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Shrenik Kumar Nandecha v/s Preetpal Singh (Deceased) Through Legal Representatives

    Second Appeal No. 402 of 2019

    Decided On, 16 August 2019

    At, High Court of Madhya Pradesh Bench at Indore

    By, THE HONOURABLE MR. JUSTICE VIVEK RUSIA

    For the Appellant: P.K. Bhatt, Advocate. For the Respondent: S.C. Agrawal, Advocate.



Judgment Text

1. Appellant/defendant has filed the present appeal being aggrieved by the judgment and decree dated 28.09.2012 passed by Ist Civil Judge, Class-I, Ratlam under section 12(1)(a) of the M.P Accommodation Control Act, 1961 (for short 'the Act of 1961') and judgment and decree dated 07.01.2019 passed by Ist Additional District Judge, Ratlam of IInd Additional District Judge, Ratlam affirming and granting the decree under section 12(1)(a) (c) of the Act of 1961 in favour of the plaintiff. The appellant has also filed an application under section 13(6) of the Act of 1961 seeking condonation of delay in depositing the rent.

Facts of the case are as under:

2. Respondent No.1 being plaintiff (since dead and now represented through legal representatives) filed a suit for eviction, arrears of rent and mesne profit against the defendant. The plaintiff is the owner of house bearing municipal No.15, situated at Dat Ki Pull, Ratlam He had rented one room the said house (size 10" x 20") to the defendant. The tenancy is oral.

3. In the month of September, 2007 the plaintiff being the owner of the suit property disconnected supply of electricity and water to the defendant. The defendant approached the Rent Controlling Authority and vide order dated 16.01.2008 he has been permitted to obtain independent connection. Vide order dated 21.02.2011 passed under section 13(2) of the Act of 1961 the trial Court has directed the defendant to pay the rent at the rate of Rs.600/- per month and Rs.250/- per month as electricity charge to the plaintiff and further directed to deposit an amount of Rs.14,450/- in the Court for the period of 01.01.2006 to 3

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1.05.2007 and the plaintiff has been restrained to withdraw the said amount during the pendency of the plaint. The defendant has also been directed to deposit the rent regularly w.e.f 01.09.2007 at the rate of Rs.600/- per month. The aforesaid facts are not in dispute.

4. Accordingly to the plaintiff the defendant was inducted as a tenant in the suit accommodation at the rate of Rs.700/- per month as rent and Rs.300/- for electricity and water supply. The defendant paid Rs.1000/- as rent last time on 31.12.2005 and thereafter he stopped paying the rent, therefore, the plaintiff filed the suit for recovery of the rent. Vide notice dated 07.01.2008 the plaintiff terminated the tenancy w.e.f 31.03.2008 and directed the defendant to pay the arrears of rent and vacate the premises. It was pleaded that the defendant created nuisance by disturbing peace of the plaintiff for which he made a complaint to the Superintendent of Police, Ratlam on 22.09.2007. The plaintiff also claimed the eviction decree on the ground of bona fide need. According to the plaintiff he has three sons who have got married and now they have children and the plaintiff is not having any other suitable alternative accommodation in the Ratlam city to accommodate all of them. The plaintiff also alleged that the defendant is using the common passage as a shop, hence created nuisance in collusion with the neighbours, therefore, he is also entitled for a decree under section 12(1)(c) of the Act of 1961.

5. The defendant filed the written statement denying the allegations made in the plaint. He also denied the title of the plaintiff. According to the defendant his father was inducted as tenant 27-28 years ago at the rate of rent of Rs.15/- per month and at present the rent is Rs.200/- per month with Rs.50/- per month as electricity and water supply charges. He denied the rent of Rs.700/- and Rs.300/- per month. According to the defendant he sent the rent by way of money order but the plaintiff has returned the same and there is no default on his part in respect of payment of rent. He denied decree under section 12(1)(a)&(c) also and prayed for dismissal of the suit with cost.

6. Trial Court framed nine issues for adjudication and after appreciating the evidence came on record denied the decree under section 12(1)(c) & (e) but granted a decree under section 12(1)(a) of the Act of 1961. According to the trial Court, the defendant committed default in payment of rent despite at interim rent fixed by the trial Court. The defendant failed to produce the receipts of the rent payable from January, 2012 to September, 2012. Vide judgment and decree dated 28.09.2012 the trial Court decreed the suit by directing the defendant to hand over possession within two months and also deposit the arrears of rent at the rate of Rs.600/- per month. Being aggrieved by the aforesaid judgment and decree, defendant preferred a first appeal and the plaintiff assailed the judgment and decree in respect of denial of decree under section 12(1)(c) & (e) of the Act of 1961. After re-appreciating the evidence came on record vide judgment and decree dated 07.01.2019 the first appellate Court not only affirmed the decree under section 12(1)(a) but also granted a decree under section 12(1)(c), hence the present second appeal before this Court.

7. Shri P.K.Bhatt, learned counsel for the appellant submits that both the Courts below have wrongly granted the the decree under section 12(1)(a) as the defendant did not committ any default in payment of the rent. By order dated 21.02.2011 the trial Court has fixed the rent of Rs.600/- per month and the defendant has deposited the entire arrears of rent of Rs.14,450/-. The appellant is seeking permission from this Court to deposit the arrears of rent, therefore, the decree under section 12(1)(a) is not sustainable. So far as the decree under section 12(1)(c) is concerned, the appellant Court has wrongly granted the decree because the appellant did not create any nuisance. The appellant has filed certain documents under order 41 Rule 27 CPC in respect of title of the plaintiff but that application has wrongly been rejected. The plaintiff has concealed the rent deed before the trial Court. In support of his contentions, he has placed reliance over the judgment passed by the Apex Court in the case of Shivshankar Gurgar vs. dilip (2014) 2 SCC 465 in which the Apex Court has held that arrears of rent can be deposited in the appeal also in order to seek the protection of his possession.

