Kundikrao Bagre and Another. Vs. Sou Prathibhabai. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] - narcotics drugs & psychotropic substance act, 1985 - sections 8 - prohibition of certain operations -- the suspected narcotic recovered from the appellant was seized under seizure memo, exhibit p.22. the trial court by judgment and order dated 9.11.2005 passed in special case no.4/2005 held all the three accused, including the appellant guilty of offences punishable under sections 8/21(b) of the ndps act and sentenced them as noted above. against the judgment of the trial court, the appellant preferred criminal appeal no.2511/2005 before the high court. the high court dismissed both the appeals by judgment and order dated april 17, 2008. the appellant alone has come in appeal against the judgment of the high court. the present appeal arises out of the judgment dated 10.12.2007 passed by the learned single judge of the high court of allahabad (lucknow bench) whereby the learned single judge has dismissed the tax revision filed by the appellant under section 11 of the u. p. trade tax act (hereinafter referred to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. 1. the appellants-defendants have directed this appeal under section 100 of the code of civil procedure being dissatisfied with the judgment and decree dated 3.11.09 passed by vth additional district judge, fast track court, chhindwara in civil appeal no. 15-a/09 affirming the judgment and decree dated 11.12.06 passed by the civil judge, class-i, sonsar, district chhindwara in civil original suit no. 50-a/01 decreeing the eviction suit of the respondent against them on the grounds enumerated under section 12 (1) (a) and (e) of the m.p. accommodation control act 1961, in short "the act".2. facts giving rise to this appeal in short are that the respondents herein filed a suit for eviction against one smt. rangoobai predecessor in title of the appellant no. 1 and 2 and also against appellant no. 3 contending that such rangoo bai and appellant no. 3 being her monthly tenant were in possession of the disputed premises comprising two rooms for residential purpose @ rs.10/- per month for each room, the same is described with boundaries in the plaint. their tenancy month was in accordance with gregorian calender month. said rangoo bai and appellant no. 3 being defaulter in payment of rent had not paid the rent of such accommodation since the year 1993 from the time of earlier owner of this house from whom the same was purchased by the respondent in the year 1999 and the aforesaid tenancy was duly attorned in her favour. the respondent landlord was in bonafide genuine need of such accommodation for the residence of her family, for which she did not possess any other suitable and convenient vacant accommodation of her own in the township of sonsar, on which she sent notice to appellants demanding outstanding dues of rent with a further intimation to vacate the premises for the aforesaid need and also for carrying out the measure repairing of it, which could not be carried out without vacating the premises and by such notice the alleged tenancy was also terminated. inspite service of such notice on such principle defendant the same was not complied with, on which the above mentioned suit was filed by the respondent on the grounds available under section 12 (1) (a) (e) and (g) of the act.3. in the joint written statements of the said rangoo bai and appellant no. 3 yashoda bai by admitting the alleged tenancy in the disputed premises, it is stated that same was @ rs.10/- per month for both the rooms and not @ rs.20/- per month. it is also stated that they have not committed any default in payment of rent. the averments regarding alleged need of the respondent are also denied. in addition, it is stated that so far alleged need is concerned, the respondent is having sufficient alternate accommodation in her family either in the name of her husband or some other family members and, therefore, the alleged need could not be termed to be genuine or bonafide. some averements with respect of earlier civil original suit no. 94-a/93 was also stated and in such premises, the objection of res judicate was also taken. the ground regarding dilapidated condition of the house is also denied and the prayer for dismissal of the suit is made.4. in view of pleadings of the parties after framing the issues and recording evidence, on appreciation of the same by holding the relationship of landlord and tenant between the parties @ rs.10/- per month, the suit of the respondents was decreed by the trial court on the grounds of arrears of rent and bonafide genuine requirement under section 12 (1) (a) and 12 (1) (e) of the act while the decree on the ground of dilapidated condition of the premises under section 12 (1) (g) was refused. being dissatisfied with such decree, on filing the appeal by the appellants, the subordinate appellate court, after extending opportunity of hearing to the parties, on consideration by affirming such decree of the trial court, dismissed the same, on which the appellants have come to this court with this appeal.5. it is noted that during pendency of the first appeal, defendant rangoo bai died, on which her l.rs. - appellant no. 1 and 2 were substituted on record.6. shri mukesh mishra, learned appearing counsel of the appellants after taking me through pleadings of the parties, evidence laid by them and the exhibited documents argued that inspite availability of sufficient