N.K. Mody, J.@mdashBeing aggrieved by the judgment dated 28-3-2007 passed by XVI ADJ (Fast Track), Indore in Civil Appeal No. 4/2006
whereby judgment dated 14-5-2004 passed by VIII Civil Judge, Class II, Indore in Civil Suit No. 94-A/2004 whereby the suit filed by the
respondent for eviction u/s 12(1)(a) of the M.P. Accommodation Control Act (which shall be referred hereinafter as ""Act"") was decreed in part so
far as it relates to arrears of rent and was dismissed so far as it relates to eviction was modified by passing the decree of eviction, the present
appeal has been filed. The appeal was admitted by this Court vide order dated 28-7-2008 on the following substantial questions of law:--
(1) ""Whether Lower Appellate Court was justified in reversing the judgment/decree passed by the Trial Court which had dismissed the plaintiff''s
suit for eviction in relation to the suit house on the ground covered u/s 12(1)(a) of the M.P. Accommodation Control Act ?
(2) ""Whether Lower Appellate Court was justified in holding that ground u/s 12(1)(a) ibid is made out on the facts pleaded and found proved.
Short facts of the case are that the respondent filed a suit for eviction of the suit accommodation against the appellant alleging that respondent has
letted out the suit accommodation to the appellant on rent @ Rs. 200/- per month. It was alleged that it was agreed between the parties that rent
shall be enhanced after completion of one year by 10%. It was further alleged that appellant is in arrears of rent w.e.f. 1-4-1997. It was alleged
that notice was issued to the appellant for demand of arrears of rent on 12-4-1999 but no rent was tendered by the appellant. It was alleged that
respondent requires the suit accommodation bonafidely. The suit was contested by the appellant alleging that appellant was tenant in the suit
accommodation @ Rs. 40/- per month. It was denied that appellant is in arrears of rent w.e.f. 1-4-1997. It was alleged that the appellant has
never received any notice from the respondent. It was denied that appellant is in arrears of rent. It was alleged that appellant has already paid the
rent upto December, 2000 and rent thereafter has not been accepted by the respondent. In the written statement it was also alleged that the
respondent is the co-owner of the suit property. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned
Trial Court decreed the suit so far as arrears of rent is concerned and dismissed the suit so far as it relates eviction against which the appeal was
filed the respondent which was allowed and the decree of eviction was also passed against the appellant against which present appeal has been
filed.
2. Learned Counsel for the appellant argued at length and submits that impugned judgment passed by learned Appellate Court is illegal, incorrect
and deserves to be set aside. It is submitted that respondent himself has not stated that notice was duly served on the appellant. It is submitted that
in the facts and circumstances of the case no decree of eviction could have been passed against the appellant. Learned Counsel submits that since
Surendra Kumar Modi, who happens to be the brother of respondent is one of the co-owner of the suit accommodation claiming rights over the
suit property, therefore, learned Appellate Court committed error in passing the decree of arrears of rent against the appellant. It is submitted that
appeal filed by the appellant be allowed and impugned judgment passed by learned Appellate Court be set aside.
3. Mr. T.K. Modi, learned Counsel for the respondent argued at length and submits that no illegality has been committed by learned Appellate
Court in modifying the decree passed by learned Trial Court. It is submitted that appeal filed by the appellant be dismissed.
4. From perusal of record, it appears that in the suit itself respondent has stated that notice was issued by the respondent whereby arrears of rent
were demanded but notice was not served on the appellant. From the pleadings itself, it is evident that case was not made out by the respondent
for eviction as the suit was filed for eviction u/s 12(1)(a) of the Act and respondent was required to plead and prove that the tenant was in arrears
of rent and notice of demand was issued which was duly served and in spite of service of notice rent was not paid. Since respondent has admitted
that notice issued to the appellant was not served, therefore, there was no reason for dismissing he suit filed by the respondent u/s 12(1)(a) of the
Act. So far as decree as it relates to arrears of rent is concerned, since the appellant himself has admitted that appellant has paid rent to the
respondent, therefore, the learned Trial Court is rightly decreed the suit against the appellant. So far as contention of the appellant that appellant is
not the tenant of respondent is concerned as the brother of respondent is also claiming the rent and since against judgment passed by learned Trial
Court no appeal was filed by the appellant, therefore, at this stage appellant cannot challenge the validity of decree passed by learned Trial Court
on that ground.
5. In the facts and circumstances of the case, appeal filed by the appellant is allowed. Substantial questions of law are answered in favour of the
appellant the judgment and decree passed by learned Appellate Court is set aside and the judgment and decree passed by learned Trial Court is
restored. With the aforesaid observations, appeal stands disposed of. No order as to costs. C.c. as per rules.