1. The appellant/defendant has directed this appeal under Section 100 of the CPC being aggrieved by the judgment and decree dated 8.9.2009 passed by 20 t h Additional District Judge , District Jabalpur in regular civil appeal No.27-A/09 affirming the judgment and decree dated 24.2.2009 passed by the 11 t h Civil Judge Class-I, Jabalpur in original civil suit No. 112-A/08, decreeing the suit of the respondent for eviction against the appellant with respect of a shop the non-residential accommodation described in the plaint, situated in Adhartal, Jabalpur.
2. The facts giving rise to this appeal in short are that respondent herein filed the suit for eviction against the appellant, with respect of the above-mentioned shop situated in Adhartal, Jabalpur, described with all particulars in the plaint and also shown in the annexed map with the plaint, on the ground of arrears of rent under section 12(1)(a) and also on the ground of his bonafide genuine requirement of the disputed accommodation under section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (for short `the Act') for the business of his sons Naval Kishore and Manish for which they did not have any other accommodation of his own in the city of Jabalpur. As per some other averments of the plaint, the appellant is stated to be his monthly tenant at the rate of Rs.300/- per month in such shop for non-residential purpose. The appellant, being defaulter in payment of the rent, did not pay the rent between 1.11.09 to 31.5.2002, on which, a demand notice was given by him to the appellant through his counsel vide dated 1.6.2002. The same was served, inspite that, within the statutory period, the rent was not paid. Besides this, the respondent is in need of the alleged accommodation for the business of his son Naval Kishore for opening the General Store. At present, he is working in the shop of his younger brother. The need of Manish is also stated in the plaint. In these circumstances, prayer for eviction on the above mentioned ground is made.
3. In the written statement of the appellant, by admitting the tenancy of the accommodation, the rate of rent was disputed stating that the same is Rs.250/- per month and accordingly the same was regularly paid to the respondent. Appellant also spent Rs.17000/- in repairing for keeping the disputed house in tenanted condition and as per agreement with the respondent, the same was to be adjusted in the sum of the rent. In such premises, no default has been committed by him in payment of the monthly rent. On the contrary the appellant has claimed against the respondent Rs.8000/-. In addition, it is stated that the respondent is having three vacant shops of his own in possession and, in such premises, the alleged need could not be deemed to be neither bonafide nor genuine. Only for creating the undue pressure for enhancing the rent of the accommodation upto Rs.1000/-, the suit has been filed with malafide intention and prayer for dismissal of the suit is made.
4. In view of the pleadings of the parties, after framing the issues and recording the evidence, on appreciation of the same, the suit of the respondent has been decreed by the trial court against the appellant for eviction under section 12(1)(a) and 12(1)(f) of the Act. On challenging such decree before the subordinate appellate court by the appellant, on consideration, by affirming the same, the appeal was dismissed, on which, the appellant has come forward to this court with this appeal.
5. Shri Umakant Sharma, learned Senior counsel, after taking me through the pleadings, evidence available on the record and the exhibited documents, argued that in the available circumstances, the approach of both the courts below holding the appellant to be defaulter in payment of the rent, is not sustainable under the law as the entire arrears and regular rent was deposited by the appellant in accordance with the provision of section 13(1) and (2) of the Act but without considering such aspect, the decree has been passed under section 12(1)(a) of the Act under wrong premises. In continuation, he said that the respondent was not the only owner of the property. As such, the property was belong to joint family of the respondents and in the absence of any proof of partition between the members of the family, the respondent could not be termed to be the landlord of the disputed accommodation and, in such premises, decree passed under section 12(1)(f) of the Act by the courts below is not sustainable. He also argued that the available alternate accommodation with the respondent as stated by the appellant has not been taken into consideration. Even some of such accommodations, have not been pleaded by the respondent in the plaint with proper explanation and without considering all such aspects, the impugned decree on the ground of bonafide genuine requirement is passed by the courts below under wrong premises, therefore, at this stage, by admitting this appeal, re-appreciation of the evidence is necessary and, in such premises, he prayed for admission of this appeal on the proposed substantial questions of law mentioned in the appeal memo.
6. Having heard the counsel, I have carefully examined the record of both the courts below and perused the impugned judgments. It is apparent fact on record that the impugned decree has been concurrently passed by both the courts below for eviction of the appellant under section 12(1)(a) and 2(1)(f) of the Act and such findings being based on appreciation of the evidence could be termed only findings of fact and, according to my opinion, the same is not giving rise to any question of law rather than the substantial question of law requiring any consideration at this stage under section 100 of the CPC. In such premises, this appeal deserves to be dismissed at the initial stage of motion hearing.
7. So far the argument of the appellant's counsel relating to section 12(1)(a) of the Act is concerned, mere perusal of the impugned judgment and the evidence of the parties, it is revealed that appellant was remained defaulter in payment of the regular rent of the disputed accommodation and in such premises, the impugned decree has been rightly passed by the courts below and the same could not be interfered at this stage in view of the principle laid down by the Apex Court in the matter of Jamnalal and others v. Radheshyam (2000) 4 SCC 380.
8. So far the argument of the appellant's counsel on the ground of bonafide genuine requirement under section 12(1)(f) is concerned, in view of the settled proposition of the law laid down by the Apex Court in the matter of Dr. Ranbir Singh v. Asharfi Lal-(1995) 6 SCC 580 holding that the concurrent findings of the courts below based on appreciation of the evidence on the ground of bonafide genuine requirement, could not be interfered at the stage of second appeal under section 100 of the CPC, such argument has not appealed me for framing any substantial question of law in the matter.
9. So far the argument of the appellant's counsel saying that the respondent could not prove that he is the owner of the disputed accommodation and acquired absolute title in the property on their family partition thus he was not entitled to file the suit under section 12(1)(f) of the Act is concerned, it is apparent fact on record that in any case the respondent being co-parcenor of the joint property was the co-owner of the property and if the property was not divided between them even then in view of the law laid down by the Apex Court in the matter of Sri Ram Pasricha v. Jagannath and others- AIR 1976 SC 2335 in which it was held that every co-parcenor is the owner of every part of the property till it is divided between amongst the co-parcenors of the family or co-owners, the respondent had a right to file the suit for eviction. Even otherwise for the sake of arguments, if it is deemed that the suit is filed by the co-owner or co-parcenor of the family even then in view of the aforesaid cited case the courts below have not committed any error of law, in such premises also, I have not found any perversity in the impugned judgment giving rise to any substantial question of law requiring any consideration at this stage.
10. In view of the aforesaid, I have not found any circumstance giving rise to any question of law for admission of this appeal, resultantly, in the lack of it, the same is hereby dismissed at the stage of motion hearing.
11. However, taking into consideration that the appellant is in possession of the disputed accommodation since long, therefore, it would not be possible for him to vacate the same within short period. Therefore, subject to some conditions, I deem fit to extend some time to him for vacating the disputed premises. Hence, it is directed that on depositing the entire decreetal sum including the arrears of the rent, if any, and on furnishing appropriate surety to the satisfaction of the trial court within thirty days from today along with an undertaking that the appellant shall vacate the disputed premises and hand- over its peaceful possession to the decree holder on or before 28.02.2011, then subject to payment of regular monthly mesne profit of the disputed accommodation at the rate of the monthly rent as held by the courts below within 15 days from the end of such every tenancy month, the appellant is extended the time to vacate the premises up to 28.2.2011. Failing in compliance of any of the aforesaid condition, the respondent/decree holder and the executing court shall be at liberty to execute the decree of eviction forthwith with all aspects.
12. The appeal is dismissed as indicated above.