Madhya Pradesh High Court
Radheshyam Gupta vs Harshad Mehta on 16 January, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. No.854/2006
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 16th OF JANUARY, 2025
SECOND APPEAL No.854 of 2006
RADHESHYAM GUPTA
Versus
HARSHAD MEHTA
...................................................................................................................................................................
Appearance:
Shri Vikas Tiwari, Advocate for appellant.
No one for the respondent/defendant although served and represented through
counsel(s).
..............................................................................................................................................................
JUDGMENT
This second appeal has been preferred by the appellant/plaintiff
challenging the judgment and decree dtd.10.02.2006 passed by 8th
Additional District Judge, Bhopal in Regular Civil Appeal No.108-A/2005
and 94-A/2005 reversing the judgment and decree of eviction
dtd.29.07.2005 passed by 6th Civil Judge Class-I, Bhopal in RCS No.
26A/2005 whereby plaintiff’s suit for eviction filed on the grounds under
Section 12(1)(b) & (f) of the M.P. Accommodation Control Act, 1961 (in
short “the Act”) was decreed by trial Court only on the ground under
Section 12(1)(b) of the Act, however, decree on the ground under Section
12(1)(f) of the Act was refused.
2 S.A. No.854/2006
2. Against the judgment and decree dtd.29.07.2005, plaintiff and
defendant both preferred separate regular civil appeals. Plaintiff preferred
civil appeal no.108-A/2005 whereas defendant preferred civil appeal no. 94-
A/2005. First appellate Court after hearing the parties, vide impugned
judgment and decree dtd.10.02.2006, allowed the civil appeal no. 94-A/2005
filed by the defendant/tenant and dismissed the civil appeal no. 108-A/2005
filed by the plaintiff/landlord and by reversing the trial Court’s judgment
and decree of eviction, dismissed the suit in its entirety i.e. on both the
grounds of eviction.
3. Facts in short are that the plaintiff had instituted a suit for eviction
against the defendant on the allegations that the plaintiff is owner of the
shop no. 14, situated in T.T. Nagar, Bhopal which was given on rent to the
defendant-Harshad Mehta. It is alleged in the plaint that up to March, 1995
the shop remained in possession of the defendant but thereafter he started
subletting the shop on rent to different persons/firms. It is also alleged that
the plaintiff is Ayurvedic Doctor and wants to start his own clinic and
alternatively alleged that he wants to open shop of Ayurvedic Medicines. It
is also alleged that the defendant is not paying monthly rent regularly. On
inter alia allegations, the suit was filed.
4. The defendant appeared and filed written statement and denying the
plaint averments contended that at the time of taking the shop on rent, it was
made clear that the defendant would be free to do the business in the shop
3 S.A. No.854/2006
along with his sister companies and partnership firms as well as other
persons and the shop is still in possession and control of the defendant. It is
also contended that the plaintiff is not Ayurvedic Doctor, therefore, he
cannot be said to be in bonafide need of the shop for starting his own clinic
or shop of Ayurvedic Medicines. It is also contended that defendant is
paying monthly rent regularly. On inter alia contentions, the suit was prayed
to be dismissed.
5. On the basis of pleadings of the parties, trial Court framed issues and
recorded evidence of the parties. In support of his case, the plaintiff
examined himself-Radheshyam (PW/1) and Jagdish Singh Rajput (PW/2)
and submitted documents (Ex.P/1 to P/12). Whereas in rebuttal, the
defendant did not examine himself but examined Prabhat Jain (DW/1),
alleged power of attorney holder of the plaintiff. After hearing arguments of
the parties, trial Court vide judgment and decree dtd.29.07.2005 decreed the
suit for eviction on the ground of subletting available under Section 12(1)(b)
of the Act, however refused to pass decree of eviction on the ground of
bonafide requirement available under Section 12(1)(f) of the M.P.
Accommodation Control Act.
6. Against the judgment and decree of eviction passed by trial Court on
the ground under Section 12(1)(b) of the Act, the defendant preferred civil
appeal no. 94-A/2005 and against refusal of decree on the ground under
Section 12(1)(f) of the Act, the plaintiff preferred civil appeal no.108-
4 S.A. No.854/2006
A/2005. After hearing the parties, first appellate Court vide impugned
judgment and decree dtd.10.02.2006, allowed the defendant’s appeal and
dismissed the appeal filed by the plaintiff and by reversing the judgment and
decree of eviction passed by trial Court, dismissed the suit for eviction in its
entirety i.e. on both the grounds of eviction.
