Smt. Santosh And Ors. vs Mohd. Sharif And Ors.

on 3 January, 2008

Madhya Pradesh High Court Madhya Pradesh High Court Smt. Santosh And Ors. vs Mohd. Sharif And Ors. on 3 January, 2008 Author: S Seth Bench: S Seth JUDGMENT S.K. Seth, J. 1. Appellants are the legal representatives of the original tenant. They are in appeal against the concurrent judgment and decree of eviction passed under Section 12(1)(a) of the M. P. Accommodation Control Act, 1961( hereinafter referred to as the Act for short) by the Courts below. 2. The appeal was admitted for final hearing and the following substantial questions of law were formulated: 1. Whether the first appellate court was justified in confirming the decree passed by the trial court under Section 12(1)(a) of the M.P. Accommodation Control Act, and granted decree for eviction? 2. Whether on facts pleaded and found proved, a decree under Section 12(1)(a) ibid could be passed against the defendant(tenant) and whether he was entitled to get the benefit of Section 12(3) of the Act? 3. Plaintiff sought eviction of the tenant from the residential suit accommodation situated in Indore. Plaintiff sought eviction on various grounds including the ground covered by Section 12(1)(a) of the Act. Claim was resisted by the appellants. Based upon pleadings, trial Court framed issues and allowed the parties to adduce evidence. Learned trial Judge on appreciation of evidence, decreed the suit and ordered eviction of the appellants herein. Matter was carried in first appeal. Learned first appellate Court by the impugned judgment and decree, dismissed the appeal and maintained the judgment and decree of the trial Court. Hence this second appeal as stated above. 4. Shri S.C. Bagadia, learned senior counsel appearing for the appellants contended that in order to pass a decree under Section 12(1)(a)of the Act, service of demand notice for payment of arrears of rent is sine-qua-non. In this connection, he referred to pleadings contained plaint as well in the written statement. He also referred to the evidence of the plaintiff, Mohd. Sharif(P.W.1). He submitted that Courts below erred in coming to the conclusion that in absence of specific denial, there was tacit admission on the part of appellants that they were served with the demand notice. According him,Courts below proceeded against appellants on the ground that there was non traverse of pleadings made by the landlord in the plaint. According to him, the so called admission in the written statement has to be seen and read as whole and not in a truncated manner. He further contended that even assuming without conceding, that there was no specific denial on the part of the appellants, still as per Order VII Rule 5 of the C.P.C., Courts below, should have had asked the landlord to prove the fact of service of notice, instead of ordering eviction of the appellants under Section 12(1)(a) of the Act. Thus, according to him in absence of any positive evidence with regard to service of demand notice, Courts below committed manifest error in ordering eviction of the appellannt from the suit premises. Insupport of his contention, Shri Bagadia placed strong reliance on the decision of the Supreme Court in the case of Patna Regional Development Authority and Ors. v. Rashtriya Pariyojna Nirman Nigam and Ors. , especially the observations made at page 531. He has also contended that appellants are entitled to protection under Section 12(3) of the Act. 5. On the other hand, Shri A.S. Garg, learned senior counsel appearing for the legal representatives of the landlord, while supporting the impugned judgment and decree submitted, that Courts below have recorded pure findings fact based upon proper appreciation of evidence and as such they are not open to interference by this Court in the second appeal. He further submitted that in the plaint there is specific allegation about service of notice demanding payment of arrears of rent, therefore, in absence of specific denial, Courts below were
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Smt. Santosh And Ors. vs Mohd. Sharif And Ors. on 3 January, 2008

