F.A. No.740/2009 (1) HIGH COURT OF M. P. JUDICATURE AT JABALPUR Single Bench : Hon'ble Shri Justice A.K. Shrivastava First Appeal No.740/2009 Appellant Manohar S/o. Pannalal Rai, R/o. Katra Ward, Bina, District Sagar (M.P.) Vs. Respondent Smt. Premkali W/o. C.D. Cladius, R/o. Veer Sawarkar Ward, Bina, District Sagar (M.P.) _____________________________________________________ Shri Avinash Zargar and Shri Amit Bhurrak, Advocates for appellant. Shri Mohd. Ali and Shri Vijay Shukla, Advocates for respondent. _____________________________________________________ JUDGMENT
(Delivered on this 17th day of January, 2013) Feeling aggrieved by the judgment and decree dated 12.10.2009 passed by learned First Additional District Judge, Khurai District Sagar in Civil Suit No.95-A/2006 whereby the suit of plaintiff for eviction on the ground envisaged under Section 12(1) (a) and (f) of M.P. Accommodation Control Act 1961 (for brevity “Act”.) has been decreed, this appeal under Section 96 of CPC has been filed by the defendant.
2. Here in this appeal where the “plaintiff”. is mentioned it F.A. No.740/2009 (2) would mean “respondent”. and similarly “defendant”. would mean the “appellant”..
3. In brief the suit of the plaintiff is that the defendant is her tenant @Rs.1000/- per month and the tenancy commences from the first date of each month and terminates on the last date of that month. The rent is due upon the tenant-defendant from September 2001 but despite repeated demands the defendant did not pay the rent due upon him which is Rs.60,000/-. But, since some of the rent has become time-barred hence she has filed a suit for realization of rent of three years prior to the date of suit which is 28.11.2006 and has thus claimed Rs.30,000/- towards rent. According to plaintiff, despite having sent the demand notice to pay the rent, the same has not been paid to her by the tenant within two months as a result of which she has filed the suit inter alia on the ground envisaged under Section 12(1)(a) of the Act.
4. It has been further pleaded by plaintiff that the suit shop and all the adjacent shops to it which are four in number are required bona fide by her for the purpose of starting the business of showroom of Bajaj Automobiles. According to the plaintiff after getting the suit shop and other adjacent shops vacated, the entire structure will be dismantled and thereafter a big showroom will be constructed to carry on business of Bajaj Automobiles which will be carried out by her son. It is also pleaded that the plaintiff is not having any reasonable suitable vacant non-residential F.A. No.740/2009 (3) accommodation of her own in the township where she could start the said business of her son. Hence, the suit has also been filed for eviction on the ground envisaged under Section 12(1)(f) of the Act.
5. The defendant filed written-statement and denied the plaint averments. The rate of rent has been denied; the factum of obtaining the suit accommodation on tenancy basis is also denied and the alleged bona fide need of son is also denied. According to the defendant the rate of rent is Rs.150/- per month and further it has been pleaded in the additional pleas that he is not a tenant but the land on which suit shop was constructed was obtained by him on licence basis and since he has raised a permanent structure upon it with the permission of landlord, the nature of lease is permanent. Hence, it has been submitted that suit for eviction under the provisions of Act cannot be decreed.
6. Learned Trial Court framed necessary issues and after recording the evidence of the parties, decreed the suit but it was held that rate of rent is not Rs.1,000/- per month as pleaded by the plaintiff but it is Rs.150/- per month.
7. In this manner this appeal has been filed by the defendant before this Court under Section 96 of CPC.
8. Vehemently, it has been submitted by Shri Zargar and Shri Bhurrak learned counsel for appellant that indeed the defendant is a licencee and a specific plea has been raised by him F.A. No.740/2009 (4) in the additional pleas of his written-statement in this regard. Further it has been contended that by giving permission to raise the construction over the open piece of land the defendant has become licencee in perpetuity and therefore learned Trial Court erred in law in holding that the appellant is a tenant. Learned counsel submitted that a document was executed between the parties when the land was given to him on licence basis but that document has been deliberately concealed by the plaintiff and despite an application under Order 11 Rule 14 CPC was filed by him which and allowed by learned Trial Court, it was not filed and thus an adverse inference should have been drawn against the plaintiff because if that document would have been filed the grain would have come out of chaff and it would have become luminously clear that status of defendant is that of a licencee and not that of tenant. To buttress his submission, learned counsel has placed heavy reliance upon the decision of this Court in Bhagchand v. Administrator, Municipal Corporation, Indore and other 2005(2) MPHT 41 and Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others AIR 196.SC 1413.
