Judgment:
1 FA No.344/1995 HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: Hon’ble Shri Justice A.K. Shrivastava First Appeal No.344/1995 .....APPELLANT/ M/s Universal Transport, New DEFENDANT Itwara Road, Bhopal (M.P.) -Versus- ....RESPONDENTS:
1. a) Smt. Saroj Kapoor widow of Late PLAINTIFFS Narsingh Kapoor 1(b) Smt. Neelam Tuneja, w/o Shri Vinot Tuneja, daughter of Late Narsingh Kapoor, 1(c) Smt. Sumeeta Chhabra w/o Suresh Chhabra, daughter of Late Narsingh Kapoor 1(d) Jitendra s/o Late Narsingh Kapoor; 1(e) Ku. Neetu Kapoor, daughter of Late Narsingh Kapoor; All residents of 'Koh-e-Fiza', Bhopal (M.P.) -------------------------------------------------------------------------------------- Shri Sanjay Agrawal, Advocate for the appellant. Shri T.S. Ruprah, Senior Advocate with Shri Harmeet Ruprah, Advocate for the respondents. -------------------------------------------------------------------------------------- ORDER
{ 27.06.2012 } Feeling aggrieved by the judgment and decree dated 23.9.1995 passed by Seventh Additional District Judge, Bhopal in Civil Suit No.35-A/1994 decreeing the suit of plaintiffs- respondents of eviction on the ground envisaged under Section 2 FA No.344/1995 12(1)(a) and (f) of the M.P. Accommodation Control Act, 1961 this appeal has been filed by the appellant-defendant under Section 96 of the CPC.
2. During pendency of this appeal two applications have been filed by the appellant; I.A. No.8772/2010 is an application under Order VI Rule 17 CPC to amend the written-statement and I.A. No.9136/2009 is for taking the subsequent events on record i.e. under Order XLI Rule 27 CPC. One more application, I.A. No.12629/2010 has been filed under Order I Rule 10 CPC to implead Smt. Rekha Kapoor w/o Shri Raj Kumar Kapoor as party to the appeal because according to the appellant- defendant a partition has taken place in the family of the plaintiffs-respondents and the suit property fell in the share of Smt. Rekha Kapoor.
3. The contention of Shri Agrawal, learned counsel for the appellant is that after partition has taken place in the family and after the property in dispute had fallen in the share of Smt. Rekha Kapoor a fresh agreement of tenancy has been executed between her and the appellant and therefore, on account of subsequent event the cause of action not does not survive and therefore, the suit be dismissed.
4. Despite opportunity was provided to the respondents, reply of these applications has not been filed. Smt. Rekha Kapoor was also directed to be served for hearing on I.A. 3 FA No.344/1995 No.12629/2010 under Order I Rule 10 CPC. Despite she has been served she has not appeared. The Supreme Court in Gulabbai vs. Nalin Narsi Vohra and others, (1991) 3 SCC 48.has held that in an eviction suit of bona fide need the subsequent event can be taken into consideration and similar is the earlier view of the Apex Court, Hasmat Rai and another v. Raghunath Prasad, AIR 198.SC 1711.
5. At present there is no material on record in order to hold that the application of amendment which has been filed is mala fide. Indeed, an inquiry is contemplated in order to pass the effective judgment whether cause of action for eviction still survives to the plaintiffs who originally filed suit for eviction, therefore, this Court has no option but to allow the said application. Accordingly, I.A. No.8772/2010 to amend the written-statement is allowed. The appellant is hereby permitted to amend the written-statement.
6. Since the amendment application to amend the written- statement has already been allowed, I.A. No.9136/2009, an application under Order XLI Rule 27 CPC for taking the subsequent events on record also stands allowed.
7. It has been put forth by learned senior counsel Shri Ruprah that despite the order has been passed by this Court the tenant-appellant has not deposited the rent due upon him. This point may be taken into account by the learned Trial Court at the 4 FA No.344/1995 time of adjudication of the suit. However, it is made clear that in case, in compliance to the order passed by this Court appellant- tenant has not deposited the rent he may suffer the consequences permissible under the law.
8. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned Trial Court of eviction is hereby set aside and the case is remanded back to learned Trial Court to decide the suit afresh.
9. The parties are hereby directed to appear in the Trial Court on 23rd July, 2012. Registry is hereby directed to send the record posthaste so as to reach that Court prior to 23.7.2012. On 23.7.2012 appellant-defendant shall amend the written- statement. The learned Trial Court is further directed to serve Smt. Rekha Kapoor w/o Shri Raj Kumar Kapoor, Resident of 349, B-Block, Indira Vihar, Airport Road, Bhopal. In case, plaintiffs-respondents do not appear in the Trial Court on 23.7.2012, the learned Trial Court shall issue notice to them afresh.
10. With the aforesaid observation, this appeal is allowed to the extent indicated herein-above with no order as to costs. (A.K. SHRIVASTAVA) Judge S/