evidence showing the rent of disputed premises was regularly paid or deposited by the appellants and had not committed any default in that regard, contrary to such evidence concurrently both the courts below have passed the decree against the appellants under section 12 (1) (a) of the act. the same could not be sustained. he also argued that in cross examination the respondent-plaintiff pratibha- (pw-1) has categorically admitted that in the joint family of her husband and also in the name of her husband some alternate suitable vacant premises are available by which the alleged need could be satisfied. but the same is not pleaded in the plaint. in such premises, the alleged need could not be treated to be bonafide or genuine in any manner. but without considering such aspect, the courts below have concurrently decreed the suit against them under section 12 (1) (e) of the act and prayed for admission of this appeal on the proposed substantial questions of law, mentioned in the appeal memo. in the course of arguments the relationship of the tenants and landlord between the parties had not been challenged in any manner.7. keeping in view the arguments advanced by the counsel, i have carefully gone through the record of the courts below alongwith the impugned judgments. it is apparent that the relationship of landlord and tenant between the parties is not under dispute. so this appeal is not requiring any consideration on such question. so far rate of monthly rent is concerned, the concurrent findings of the courts below in this regard being based on appreciation of the evidence are findings of fact and same could not be interfered at this stage under section 100 of the code of civil procedure.8. so far committing the default in depositing the earlier dues and recurring sent is concerned, as per concurrent findings, inspite receiving the demand notice of such dues, the same was neither paid nor tendered by the appellants and such findings being in consonance and on sound appreciation of the evidence in view of the law laid down by the apex court in the matter of jamnalal and others v. radheshyam reported in 2000(2) jlj 1 could not be interfered under section 100 of the cpc at this stage. so it is held that this appeal is not involving any substantial question of law on this count.9. so far the decree passed by the courts below under section 12 (1) (e) of the act on the ground of bonafide genuine requirement of the disputed premises to the respondent for residence of her family is concerned, the concurrent findings of the courts below on such ground being based on appreciation and in consonance with the evidence, in view of the law laid down by the apex court in the matter of ranbirsingh vs. asharfilal reported (1995) 6 scc 580 could not be interfered under section 100 of the code of civil procedure at the stage. therefore this ground is also not giving rise to any substantial question of law.10.it is settled proposition of law that the premises owned by the husband or his joint hindu family could not be termed to be the alternate accommodation for the alleged need of his wife. although in the case at hand no such alternate accommodation has been found to be proved with the respondent. so this appeal is not involving any substantial question of law on such ground also. 11.in view of the aforesaid, i have not found any material or substance in the matter giving rise to any substantial question of law requiring any consideration under section 100 of cpc at this stage. consequently, this appeal being devoid of any such question deserves to be and is hereby dismissed at the stage of motion hearing. there shall be no order as to the costs.12. however, i would like to mention here that before winding up the arguments, appellants' counsel also argued that in case no substantial question of law is found in the matter for admission of the appeal, then keeping in view the circumstance that the appellants are in possession of the disputed accommodation since long, therefore, it would not be possible for them to vacate the same within short period of one month or two. therefore, subject to imposition of some conditions under the discretion of the court the appellants may be extended some time to vacate the premises.13. in response of said submission, shri jaideep sirpurkar, learned counsel for the respondent fairly submitted that on dismissing the appeal on admission stage, if some reasonable time is extended to the appellants under the discretion of the court by imposing some appropriate conditions for vacating the premises, then he did not have any objection in this regard.14. in view of such submissions and taking into consideration that the appellants are in possession of the disputed premises since long, it would not be possible for them to vacate the same in a short period of one month or two, hence, i deem fit to extend some time to them for vacating the disputed premises. thus, 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 appellants shall vacate the disputed premises and hand-over its peaceful possession to the decree holder on or before 31.08.2011, 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 every such month, the appellants are extended the time to vacate the premises up to 31.08.2011. failing in compliance of any of the aforesaid conditions, the respondent/decree holder and the executing court shall be at liberty to execute the decree of eviction forthwith with all aspects. 15.the appeal is dismissed as indicated above.