9. It has been then propounded by him that in order to debar the defendant from one forum of the appeal deliberately with an ulterior motive by putting higher valuation, the suit has been filed in the Court of Additional District Judge although it is having pecuniary jurisdiction of Civil Judge. Hence, the plaint either should F.A. No.740/2009 (5) be rejected or returned to the plaintiff to present in the proper Court which is Civil Judge having pecuniary jurisdiction. To bolster his submission learned counsel has placed heavy reliance upon the decision of Supreme Court in Kiran Singh and others v. Chaman Paswan and others AIR 195.SC 340.Learned has also put emphasis to Sections 15 and 99 of CPC and has submitted that a suit is to be filed in a Court having lowest valuation and further since valuing the suit on lower side goes to the root of the matter and hits the pecuniary jurisdiction of the Court therefore plaint should have been either rejected or it should have been returned back to the plaintiff for its presentation in the proper Court. Learned counsel has also placed heavy reliance on the decision of Supreme Court in Sujir Keshav Nayak v. Sujir Ganesh Nayak (1992) 1 SCC 73.and Rambilas s/o. Amal Sai and others v. Jagatram s/o. Ramprasad 2000(2) MPLJ 170 Learned counsel further submits that in this regard he filed an application in the Trial Court also but, the said application has been wrongly dismissed by the said Court. Since the learned Trial Court has categorically found on the basis of evidence placed on record that rate of rent is Rs.150/- therefore it was incumbent upon the Court either to return the plaint to the plaintiff for presentation before the proper court or to reject the same. Having not done so, learned Trial Court has erred in law.
10. It has been then contended by learned counsel that F.A. No.740/2009 (6) according to plaintiff rate of rent is Rs.1000/- per month but according to defendant the same is Rs.150/- per month. The learned Trial Court fixed the provisional rent @Rs.500/- per month on 22.11.2007 and from this date within the time fixed by learned Trial Court, the defendant is regularly depositing the rent in the court and if that would be the position he would get protection under Section 12(3) and 13(5) of the Act and eventually decree of eviction under Clause (a) to Section 12(1) of the Act cannot be passed.
11. By putting a deep dent upon the case of plaintiff in regard to bona fide need it has been advocated by learned counsel that son of plaintiff is already indulged in hotel business since he is running a lodge and therefore by clothing the alleged ground of bona fide need, the suit which has been filed is with an ulterior motive that after vacating the shop in question it may be let out on higher rent. Hence it has been submitted by him that the alleged bona fide need of the plaintiff is also not proved. On the aforesaid submissions, it has been prayed that by allowing this appeal the impugned judgment and decree passed by learned Trial Court be set aside and suit of the plaintiff be dismissed in toto.
12. On the other hand, Shri Mohd. Ali and Shri Vijay Shukla learned counsel appearing for plaintiff argued in support of the impugned judgment and have submitted that there are umpteen receipts of receiving rents from the defendant by the plaintiff and in F.A. No.740/2009 (7) those receipts the status of defendant has been shown to be that of tenant and if that would be the position there is no scintilla of doubt in order to hold that the defendant is a tenant. Learned counsel submits that although application under Order XI Rule 14 CPC was allowed by the Trial Court and plaintiff was directed to produce the documents but after due diligence it could not be produced on account of thunder showers and heavy rains, the rainy water rushed inside the house of the plaintiff and destroyed not only the documents which were sought to be produced but several other documents and hence for this reason they could not be produced and therefore no adverse inference can be drawn against the plaintiff.
13. By replying the submission of learned counsel for defendant it has been submitted by learned counsel for plaintiff that looking to the overwhelming rent receipts which are proved in the evidence it is proved that from time to time the rent was enhanced. Initially it was Rs.75/- only but lateron it was enhanced from time to time. Thus, although the plaintiff was unable to file counter-file of the receipts in which rent of Rs.1000/- per month is mentioned but it could be inferred that rate of rent was Rs.1000/- per month although it was not accepted by learned Trial Court and in these facts and circumstances it cannot be said that learned Trial Court was not having pecuniary jurisdiction and suit should have been filed in the Court of Civil Judge having pecuniary jurisdiction on the F.A. No.740/2009 (8) lower side.
