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Niranjankumar Awasthi Vs. Ajay Vijaywargiya and Another - Court Judgment

LegalCrystal Citation
SubjectAccommodation
CourtMadhya Pradesh Indore High Court
Decided On
Case NumberFIRST APPEAL No.560 of 2009
Judge
ActsM.P. Accommodation Control Act, 1961 - Sections 12(1)(a)(e), 13(1)
AppellantNiranjankumar Awasthi
RespondentAjay Vijaywargiya and Another
Appellant AdvocateShri A.K.Chatterjee, Adv.
Respondent AdvocateShri M.L.Agrawal; Shri Ravi Shukla, Advs.
Excerpt:
.....present appeal has been preferred by the defendant/appellant.  defendant/appellant being a tenant in the suit accommodation belonging to kamal kishore shrivastava, became tenant of the plaintiffs by operation of law on account of purchase of the suit accommodation by the plaintiffs vide registered sale deed ex.p-1c. the question, therefore, which arise for consideration is whether the finding of the trial court that the plaintiff-respondent was the landlord of the defendant-appellant tenant can be challenged in this second appeal. both a and c appealed to the high court. it also allowed the appeal of c. a appealed to the supreme court against the order declaring c to be duly elected. on the objection as to the maintainability of the appeal because of non-challenge to the order of..........on the general principle of res judicata. 10. it is settled law that where only a part of the decree is appealed from, the rest of the decree may become final and operate as resjudicata:[mulla's civil procedure code, thirteenth edition, p. 102]. in badri narayan singh v. kamdeo prasad singh [1]. a, b and c contested an election to the legislative assembly. a was declared elected. c filed an election petition to set aside the election of a on the ground that a was guilty of corrupt practice and that both a and b held offices of profit under the state government. by this election petition he claimed that the election of a be declared void and that he be declared duly elected. the election tribunal set aside the election of a but did not declare c to have been duly elected, inter alia,.....
Judgment:

1. This appeal has been preferred by the tenant against the judgment and decree dated 01.04.2009 by the Court of X Additional District Judge, Indore in Civil Suit No.54-A/2007, directing thereby eviction on the ground under Section 12 (1) (a) and (e) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the Act).

2. Relevant facts in short are that plaintiff/respondents purchased the suit accommodation from one Kamal Kishore Shrivastava son of Chandravilas Shrivastava, vide registered sale deed dated 31.08.2006. Kamal Kishore Shrivastava has executed a power of attorney on 01.12.1995 in favour of one Om Prakash Vijaywargiya, son of Harikishan Vijaywargiya. Defendant obtained the suit accommodation on rent on 01.06.2004 @ 3,500/- per month as rent from Om Prakash Vijaywargiya, through a broker Bhavesh Patel. Defendant did not make payment of rent after June, 2004. Since the defendant was occupying the suit accommodation as tenant of Kamal Kishore Shrivastava, he became the tenant of plaintiffs on account of purchase of suit accommodation vide registered sale dated 31.08.2006. Plaintiffs vide notice dated 23.04.2007 demanded the rent, which was not paid despite service of demand notice. Plaintiffs required the suit premises for their own residence because they have no other vacant accommodation of their own in the city of Indore, hence, the suit.

3. Defendant/appellant vide his written statement denied the relationship of tenant with the plaintiffs. It has been stated in the written statement that he obtained the suit accommodation from Om Prakash Vijaywargiya, through a broker Bhavesh Patel. Thus, the defendant who is the tenant of Om Prakash Vijaywargiya had no privity of contract with Kamal Kishore Shrivastava. The sale deed executed in respect of the suit accommodation was not by Om Prakash Vijaywargiya, but by Kamal Kishore who had no right/title to execute the sale deed in favour of the plaintiffs. The averments contained in the plaint were also denied. Thus, a prayer for dismissal of the suit was made.

Learned trial Judge after recording the evidence granted a decree in favour of plaintiffs.

Aggrieved by the aforesaid, present appeal has been preferred by the defendant/appellant.

4. It is significant to note that the defendant while preferring the present appeal valued it merely at Rs.42,000/- being one year's rent. Valuation pertaining to arrears of rent, germane for the purpose of ground under Section 12 (1) (a) of the Act has not been made.

5. It has been contended by the learned counsel Shri A.K.Chatterjee, appearing for the appellant that there being no relationship of landlord and tenant between the plaintiffs and defendant, the decree for eviction could not have been legally granted. Attention of this Court has been drawn to the statement of defendant himself and Bhavesh Patel. On the basis of these two statements, it has been contended that the defendant is tenant of Om Prakash Vijaywargiya, who was owner of the suit accommodation as revealed in Ex.D-1.