justified in holding that there was an admission regarding service and non payment of arrears of rent as per demand notice to the respondents in view of provisions contained in Order VIII Rule 3 of the C.P.C. He further contended that in absence of any dispute with regard to rate or arrears of rent, appellants were duty bound to comply with both limbs of Section 13 of the Act, i.e. deposit or tender legally recoverable arrears of rent within one month of the service of writ of summons and continue to deposit or pay month by month by 15th of each succeeding month, a sum equivalent to rent, till the decision of suit or appeal. Since they failed to do so, now it is not open for them to contend that the decree for eviction passed against them under Section 12(1)(a) of the Act is illegal or unsustainable in law. Shri Garg in support of his contentions has placed reliance on the decision of the Supreme Court in the case of Jamnalal and Ors. v. Radheshyam reported in 2000(2) JLJ 1(SC) and Sayeda Akhtar v. Abdul Ahad ; and Imdad Ali v. Keshav Chand reported in 2004(1) JLJ 397(SC). 6. There is no quarrel with the proposition of law that an admission in pleadings is quite different than an admission in the testimony of a witness. As observed by the Privy Council in M.M. Essbhoy v. M. Haridas AIR 1915 PC 2, it may be permissible for a court/tribunal to accept a part and reject of rest any of any witness's testimony, but so far as admission in pleading is concerned, it can not be so dissected. It may be accepted as a whole or not at all. Now keeping this principle in mind, we have to evaluate picture emerging from facts, which are no longer in dispute, It is clear that the plaintiff is the owner/landlord of the suit accommodation. There was an earlier litigation between the plaintiff and Seth Gopilal, previous occupier of the suit accommodation. That suit ended in a compromise decree and Seth Gopilal recognized plaintiff as the landlord of the suit accommodation. After the death of Seth Gopilal, his legal representatives, by registered sale deed dated 9.9.1981 sold away the suit accommodation to tenant in the present proceeding, including rights and liabilities of a tenant and that is how tenant stepped into the shoes of the previous occupier of the suit premises. It is also clear from the record, that appellants never challenged the rate of rent nor the legally recoverable arrears thereof. Despite this, appellants took a calculated risk by denying the relationship of landlord and tenant between the parties but neither established their case nor deposited the legally recoverable arrears of rent within the time permitted under the Law. It is also no in dispute that appellants did not file any application seeking condo nation of default or delay with regard to payment/deposit of legally recoverable arrears of rent. For the first time appellants have made this kind of application (I.A. 11894/06) before this Court during the pendecy of this appeal. 7. The Civil Suit was instituted in the year 1987 with the specific allegations that the appellants were in arrears of rent for which demand notice were served upon the original defendants- Ramesh Chandra and Shyam Bihari (Def. No. 2), both father and son respectively. Original tenant and defendant No. 1 Ramesh Chandra died during the suit, therefore, his other legal representatives were brought on record. A joint written statement of his widow and defendant No. 2 was filed without any specific denial of arrears of rent or service of notice demanding payment thereof. It is pertinent to point out that that was no dispute with regard to rate of rent. That being the situation, appellants were bound to tender or deposit legally recoverable arrears of rent in compliance of Section 13 of the Act, or in case of refusal by the respondents, then appellants could have resorted to Section 25 of the Act to avoid eviction under Section 12(1)a). The trial Court on 16.2.2004 ordered appellants to deposit arrears of rent. Although the said order was duly complied with without delay, however, learned senior counsel appearing for appellants was fair enough to accept that there was a default on the part of the appellants to deposit the monthly rent of July 2004 in time. Thus, it is clear that appellants, even after availing the benefit of the order dated 16.2.2004, again committed default, therefore, in view of the law laid down in Imdad Ali supra, the I.A. No. 11894/06 is of no avail, consequently it stands rejected and closed. The inevitable result, therefore, is to confirm the concurrent decree for eviction passed against the appellants. In the opinion of this Court the reliance placed on the decision of the Supreme Court in Patna Regional Development Authority supra is clearly distinguishable on facts. That was a case where contract was not awarded to the first respondent, though its bid was the lowest because of Government's order dated 26.9.1991 black listing first respondent. The black listing order as well as non award of contract both was challenged in two separate writ petitions. Writ Petition challenging black listing was dismissed on the ground of delay,
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Smt. Santosh And Ors. vs Mohd. Sharif And Ors. on 3 January, 2008

however, the other writ petition was allowed by the learned single judge. In Letters Patent Appeals, the decision of the single judge dismissing the writ petition challenging order of black listing was set aside on the ground of breach of principles of natural justice and matter was sent back to reexamine the question of award of tender. Against the decision in L.P. As, matter went to the Supreme Court and it was in this context, the following observations, on which reliance is placed by Shri Bagadia, were made: 6. In our view the impugned decision of the Division Bench of the Patna High Court cannot be sustained. The decision of 26-6-1991 taken by the Water Resources Department to blacklist the first respondent for five years was communicated by a letter +of the same date to the first respondent. The High Court has, however, held that the letter of 26-9-1991 addressed by the Water Resources Department, Government of Bihar to the first respondent was not served on the first respondent. This conclusion is arrived at by the High Court only on the ground that the allegation of non-service of the letter, made by the first respondent in their pleading is not denied by the appellants in their pleading. But as the High Court's judgment itself records, the appellants had, in fact, stated in their pleading that the letter of 26-9-1991 was communicated to the first respondent. The High Court, however, has proceeded on the basis that there was non-traverse of the statement made by the first respondent that the letter of 26-9-1991 was not received by the first respondent. The appellants had clearly pleaded that the order of 26-9-1991 was communicated to the first respondent. This cannot be construed as non-traverse.... 8. On the other hand, in the case on hand, there was a clear averment in the plaint by the plaintiff of non-payment of any rent by the appellants since September 1, 1981 despite the decree for recovery of rent having been passed against their predecessor occupier. There was no specific denial of this fact. Even otherwise, the tenant did not plead payment of any rent or its deposit before any authority. In absence of specific denial, this fact would be deemed to be admitted on the ground of non-traverse by the tenant. learned Counsel for the tenant strenuously urged before us that the appellants-tenant is entitled to the protection of Section 12(3) of the Act and that the appellants had in fact deposited arrears of rent within the meaning of Section 13(1) of the Act. We cannot permit this plea to be raised at this stage. The only plea taken by the appellants-tenant being the denial of relationship of landlord and tenant between the parties and having failed to establish same on the uncontroversial facts, eviction from the premises is unavoidable. So far as proviso to Order VIII Rule 5(1) is concerned, it merely states that the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. A wrong exercise of discretion would not give rise to substantial question of law to interfere with findings of fact. Even otherwise, looking to the nature of the pleadings we are of the view that the Courts below were not wrong in refusing to exercise discretion in favour of the appellants. 9. In view of the foregoing discussion, we do not find any merit and substance in this appeal. In the result appeal fails. Accordingly it is hereby dismissed, however, without any orders as to costs.

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