Judgment:
1. The appellants-defendants have directed this appeal under Section 100 of the Code of Civil Procedure being dissatisfied with the judgment and decree dated 3.11.09 passed by Vth Additional District Judge, Fast Track Court, Chhindwara in Civil Appeal No. 15-A/09 affirming the judgment and decree dated 11.12.06 passed by the Civil Judge, Class-I, Sonsar, district Chhindwara in Civil Original Suit No. 50-A/01 decreeing the eviction suit of the respondent against them on the grounds enumerated under Section 12 (1) (a) and (e) of the M.P. Accommodation Control Act 1961, in short "The Act".

2. Facts giving rise to this appeal in short are that the respondents herein filed a suit for eviction against one Smt. Rangoobai predecessor in title of the appellant no. 1 and 2 and also against appellant no. 3 contending that such Rangoo Bai and appellant no. 3 being her monthly tenant were in possession of the disputed premises comprising two rooms for residential purpose @ Rs.10/- per month for each room, the same is described with boundaries in the plaint. Their tenancy month was in accordance with Gregorian Calender Month. Said Rangoo Bai and appellant no. 3 being defaulter in payment of rent had not paid the rent of such accommodation since the year 1993 from the time of earlier owner of this house from whom the same was purchased by the respondent in the year 1999 and the aforesaid tenancy was duly attorned in her favour. The respondent landlord was in bonafide genuine need of such accommodation for the residence of her family, for which she did not possess any other suitable and convenient vacant accommodation of her own in the township of Sonsar, on which she sent notice to appellants demanding outstanding dues of rent with a further intimation to vacate the premises for the aforesaid need and also for carrying out the measure repairing of it, which could not be carried out without vacating the premises and by such notice the alleged tenancy was also terminated. Inspite service of such notice on such principle defendant the same was not complied with, on which the above mentioned suit was filed by the respondent on the grounds available under Section 12 (1) (a) (e) and (g) of the Act.

3. In the joint written statements of the said Rangoo Bai and appellant no. 3 Yashoda Bai by admitting the alleged tenancy in the disputed premises, it is stated that same was @ Rs.10/- per month for both the rooms and not @ Rs.20/- per month. It is also stated that they have not committed any default in payment of rent. The averments regarding alleged need of the respondent are also denied. In addition, it is stated that so far alleged need is concerned, the respondent is having sufficient alternate accommodation in her family either in the name of her husband or some other family members and, therefore, the alleged need could not be termed to be genuine or bonafide. Some averements with respect of earlier Civil Original Suit No. 94-A/93 was also stated and in such premises, the objection of res judicate was also taken. The ground regarding dilapidated condition of the house is also denied and the prayer for dismissal of the suit is made.

4. In view of pleadings of the parties after framing the issues and recording evidence, on appreciation of the same by holding the relationship of landlord and tenant between the parties @ Rs.10/- per month, the suit of the respondents was decreed by the trial court on the grounds of arrears of rent and bonafide genuine requirement under Section 12 (1) (a) and 12 (1) (e) of the Act while the decree on the ground of dilapidated condition of the premises under Section 12 (1) (g) was refused. Being dissatisfied with such decree, on filing the appeal by the appellants, the subordinate appellate court, after extending opportunity of hearing to the parties, on consideration by affirming such decree of the trial court, dismissed the same, on which the appellants have come to this court with this appeal.

5. It is noted that during pendency of the First Appeal, defendant Rangoo Bai died, on which her L.Rs. - appellant no. 1 and 2 were substituted on record.