6. On perusal it is found that Ex.D-1 is the demand bill addressed to Om Prakash Vijaywargiya. On perusal of this document, it is suffice to say that demand bill could have been raised against the person for the time being receiving the rent. Om Prakash Vijaywargiya was admittedly the power of attorney holder for Kamal Kishore Shrivastava. Thus, merely on the basis of Ex.D-1, it cannot be said that Om Prakash Vijaywargiya was the owner of the suit accommodation and that Kamal Kishore Shrivastava had no right or power to execute the registered sale deed in favour of the plaintiffs. As regards statement of Bhavesh Patel, (PW-3), it may be seen that he has merely stated that the suit accommodation was given to the defendant on rent through Om Prakash Vijaywargiya. He has nowhere stated that Om Prakash was disclosed as owner/landlord of the suit accommodation. Admittedly, Om Prakash Vijaywargiya has not appeared in the witness box. On the other hand, Ex.P-4C is on record which reveals that Kamal Kishore Shrivastava had appointed Om Prakash Vijaywargiya as his power of attorney in respect of the suit accommodation. This apart, Ex.P-3C is also on record which reveals that the suit accommodation was allotted to Kamal Kishore Shrivastava by Indore Development Authority which was further sold by him to the plaintiffs vide registered sale deed Ex.P-1C. Pursuant to the sale deed, mutation has also been made in favour of the plaintiffs in the record of Indore Development Authority, as revealed in Ex.P-2C.

7. Thus, it is well established that the defendant/appellant was tenant in the suit accommodation, which has been duly transferred to the plaintiffs by Kamal Kishore Shrivastava. Defendant/appellant being a tenant in the suit accommodation belonging to Kamal Kishore Shrivastava, became tenant of the plaintiffs by operation of law on account of purchase of the suit accommodation by the plaintiffs vide registered sale deed Ex.P-1C. Accordingly, the finding of the learned trial Judge about relationship of landlord and tenant between the plaintiffs and the defendant is hereby confirmed.

8. Shri A.K.Chatterjee, learned counsel appearing for the appellant has placed reliance on the Division Bench judgment of this Court in the case of N.K.Kame v. Biharilal 1968 JLJ 337 and Single Bench judgment in the case of Madanlal v. Gajadhar 1984 MPWN 572 to contend that in the absence of relationship of landlord and tenant between the plaintiffs and the defendant, no decree for eviction on the ground 12 (1) (a) can be legally passed.

In the instance case, since the defendant/appellant is found tenant of plaintiffs in the preceding paragraphs, decisions in the case of N.K.Kame (Supra) and Madanlal (Supra) do not provide any benefit to the appellant.

9. It may be further seen that plaintiffs while instituting the suit for eviction and arrears of rent made valuation at Rs.1,35,800/- for arrears of rent and notice expenses and Rs.42,000/- for eviction on the basis of rent for one year. Contrary to it, defendant/appellant put valuation for the purpose of this appeal at Rs.42,000/- only, on the basis of one year rent. Thus, he has challenged merely the decree for ejectment and not the decree for arrears of rent, which has been granted against him. Thus, the decree for arrears of rent has become final which operates as resjudicata and decree for eviction on the ground under Section 12 (1) (a) cannot be legally challenged.

I may successfully refer to the decision of this Court in the case of Deepchand v. Narendra Prasad Mittal 1970 JLJ 839, wherein it has been observed as under:- I may successfully refer to the decision of this Court in the case of Deepchand v. Narendra Prasad Mittal 1970 JLJ 839, wherein it has been observed as under:-

“7. It is not disputed that the decree for arrears of rent not having been appealed against had become final. It is also not disputed that the said decree was based on the finding that the plaintiff respondent was the landlord of the appellant-defendant tenant.

8. The question, therefore, which arise for consideration is whether the finding of the trial Court that the plaintiff-respondent was the landlord of the defendant-appellant tenant can be challenged in this second appeal.

9. In my opinion, the said finding cannot be challenged as it had become final and conclusive between the parties on the general principle of res judicata.

10. It is settled law that where only a part of the decree is appealed from, the rest of the decree may become final and operate as resjudicata:[Mulla's Civil Procedure Code, Thirteenth Edition, p. 102]. In Badri Narayan Singh v. Kamdeo Prasad Singh [1]. A, B and C contested an election to the Legislative Assembly. A was declared elected. C filed an election petition to set aside the election of A on the ground that A was guilty of corrupt practice and that both A and B held offices of profit under the State Government. By this election petition he claimed that the election of A be declared void and that he be declared duly elected. The Election Tribunal set aside the election of A but did not declare C to have been duly elected, inter alia, on the finding that A was guilty of corrupt practice. It was also found that both A and B did not hold offices of profit as alleged. Both A and C appealed to the High Court. The High Court held that both A and B held offices of profit; but that A was not guilty of corrupt practice. In the result, it dismissed the appeal of A setting aside his election, though on a ground different from that of the Election Tribunal. It also allowed the appeal of C. A appealed to the Supreme Court against the order declaring C to be duly elected. No appeal was filed against the setting aside of his own election on the ground that he and B held offices of profit. On the objection as to the maintainability of the appeal because of non-challenge to the order of the High Court in A's appeal, the Supreme Court said:

“The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals. It is true that in his appeal No.8, the respondent No.1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No.2 being holders of an office of profit. He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No.2 was also in the field and had secured a larger number of votes. He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No.7. This contention was considered by the High Court in Appeal No.7 in that context and it was therefore, that even though the High Court did not agree with the Election Tribunal about the appellant's committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profit. The finding about his holding an office or profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellant's election in Appeal No.7. It came to another decision in Appeal No.8 with respect to the justification of the claim of respondent No.1 to be declared as a duly elected candidate, a decision, which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No.2, as Ghatwal, was not a properly nominated candidate. We are, therefore, of pinion that so long as the order in the appellant's appeal No.7 confirming the order setting aside the election on the ground that he was a holder of an office of profit under the Bihar Government and therefore, could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal which is founded on the contention that finding is incorrect”.