7. Against the aforesaid judgment and decree passed by first appellate
Court, the plaintiff preferred instant second appeal, which came in hearing
on 30.11.2007 and was admitted for final hearing on the following
substantial questions of law:-
“1. Whether the learned two Courts below erred in substantial error of law
in dismissing the suit of plaintiff on the ground envisaged under Section
12(1)(f) of the M.P. Accommodation Control Act, 1961 by mis-interpreting
and misconstruing (Ex.P/9)?
2. Whether in absence of cogent evidence in rebuttal by the defendant, the
learned First Appellate Court erred in substantial error of law in dismissing
the suit of plaintiff under Section 12(1)(b) of the said Act?”
8. Learned counsel for the appellant/plaintiff submits that first appellate
Court has committed illegality in reversing well reasoned judgment and
decree of eviction passed by trial Court on the ground of subletting available
under Section 12(1)(b) of the Act, especially in the circumstances where no
documentary evidence was filed by the defendant regarding status of the
defendant as partner in the concerning firms/companies, to whom the shop
was sublet time to time, as well as in the circumstances when the defendant
5 S.A. No.854/2006
himself did not come in the witness box to prove his case. He further
submits that although trial Court dismissed the suit on the ground of
bonafide requirement under Section 12(1)(f) of the Act, but documents
(Ex.P/8 & P/9) show that the plaintiff is an Ayurvedic Doctor and can start
the clinic in the shop in question, therefore, the suit filed for eviction on the
ground of bonafide requirement, ought to have been decreed. He further
submits that even if the plaintiff failed to prove requirement of particular
business, then also in the light of proven bonafide need to start the business,
his suit ought to have been decreed. With these submissions, he prays for
allowing the second appeal.
9. No one is appearing on behalf of the respondent, though served and
represented through counsel(s).
10. Heard learned counsel for the appellant/plaintiff and perused the
record.
Substantial question of law No. 1:
11. The plaintiff had instituted the suit proposing bonafide need of
starting Ayurvedic clinic in the rented shop on the premise that he being
retired Ayurvedic Doctor, wants to start Ayurvedic clinic. As the status of
plaintiff as Ayurvedic Doctor was denied by the defendant, therefore, the
plaintiff submitted documents (Ex.P/8 & P/9), which are Mark-sheet given
by Hindi Sahitya Sammelan, Allahabad, relating to Ayurveda Ratna and a
Certificate issued by Madhya Pradesh Ayurvedic and Unani Chikitsa
6 S.A. No.854/2006
Paddhati and Prakritik Chikitsa Board, Bhopal showing the plaintiff to be
Ayurved Ratna. As such, it can be said that plaintiff is having requisite
qualification to start Ayurvedic clinic in the shop in question and in absence
of any rebuttal evidence, need of the plaintiff cannot be said to be non-
existent. Even otherwise in the State of Madhya Pradesh the landlord is not
required to plead the nature of business, which he wants to run in the shop.
12. Hon’ble the Supreme Court in the case of BABULAL AND OTHERS vs.
SHANKAR LAL AND OTHERS, (2008) 17 SCC 638 has held as under :-
“6. A bare perusal of the substantial question of law as framed by the High Court,
which is extracted above, shows that it is not even a question of law, much less a
substantial question of law. Under Section 12(1)(f) of the Act what are the
requirements, are stated in the impugned judgment itself. As found in the pleadings,
the appellants did plead that the suit premises was bona fide required for the purpose
of starting business. It is true that what kind or nature of business the appellants
wanted to start is not pleaded. It is not in dispute that in the evidence led, the case is
made out by the appellants as to the nature of the business they wanted to start in the
premises. The High Court did not say that there is no evidence in this regard but it
found fault that there is no pleading specifically about the nature of the business. The
learned counsel for the first respondent relied upon a decision of this Court in Hasmat
Rai v. Raghunath Prasad ((1981) 3 SCC 103) in support of his submission that the
plaint should have contained a specific averment as to the nature of the business. It is
not possible for us to find from the judgment that under Section 12(1)(f) of the Act,
even the nature or a particular type of business should be pleaded. The provision itself
speaks of bona fide requirement of premises for business. Assuming that the finding
of the first appellate court on the basis of the evidence was erroneous, which not a
fact is in this case, that itself was not a ground for the High Court to interfere with the
judgment of the first appellate court, particularly in the absence of any substantial
question of law that arose for consideration. The substantial question of law so
framed by the High Court, as already stated above, was not at all a substantial
question of law.”
13. It is well settled that if a license is required for a business, is not a
condition precedent for filing the suit for eviction and the license to start the
business can be taken after passing decree of eviction by the Court. A
coordinate Bench of this Court has in the case of Ramjidas and others vs.