6. Shri Mukesh Mishra, learned appearing counsel of the appellants after taking me through pleadings of the parties, evidence laid by them and the exhibited documents argued that inspite availability of sufficient evidence showing the rent of disputed premises was regularly paid or deposited by the appellants and had not committed any default in that regard, contrary to such evidence concurrently both the courts below have passed the decree against the appellants under Section 12 (1) (a) of the Act. The same could not be sustained. He also argued that in cross examination the respondent-plaintiff Pratibha- (PW-1) has categorically admitted that in the joint family of her husband and also in the name of her husband some alternate suitable vacant premises are available by which the alleged need could be satisfied. But the same is not pleaded in the plaint. In such premises, the alleged need could not be treated to be bonafide or genuine in any manner. But without considering such aspect, the courts below have concurrently decreed the suit against them under Section 12 (1) (e) of the Act and prayed for admission of this appeal on the proposed substantial questions of law, mentioned in the appeal memo. In the course of arguments the relationship of the tenants and landlord between the parties had not been challenged in any manner.

7. Keeping in view the arguments advanced by the counsel, I have carefully gone through the record of the courts below alongwith the impugned judgments. It is apparent that the relationship of landlord and tenant between the parties is not under dispute. So this appeal is not requiring any consideration on such question. So far rate of monthly rent is concerned, the concurrent findings of the courts below in this regard being based on appreciation of the evidence are findings of fact and same could not be interfered at this stage under Section 100 of the Code of Civil Procedure.

8. So far committing the default in depositing the earlier dues and recurring sent is concerned, as per concurrent findings, inspite receiving the demand notice of such dues, the same was neither paid nor tendered by the appellants and such findings being in consonance and on sound appreciation of the evidence in view of the law laid down by the Apex Court in the matter of Jamnalal and others v. Radheshyam reported in 2000(2) JLJ 1 could not be interfered under Section 100 of the CPC at this stage. So it is held that this appeal is not involving any substantial question of law on this count.

9. So far the decree passed by the courts below under Section 12 (1) (e) of the Act on the ground of bonafide genuine requirement of the disputed premises to the respondent for residence of her family is concerned, the concurrent findings of the courts below on such ground being based on appreciation and in consonance with the evidence, in view of the law laid down by the Apex Court in the matter of Ranbirsingh vs. Asharfilal reported (1995) 6 SCC 580 could not be interfered under Section 100 of the Code of Civil Procedure at the stage. Therefore this ground is also not giving rise to any substantial question of law.

10.It is settled proposition of law that the premises owned by the husband or his joint Hindu family could not be termed to be the alternate accommodation for the alleged need of his wife. Although in the case at hand no such alternate accommodation has been found to be proved with the respondent. So this appeal is not involving any substantial question of law on such ground also. 11.In view of the aforesaid, I have not found any material or substance in the matter giving rise to any substantial question of law requiring any consideration under Section 100 of CPC at this stage. Consequently, this appeal being devoid of any such question deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the costs.

12. However, I would like to mention here that before winding up the arguments, appellants' counsel also argued that in case no substantial question of law is found in the matter for admission of the appeal, then keeping in view the circumstance that the appellants are in possession of the disputed accommodation since long, therefore, it would not be possible for them to vacate the same within short period of one month or two. Therefore, subject to imposition of some conditions under the discretion of the court the appellants may be extended some time to vacate the premises.

13. In response of said submission, Shri Jaideep Sirpurkar, learned counsel for the respondent fairly submitted that on dismissing the appeal on admission stage, if some reasonable time is extended to the appellants under the discretion of the court by imposing some appropriate conditions for vacating the premises, then he did not have any objection in this regard.

14. In view of such submissions and taking into consideration that the appellants are in possession of the disputed premises since long, it would not be possible for them to vacate the same in a short period of one month or two, hence, I deem fit to extend some time to them for vacating the disputed premises. Thus, 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 appellants shall vacate the disputed premises and hand-over its peaceful possession to the decree holder on or before 31.08.2011, 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 every such month, the appellants are extended the time to vacate the premises up to 31.08.2011. Failing in compliance of any of the aforesaid conditions, the respondent/decree holder and the executing court shall be at liberty to execute the decree of eviction forthwith with all aspects.

15.The appeal is dismissed as indicated above.