Again, in Sheodan Sigh v. Daryao Kunwar [1] it said;

“Our conclusion on the question of res judicata raised in the present appeals is this Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so the decision of the appeal Court will be res judicata whatever may be the reason for the dismissal”.

11. In view of the aforesaid decisions, the question that the plaintiff-respondent was not the landlord of the appellant-defendant tenant is not open to challenge in this second appeal for the reason that as the judgment and decree regarding arrears of rent had not been challenged by the defendant-appellant, it had become final and conclusive between the parties and as that decree proceeded on the footing that the plaintiff respondent was the landlord of the defendant-tenant, the issue that the plaintiff-respondent was the landlord of the appellantdefendant tenant had also become final and conclusive between the parties and could not be allowed to be agitated even when challenging the judgment and decree so far as his eviction was concerned. He could no doubt challenge the decree for eviction but not on the ground that the plaintiff-respondent was not his landlord because if this were permitted, it would result in two inconsistent decrees in the same suit-the plaintiff-respondent being the landlord of the defendant-appellant for the purpose of recovering arrears of rent but not his landlord for the purpose of filing a suit for his eviction.”

 C to be duly elected. No appeal was filed against the setting aside of his own election on the ground that he and B held offices of profit. On the objection as to the maintainability of the appeal because of non-challenge to the order of the High Court in A's appeal, the Supreme Court said:

“The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals. It is true that in his appeal No.8, the respondent No.1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No.2 being holders of an office of profit. He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No.2 was also in the field and had secured a larger number of votes. He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No.7. This contention was considered by the High Court in Appeal No.7 in that context and it was therefore, that even though the High Court did not agree with the Election Tribunal about the appellant's committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profit. The finding about his holding an office or profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellant's election in Appeal No.7. It came to another decision in Appeal No.8 with respect to the justification of the claim of respondent No.1 to be declared as a duly elected candidate, a decision, which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No.2, as Ghatwal, was not a properly nominated candidate. We are, therefore, of pinion that so long as the order in the appellant's appeal No.7 confirming the order setting aside the election on the ground that he was a holder of an office of profit under the Bihar Government and therefore, could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal which is founded on the contention that finding is incorrect”.

Again, in Sheodan Sigh v. Daryao Kunwar [1] it said;

“Our conclusion on the question of res judicata raised in the present appeals is this Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so the decision of the appeal Court will be res judicata whatever may be the reason for the dismissal”.

11. In view of the aforesaid decisions, the question that the plaintiff-respondent was not the landlord of the appellant-defendant tenant is not open to challenge in this second appeal for the reason that as the judgment and decree regarding arrears of rent had not been challenged by the defendant-appellant, it had become final and conclusive between the parties and as that decree proceeded on the footing that the plaintiff respondent was the landlord of the defendant-tenant, the issue that the plaintiff-respondent was the landlord of the appellantdefendant tenant had also become final and conclusive between the parties and could not be allowed to be agitated even when challenging the judgment and decree so far as his eviction was concerned. He could no doubt challenge the decree for eviction but not on the ground that the plaintiff-respondent was not his landlord because if this were permitted, it would result in two inconsistent decrees in the same suit-the plaintiff-respondent being the landlord of the defendant-appellant for the purpose of recovering arrears of rent but not his landlord for the purpose of filing a suit for his eviction.”

10. Apart from the aforesaid, demand notice was admittedly issued vide Ex.P-7 by registered post which was served upon the defendant as revealed in Ex.P-10. Defendant having not paid the arrears of rent and having not made compliance of Section 13 (1) of the Act is definitely liable to be evicted on the ground under Section 12 (1)(a) of the Act. In this appeal also, defendant has not deposited rent as per the mandate of Section 13 (1) of the Act. Thus, no fault is found in the decree on the ground under Section 12 (1) (a).

11. Accordingly, the impugned judgment and decree holding the defendant to be tenant of the plaintiffs is hereby confirmed and the decree for eviction on the ground under Section 12 (1) (a) is equally confirmed. As regards eviction on the ground under Section 12 (1) (e), learned counsel for the appellant has been unable to point out any material on record to infer that the plaintiffs have any other vacant accommodation of their own in the city of Indore. This being so, their need is held bonafide and decree on this ground is also found unassailable.

In the result, there being no force in the appeal, the same is hereby dismissed with costs. Lawyer's fee to the tune of Rs.5000/- if precertified.

C.C.as per rules.


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