14. So far as granting the decree under Section 12(1)(a) and (f) of the Act is concerned, learned counsel submits that cogent reasons have been assigned by the Trial Court decreeing the suit and since the finding is based upon the correct appreciation of evidence, interference is not needed. On these premised submissions, it has been prayed that this appeal be dismissed with cost being bereft of any merit.
15. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part.
16. So far as the status of defendant whether he is a tenant or licencee is concerned, much has been argued by learned counsel for defendant but entire argument is somersaulted on account of admission made by defendant Manohar himself in his earlier statement Ex.D/1 which is a certified copy of his testimony given in Civil Suit No.8-A/1992 filed on behalf of husband of plaintiff namely P. Claudius against one Devendra. In that case, the present defendant was examined as DW4. In para 11 and 12 of his cross-examination in the present case when he was confronted by his earlier statement Ex.D/1 he tried to save his skin and instead of saying that he has given such type of statement in the aforesaid suit he has stated that he did not remember that he gave such type of statement in Ex.D/1. At this juncture only it would be condign to go through the statement of defendant embodied in Ex.D/1 which F.A. No.740/2009 (9) he deposed in favour of Devendra in another suit for eviction. On bare perusal of para 1 and 2 of his statement (Ex.D/1) in the aforesaid suit it is gathered that specifically he is admitting that he is a tenant of plaintiff. not only this further he has admitted that while giving the suit shop to him on tenancy basis, the tenancy was oral. Thus, looking to the admission of the defendant himself it cannot be said that he is a licencee and not the tenant. According to me, admission is the best evidence which opposite party can rely unless and until it is properly explained, but, in the present case there is no proper explanation.
17. At this juncture only, it would be germane to mention that not only one or two but umpteen rent receipts (Ex.P/9 to P/17) have been filed by the plaintiff wherein defendant has been shown to be the tenant and therefore according to me there is overwhelming material on record that the defendant is not a licencee but is the tenant. Hence, I am of the view that looking to the oral and documentary evidence which has been rightly appreciated by learned Trial Court holding that defendant is the tenant of plaintiff and not licencee it does not require any interference because the said finding has been rightly arrived at.
18. So far as the putting higher valuation with an ulterior motive to debar the defendant from one forum of the appeal and for this reason the Trial Court was not having any pecuniary jurisdiction is concerned, from the rent receipts which are filed it F.A. No.740/2009 (10) is gathered that from time to time the rate of rent was enhanced. Ex.P/9 is the rent receipt in which the rate of rent was Rs.75/- per month which was paid to the plaintiff by defendant in the month of January, 1980. In the rent receipt Ex.P/10 the rate of rent Rs.150/- is mentioned. Apart from this there is one important document Ex.P/6 which is the house tax assessment register of Municipality Bina wherein annual valuation of the shops including the suit shop has been assessed to be Rs.37,800/-. Hence, although rate of rent was Rs.1000/- in the instant suit has not been found to be proved by learned Trial Court but in these facts and circumstances it cannot be said that Court below was not having pecuniary jurisdiction and with an ulterior motive the suit was filed in a court having higher valuation. Even otherwise, at the time of fixation of provisional rent, learned Trial Court fixed the rate @Rs.500/- per month although after recording the evidence on merits rate of rent was found to be Rs.150/- per month and therefore in these peculiar facts and circumstances it cannot be said that Court below was not having pecuniary jurisdiction.
19. So far as the bona fide need to start the business of Bajaj Automobiles of plaintiff’s son is concerned, there is positive evidence of the plaintiff and her son for whose need suit accommodation has been sought to be vacated. Apart from overwhelming oral evidence, the business of Bajaj Automobiles Agency is being carried out by plaintiff’s son in a tenanted F.A. No.740/2009 (11) premises in that regard umpteen proved documents are filed. The finding of learned Trial Court from para 26 to 41 may be seen in this regard and according to me the finding so arrived at by learned Trial Court is based upon correct appreciation of oral and documentary evidence and for convenience those findings are not reiterated here. I fully concur with such finding. Hence, I am of the view that since the plaintiff’s son is carrying on business in a rented premises, therefore, it cannot be said that plaintiff’s need is not bona fide. Therefore, I am of the view that learned Trial Court has rightly decreed the suit of plaintiff under the ground envisaged under Section 12(1)(f) of the Act.