8. Shri S.C. Agrawal, learned counsel appearing for the respondent/plaintiff argued in support of the judgment and decree by submitting that the benefit of proviso to section 12(3) is not available to the tenant. The time for payment of rent cannot be extended without filing any application for condonation of delay. Once the defendant has failed to deposit the rent despite order passed by the trial Court under section 13(2) and no application was filed for condonation of delay then the decree under section 12(1)(a) has rightly been passed. Both the Courts below have concurrently granted the decree under section 12(1)(a) and the same is not liable to be interfered with in second appeal. In support of his contention he has placed reliance over the judgments of the Apex Court as well as this Court in the case of Imdad Ali vs. keshav Chand and others 2004(1) JLJ 397, R.C.Tamrakar and another vs. Nidi Lekha 2002 (2) JLJ 69, Virendra prajapati vs. K.B Agarwal 2017 (III) MPWWN 4, Smt.Pitta @ Tippa Devi and another vs. M/s Devi & Sons 2014 (II) MPACJ 293, Pushpa Samaiya (Ku.) and another vs. harish Makhija 2016 (III) MPWN 32 & Gous Mohd. vs. Mohd. Anwar and others AIR 2005 MP 1.

9. Shri Agrawal, learned counsel further submits that the first appellate Court has rightly reversed the finding recorded by the trial Court and rightly granted the decree under section 12(1)(c). The defendant was inducted as a tenant for residential purpose but he has illegally using the common passage for commercial purpose and causing nuisance to the plaintiff, hence no interference is called for in this appeal.

Appreciation and conclusion....

10. The plaintiff filed the suit on 18.08.2008. The defendant appeared before the Court on 15.10.2008. Vide Ex.D/13 he deposited the arrears of rent of Rs.25,200/-. Thereafter, he deposited Rs.700-700/- for the month of June and August but did not deposit the rent of the month July, September & October, 2009. Thereafter, he deposited Rs.700/- on 16.01.2009 and further deposited Rs.12,600/- on 10.03.2011 and thereafter he did not submit any document of deposit of rent. As per section 13(1) he is required to deposit the arrears of rent within 30 days from the date of first appearance then only he is entitled for protection of tenancy under section 13(5). In the present case, the trial Court has assessed the rent payable during the pendency of the suit under section 13(2) but the defendant has failed to pay the said rent and he has also not filed any application for condonation of delay in payment of rent. Both the Courts below have concurrently recorded the finding in respect of default of payment of rent and such concurrent findings are not liable to be interfered in second appeal as no substantial question of law is involved in this appeal. Even there is no perversity in the findings recorded by both the Courts below.

11. In the case of Ashok Kumar Mishra and another vs. Goverdhan Bhai (D) Thr. Lrs. and another reported in AIR 2017 SC 1819 the Apex Court has held that default of payment of rent after filing of suit cannot be condoned. Para- 13 of the aforesaid judgment is reproduced below:

13. We are of the view that on a plain reading, this provision protects a tenant from eviction if a tenant makes deposit/payment as required by sub-section 13(1) or 13(2) of the Act. In other words, if the tenant has complied with the provisions of sub-section 13(1) and 13(2) in the matter of making payment, he is protected from eviction. It must be remembered that provisions of Section 13 of the Act shield a tenant from eviction if the tenant regularly pay rent after the suit is filed.

Accordingly, it provides a locus poenitentiae to the tenant. Sub-section 13(5) of the Act reiterates the protection by stating that if the tenant makes payment post-suit in accordance with the provisions of sub- section 13(1) and 13(2) of the Act, he shall not be liable for eviction. This Section does not confer the power on the court to condone the defaults in payment of rent after the suit is filed. It is, therefore, not possible for us to accept this contention. In the circumstances, the impugned judgment of the High Court is set aside.

12. So far the decree under section 12(1)(c) is concerned, the plaintiff came up with the plea that the defendant was inducted as tenant for residential purpose but he is using the common passage for commercial purpose, thereby causing nuisance. When the plaintiff objected he abused him by filthy language for which he lodged a report vide Ex.P/4. He has filed the photographs in which the defendant is using the common passage as a shop. In para-32 of the judgment the first appellate Court has recorded a finding that there was no permission to use the common passage for commercial purpose which is causing obstruction and nuisance to the plaintiff.

13. The defendant has also denied the title of the plaintiff. Before the Rent Controlling Authority he has admitted the ownership of Preetpal and was sending rent by way of money order. Once he has admitted the relationship of landlord and tenant he is estopped from denying the title of the plaintiff by virtue of section 116 of the Evidence Act, hence the decree under section 12(1)(c) has also rightly been granted by the appellate Court.

14. Even otherwise scope of interference by High Court in second appeal filed under section 100 CPC with concurrent finding recorded by both the Courts below is very limited as held by Apex Court in following cases.

15. The apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as under:

5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

6. If the question of law termed as a substantial ques- tion stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR 1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

16. In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the apex court has held as under:

16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.

17. Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others : (2017) 9 SCC 586 has held as under:

"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.

18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."

18. In view of the above, this appeal does not involve any question of law much less substantial question of law. Accordingly, the appeal fails and is hereby dismissed.

No order as to costs
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