Maqsum Ali reported in 1989 MPRCJ 39, held that “it will be too much to
7 S.A. No.854/2006
expect that a person must secure a licence before filing of a suit and then
keep on waiting till he secures possession of accommodation. In the present
case itself the suit was filed on 1.4.72. A requirement, genuine otherwise,
cannot be negative merely because the plaintiff has failed to secure a licence
entitling him to run the proposed business activity, which licence can be
obtained within a short time without much a do and would surely be
obtained before the plaintiff actually opens the shop.”
14. In view of the aforesaid factual and legal position in my considered
opinion Courts below have committed illegality in dismissing the suit for
eviction on the ground of bonafide requirement. As such, it is held that the
plaintiff is entitled to decree of eviction on the ground of bonafide
requirement available under Section 12(1)(f) of the Act .
Substantial question of law No. 2:
15. Trial Court upon due consideration of the material available on record
and in absence of any partnership deed or proof of existence/connection/
control of the defendant in the firms/companies, decreed the suit on the
ground of sub-letting available under Section 12(1)(b) of the Act. The
plaintiff has by adducing evidence of himself as well as of Jagdish Singh
Rajput (PW/2), proved that the defendant started subletting the shop to
several firms, companies and persons and in counter, the defendant has tried
to say that as per clause 3 of agreement of tenancy dtd.08.01.1982 (Ex.P/1)
the defendant was free to give the shops to its sister firms, companies and to
8 S.A. No.854/2006
do the business in partnership with other person/persons. As such, it was
burden of the defendant to prove that he is having control over the business
or nexus with those firms/companies/persons and with a view to prove this
fact he was required to examine himself, but for the reasons best known to
the defendant he did not enter into the witness box. Instead he examined
Prabhat Jain (DW/1), who has stated himself to be power of attorney holder.
Fact remains that instant suit was filed on 25.09.1996 whereas power of
attorney was allegedly given to Prabhat Jain (DW/1) on 19.08.2003.
16. In view of the aforesaid, testimony of the witness-Prabhat Jain
(DW/1) cannot be said to be admissible in evidence, especially to prove any
nexus of the defendant with the alleged partnership firms/persons or
companies and if the testimony of Prabhat Jain is ignored then there is no
evidence on behalf of the defendant in rebuttal to the evidence adduced by
the plaintiff.
17. In the case of Vidhyadhar vs. Mankikrao and another, (1999) 3 SCC
573 it has been held by Hon’ble the Supreme Court that if a party to the suit
does not come into the witness box and states his own case and does not
offer himself to be cross examined by the opposite side then it would be
presumed that the case set up by him is not correct. Relevant paragraph is
quoted as under :-
“16. Where a party to the suit does not appear into the witness box and states his own
case on oath and does not offer himself to be cross examined by the other side, a
presumption would arise that the case set up by him is not correct as has been held in
a series of decisions passed by various High Courts and the Privy Council beginning
from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230.
9 S.A. No.854/2006
This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR
1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v.
Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High
Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh
Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh‘s case
(AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender
Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness
box, it would give rise to an inference adverse against him. Similarly, a Division
Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand,
AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act
against a party who did not enter into the witness box.”
18. Aforesaid judgment in the case of Vidhyadhar (supra) was followed
by Hon’ble Supreme Court in the case of Janki Vashdeo Bhojwani and
another vs. Indusind Bank Ltd. and others, (2005) 2 SCC 217 and held as
under:-
“17. On the question of power of attorney, the High Courts have divergent views. In
the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2WLL 713 it was held
that a general power of attorney holder can appear, plead and act on behalf of the
party but he cannot become a witness on behalf of the party. He can only appear in
his own capacity. No one can delegate the power to appear in witness box on behalf
of himself. To appear in a witness box is altogether a different act. A general power
of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff
in the capacity of the plaintiff.”
19. In view of the aforesaid discussion and in my considered opinion,
first appellate Court has committed illegality in setting aside the decree of
eviction passed on the ground of sub-letting available under Section
12(1)(b) of the Act.
20. As a result of the aforesaid, impugned judgment and decree passed by
first appellate Court is set aside and that of trial Court is restored and with
the aforesaid modification, suit filed by the appellant/plaintiff for eviction
stands decreed on both the grounds under Section 12(1)(b) & (f) of the Act.
21. Resultantly, this second appeal succeeds and is hereby allowed.
10 S.A. No.854/2006
22. The defendant shall bear his cost as well as cost of the plaintiff of all
the three Courts. Counsel fee for the second appeal is quantified as
Rs.10,000/-.
23. Miscellaneous application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
KPS
Digitally signed by KUMARI PALLAVI SINHA
Date: 2025.01.20 16:47:13 +05’30’
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