SECOND APPEAL No. 176 of 2011 · Madhya Pradesh High Court

filed by the plaintiff against the judgment & decree dated

19.11.2010, passed by 5th Additional District Judge, Ujjain in Civil Regular Appeal No.17-A/10, whereby the learned lower appellate Court affirmed the judgment & decree granted by the trial Court, by which the suit of the plaintiff-respondent was decreed under Section 12(1)(d) of the M.P. Accommodation Control Act, 1961. It is submitted by the learned counsel for the appellant that he is running his medicine business in the name and style 'Santosh Pharma' at suit shop and the learned Courts below have committed an error in holding that the suit shop was found closed for more than six months prior to the date of filing of the suit. In support of the said contention he drew my attention to paragraph 6 of the statement of DW2 Ramesh Kumar and submitted that the said finding is contrary to evidence on record. On the other hand, learned counsel for the respondents has submitted that defendant Manoj (DW1) in paragraphs 19 & 20 of his cross examination has admitted that IncomeTax Returns (D/14 to P/19) were filed in the name of M/s Santosh Pharma, Proprietorship firm.

This witness in paragraph 17 of his cross examination has admitted that his another firm M/s Santosh Pharma is registered under the Sales Tax & Income Tax and since 2000 he is running the said business and in the year 2007-08, 2008-09 he has submitted returns. DW1 Manoj in paragraph 5 of his cross examination has deposed that he was 2 running the shop in the name of 'Balraj Cut piece Centre'. Earlier he had taken licence under the Shop & Establishment Act and the same has not been renewed by him. PW3 Narain in his statement has deposed that the shop in question was closed from the last 4 years. DW2 Ramesh in his statement has deposed that the shop in question was opened for a period of 4 hours from 12 noon. This witness in his cross examination has deposed that he is not running his business over the premises in question. The statements of DW1 & DW2 have been considered by the lower appellate Court in paragraph 13 to 18 of the impugned judgment and on the basis of admission made by them the learned lower appellate Court has held that the premises in question was closed for more than six months prior to the date of filing of suit and the appellant-defendant is not doing any business over the suit premises and held that the trial Court has not committed any legal error in granting decree under Section 12(1)(d) of the M.P. Accommodation Control Act, 1961.

Once it is found that the landlady has successfully proved that the accommodation in question has been lying vacant for a period of six months prior to the institution of the suit, it was for the appellant to prove that there was reasonable cause why the accommodation was lying closed. In the written statement the appellant did not take any plea in this regard and simply denied the allegation of the plaintiff. In the absence of any pleading that there was a reasonable cause, the Court below rightly held that he closed shop and did not use a non-residential accommodation continuously for six months preceding the suit for eviction. The question as to whether he shop was not used for a period of six months prior to the institution of suit is a question of fact. Both the Courts below have given a finding against the 3 appellant in this behalf, no interference in second appeal can be made. On perusal of the material available on record and in view of the admission made by DW1 & DW2 in their cross examination this Court is of the view that the Courts below have not committed any legal error in dismissing the appeal and affirming the judgment and decree of the trial Court. No substantial question of law arises in this appeal. The appeal has no merit and is, accordingly, dismissed in limine. (P.K. Jaiswal, J.) rcs*