20. However, there is some merits in the contention of learned counsel for appellant that no eviction decree can be passed under Section 12(1)(a) of the Act for the simple reason that after having fixed the provisional rent @Rs.500/- per month the tenant in the stipulated time has deposited the entire arrears of rent and is also depositing monthly rent regularly as envisaged under Section 13 of the Act and if that would be the position according to me the defendant is far away from the clutches of eviction decree on the ground under Section 12(1)(a) of the Act, since he is protected under section 12(3) and 13(5) of the Act. Thus, I am of the view that learned Court below erred in passing the decree of eviction on the ground envisaged under Section 12(1)(a) of the Act. Learned Trial Court has adjusted the amount in future rent as well F.A. No.740/2009 (12) as by passing the decree of mesne profit.
21. During the pendency of appeal, applications have been filed under Order VI Rule 17 CPC, under Order XI Rule 21 CPC and also under Order XLI Rule 27 CPC by the appellant. All these three applications are also considered and I find that there is no merit in all the three applications and they deserve to be dismissed.
22. Application under Order VI Rule 17 CPC to amend the written-statement has been filed raising the question of jurisdiction. According to learned counsel for appellant since the plaintiff is a retired government employee therefore the only jurisdiction vest in the Rent Controlling Authority and not the Civil Court who has passed the decree of eviction. An application under Order XLI Rule 27 CPC has also been filed to take additional document on record in that regard, but, I am of the view that both these applications deserve to be dismissed because this point has already been put to rest by Full Bench of this Court in Ashok Kumar v. Baboolal and another 1998(1) JLJ 31.wherein option is given to plaintiff as to whether he wants to go to Rent Controlling Authority or to Civil Court. The Full Bench further held that if a civil suit is filed the same cannot be said to be barred under the law. Further I may add that instant suit has also been filed for eviction on the ground envisaged under Section 12(1)(a) of the Act and this ground can be adjudicated by the Civil Court only. Hence, the application under Order VI Rule 17 CPC to amend the written-statement as well as F.A. No.740/2009 (13) application under Order XLI Rule 27 CPC are hereby rejected. So far as application under Order XI Rule 21 CPC is concerned, I do not find any merit in the contention of learned counsel for the appellant that because the learned Trial Court allowed the application of defendant under Order XI Rule 14 CPC and directed the plaintiff to produce the document of rent note but same was not filed, therefore, suit should be dismissed. According to me, under Rule 21 of Order XI a suit can be dismissed or the defence can be struck off when there is an order of this Court under Order XI Rule 1, Rule 12 and Rule 15 CPC and not under Order XI Rule 14 CPC. At the most the consequences are that adverse inference may be drawn against that party. I have already held hereinabove that looking to the admission of the defendant that he is tenant no adverse inference can be drawn against the landlord. Hence all the three applications are dismissed.
23. For the reasons stated hereinabove this appeal is allowed in part. The impugned judgment and decree passed by learned Trial Court decreeing the suit on the ground envisaged under Section 12(1)(a) of the Act is set aside and suit of plaintiff on that count is hereby dismissed. Rest of the part of judgment and decree is hereby affirmed. Looking to the facts and circumstances, the parties are directed to bear their own costs.
24. Before parting with the case, on the submission made by Shri Amit Bhurrak, learned counsel for appellant that defendant F.A. No.740/2009 (14) is tenant in the suit shop for more than 32 years therefore some breathing time may be provided to appellant to vacate the suit premises so that he may obtain an alternative shop to carry on business which is established for more than three decades. This argument has been vigorously opposed by Shri Shukla, learned counsel for respondent. However, looking to the facts and circumstances time is granted to vacate the suit premises on the following terms and conditions:- (i) The appellant shall vacate the suit premises on or before 31.07.2014; (ii) he shall deposit the monthly rent as fixed by the Trial Court @Rs.150/- per month regularly in terms of Section 13(1) of the Act. The excess amount which he has deposited would be adjusted in its entirety in the future rent; (iii) he shall further continue to deposit monthly rent in the court below after the adjustment of the excess amount which has been deposited by the appellant; and (iv) appellant shall give an undertaking in the Trial Court satisfying the aforesaid condition on or before 28.02.2013. However, it is made clear that if in case any of the conditions is violated by the appellant, the respondent shall be free to get the decree executed even prior to 31.07.2014. (A.K. Shrivastava) Judge 17.01.2013 SS