Madhya Pradesh High Court
Vijay Kumar Jain vs Jama Masjid Committee on 16 January, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 SA No.58/2001
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. 58 of 2001
VIJAY KUMAR JAIN
Versus
JAMA MASJID COMMITTEE
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Appearance
Shri R.K. Verma- Senior Advocate with Shri Saurabh Shrivastava and Shri
Bhuvnesh Sharma - Advocates for the appellants.
None for the respondent.
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JUDGMENT
This second appeal had been preferred by the original appellant/defendant
Vijay Kumar Jain (now dead, through LRs., Smt. Kanti Jain and Ors.)
challenging the judgment and decree dated 28.11.2000 passed by V Additional
District Judge, Sagar in regular civil appeal No.13-A/2000 reversing the
judgment and decree dated 03.02.2000 passed by II Civil Judge Class-II, Sagar
in civil suit No.47-A/1998 whereby trial court dismissed the
respondent/plaintiff’s suit and in appeal filed by plaintiff, first appellate court
vide judgment and decree has decreed the suit.
2. Facts in short are that plaintiff instituted the suit with the allegations that
the rented property ‘Kotha No.2’ is a waqf property, in which the defendant was
inducted as tenant on rent of Rs.600/-. The plaintiff being waqf is exempted
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Signed by: SWETA SAHU
Signing time: 1/20/2025
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2 SA No.58/2001
from operation of the M.P. Accommodation Control Act, 1961 (in short ‘the
Rent Act‘), hence by issuing notice dated 16.01.1998 the tenancy was
terminated w.e.f. 28.02.1998. It is also alleged that the plaintiff is in need of the
tenanted premises for extension of its existing office. On inter alia allegations
the suit was filed.
3. The defendant appeared and filed written statement denying the plaint
averments and denied existence of the waqf. It is contended that Asraf Ali is not
competent to file the suit. It is also contended that sufficient accommodation is
available with the plaintiff for the alleged need of extension of office. Infact the
plaintiff is not in need of the accommodation, but he wants enhanced rent of
Rs.1,200/- instead of agreed rent of Rs.600/- and is in habit of enhancing the
rent and to re-let the vacant accommodation on enhanced rent. 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 after hearing both the parties dismissed the
suit vide judgment and decree dated 03.02.2000. In appeal filed by plaintiff,
first appellate court has by allowing the appeal, reversed the judgment and
decree of trial court and decreed the suit in its entirety, vide judgment and
decree dtd.28.11.2000.
5. Against the said judgment and decree, instant second appeal was filed,
which came in hearing on 11.05.2001 and was admitted for final hearing on the
following substantial questions of law :-
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3 SA No.58/2001
“1. Whether the findings arrived at by the learned first appellate Court that the tenancy in suit
has legally been determined under Section 106 Transfer of Property Act and regarding the bonafide
neef of suit premises, are perverse as they have been arrived at by ignoring the material evidence on
record ?
2. Whether the learned first appellate Court erred in law in rejecting the applications filed by
the defendant/appellant under Order 41 Rule 27 CPC and under Order 6 Rule 17 CPC ?”
6. Learned counsel for the appellant submits that there is no dispute about
relationship of landlord and tenant/lessor and lessee in between the parties but
tenancy was not determined/terminated legally as per Section 106 of the
Transfer of Property Act, 1882 (in short ‘the TP Act‘). He submits that the suit
was filed with the averments that the plaintiff is in need of the tenanted
premises for extension of its existing office, but the plaintiff has failed to prove
this fact and from testimony of Mushtaq Ali (PW-1) made in paragraphs 11, 15,
17 and 20, it is clear that the need of office has vanished and it is also clear that
the plaintiff is in habit of getting vacated the shops and to re-let on higher rent.
He submits that by way of filing applications under Order XLI Rule 27 CPC as
well as Order VI Rule 17 CPC before first appellate court, subsequent events
were sought to be brought on record by the defendant, but first appellate court
committed illegality in dismissing the applications. Placing reliance on a
decision given by Hon’ble the Supreme Court in the case of Sanjay Kumar
Singh vs. The State of Jharkhand in civil appeal No.1760/2022 dated
10.03.2022, he submits that both the applications ought to have been allowed.
With these submissions he prays for allowing the second appeal.
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4 SA No.58/2001
7. No one is appearing on behalf of respondent, though served and
represented.
8. Heard learned counsel for the appellant/defendant and perused the record.
9. Undisputedly, in view of Section 3(2) of the Rent Act, the plaintiff/Waqf
is exempted from operation of the Rent Act, therefore, relationship of landlord
and tenant/lessor and lessee between the parties being an admitted fact, was
required to be determined by way of issuance of notice under Section 106 of the
T.P. Act. In the present case the plaintiff by issuing notice dated 16.01.1998
(Ex.P/5) terminated the tenancy asking the defendant to vacate the tenanted
premises. Although the defendant has denied service of notice, but the factum of
service of notice has been found established by first appellate court. Although
the trial court dismissed the suit, but factum of issuance/service of notice
including termination of tenancy w.e.f. 28.02.1998 was found to be proved even
by trial Court vide paragraph 19 of its judgment. It is also clear from the record
that the defendant has not pleaded and proved any illegality in the notice issued
under Section 106 of the T.P. Act.
10. Although the plaintiff has contended that it is in need of the tenanted
premises for extension of existing office, but in my considered opinion even if
the plaintiff fails to prove this fact, the same does not come in the way of
passing of decree of eviction under provisions of the Transfer of Property Act.
If the plaintiff has, by issuance of notice under Section 106 of the TP Act,
terminated the tenancy validly, then decree of eviction can be passed straight
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5 SA No.58/2001
way, which has rightly been passed by first appellate court. Accordingly, there
being no illegality and perversity in the judgment and decree of first appellate
Court, substantial question of law No.1 formulated by this Court is decided
against the appellant/defendant.
11. Along with the applications under Order XLI Rule 27 CPC as well as
under Order VI Rule 17 CPC, the plaintiff had tried to bring a fact on record to
the effect that plaintiff has already constructed its office and is in habit to re-let
vacant accommodation/shops on higher rent.
12. As has been discussed above in aforementioned paragraphs 8 & 9, even if
contention of the defendant is taken to be true, the same cannot be a ground to
non-suit the plaintiff after valid termination and determination of tenancy as
required under the law. In this manner, first appellate Court does not appear to
have committed any illegality in dismissing the applications under Order XLI
Rule 27 CPC and Order VI Rule 17 CPC.
13. Resultantly, substantial question of law No.2 is also decided against the
appellant/defendant.
14. Resultantly, the second appeal fails and is hereby dismissed.
15. 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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