968) 12 MP CK 0003; D.N. Jeevaraju and
Another vs. D. Sudhakar and Ors., (2010) 14 SCC 69; Syed Dastagir vs. T.R.
Gopalakrishna Setty, (1999) 6 SCC 337; Shri Udhav Singh vs. Madhav Rao
Scindia, (1977) 1 SCC 511; Nadanbai wd/o Bhagirath and Ors. Vs. Khushilal
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and Ors., 2008(3) MPLJ 501; Radheshyam vs. Ramakant (Deceased) thr. LRs,
2004(2) MPLJ 332; Har Narain Daga vs. Heeralal and Ors., (2001) 1 SCC 41;
Bhupendra Singh vs. Shyam Babu Agarwal, 2013 (3) MPLJ 281; Syeda
Rahimunnia vs. Malan Bi (Dead) by LRs and Another, (2016) 10 SCC 315;
Tarunveer Singh vs. Mahesh Prasad Bhargava, 2018(2)MPLJ 596; Meenal
Eknath Kshirsagar (Mrs.) vs. Traders and Agencies and Anr., (1996) 5 SCC
344; and Uday Shankar Upadhyay and Ors. Vs. Naveen Maheshwari, (2010) 1
SCC 503. With these submissions he prays for dismissal of second appeal.
9. Heard learned counsel for the parties and perused the record.
10. The suit for eviction of the tenanted premises was filed for the need of
plaintiff-Rajendra Kumar Jain as well as his son Manish Kumar and daughter-
in-law (i.e. wife of Manish Kumar) for starting departmental store. Although
plaintiff Rajendra Kumar Jain has died during pendency of second appeal, but
the need of his son Manish Kumar and daughter-in-law still subsists, regarding
which courts below have concurrently decreed the suit holding their need to be
genuine.
11. In the case of Kishore Singh vs. Satish Kumar Singhvi 2017(3) JLJ
375, a coordinate Bench of this Court has relied upon the decision of Supreme
Court in the case of Ragavendra Kumar vs. Firm Prem Machinary and
Company AIR 2000 SC 534, and held that the findings recorded on the
question of bonafide requirement do not give rise to any substantial question of
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law, therefore and in absence of any rebuttal evidence, such findings being
binding, are hereby affirmed.
12. So far as the question of availability of vacant suitable alternative
accommodation with the plaintiff on the date of suit or came in his possession
during pendency of suit, is concerned, even on the date of filing of the suit, the
plaintiff was not in possession of such alleged premises nor it came in
possession of the plaintiff, which is said to have been let out by the plaintiff
Rajendra Kumar Jain to Kamlesh M. Shah during pendency of suit.
13. The lease deed dated 07.12.2006 relied upon by learned Counsel for the
appellant in support of his arguments and filed along with the application under
Order XLI Rule 27 CPC itself shows that entire accommodation was in
possession of Vijay Steel Centre. The deed also shows that Kamalesh M. Shah
is brother of partners of Vijay Steel Centre and due to some internal
arrangement amongst the three brothers, lease deed of 07.12.2006 was executed
by modifying the lease deed dtd.08.12.2003. As this accommodation was not
available on the date of filing of instant suit with the plaintiff and even during
the suit it did not come in possession of the plaintiff, therefore, it cannot be said
that the plaintiff after getting vacated the same, had re-let to other person i.e.
Kamlesh M. Shah and that act had vanished the need of plaintiff.
14. In view of the aforesaid factual scenario there is no question of hiding
the alternative suitable accommodation. As such, decisions relied upon by
learned counsel for the appellant/defendant are not applicable to instant case.
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8 SA No.560/2012
At the same time it is mentioned that although subsequent events can be
considered at the stage of second appeal, but in view of aforesaid discussion,
alleged subsequent events are not infact subsequent events, resultantly the
applications under Order 6 Rule 17 CPC and Order 41 Rule 27 CPC deserve to
be and are hereby dismissed.
15. In view of aforesaid discussion, substantial question of law No.1 to 4
formulated by this Court are decided against the appellant/defendant/tenant and
in favour of respondents/plaintiffs/landlord.
16. Upon asking, the Counsel for the appellant has refused to seek any time
for vacating the rented accommodation, therefore, no time is being granted.
17. Accordingly, the second appeal fails and is hereby dismissed. However,
no order as to the costs.
18. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
ss
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Signed by: SWETA SAHU
Signing time: 1/20/2025
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