Prakash Shrivastava, J.@mdashHeard on the question of admission.
2. This appeal under Section 100 of the CPC is at the instance of the tenant seeking to challenge the concurrent decree of eviction passed by the two courts below. The trial Court by the judgment dated 15.10.2011 had decreed the suit for eviction filed by the respondents No. 1 and 2 and the first appellate court by the judgment dated 30.10.2012 by dismissing the appeal, has affirmed the judgment of the trial Court.
3. In brief, the respondents No. 1 and 2 had filed the suit for eviction pleading that the appellants were inducted as tenant in the suit premises by the previous owner and the respondents No. 1 and 2 by the registered sale deed dated 9.6.2005, had purchased the suit premises and given the notice to the appellants, and the appellants had agreed to pay the rent to the respondents No. 1 and 2. The rent was not paid by the appellants and the suit premises was required for the bona fide need of respondent himself, his wife, son and daughter and the appellants had encroached upon the second floor of the house and raised an illegal construction. Therefore, the suit for eviction was filed on the ground under Section 12(1)(a), 12(1)(e) and 12(1)(m) of the M.P. Accommodation Control Act (for short �The Act�).
4. The suit was opposed by the appellants raising the plea that the respondents No. 1 to 3 had purchased only 1/3rd portion of the house and the need is not bona fide and no default in the payment of rent was committed.
5. The trial Court by the judgment dated 15.10.2011 had decreed the suit on the ground of bona fide need as well as default in the payment of rent under Section 12(1)(a) and 12(1)(e) of the Act, but the plea relating to the illegal construction was not found proved therefore, the ground under Section 12(1)(m) was rejected. The first appellate court by the judgment dated 30.10.2012 has affirmed the judgment of the trial Court.
6. Learned counsel appearing for the appellants submits that no splitting of tenancy has been proved in the matter, no attornment has been proved and since the tenancy is indivisible, therefore, partial eviction in respect of one and half room is not the bona fide need.
7. I have heard the learned counsel for the parties and perused the record.
8. The two courts below have elaborately dealt with the evidence on record and have concurrently recorded a finding in respect of the arrears of rent and bona fide need of the respondents No. 1 and 2. The courts below have found that the shop in the disputed house does not exist in view of the road widening, which was done in the year 2004 and the respondents No. 1 to 2 vide sale deed (Ex.P/2), had purchased the premises comprising of one and half room and remaining half room has been purchased by the respondents No. 3 and 4. The respondents No. 1 and 2 had raised the plea before the trial Court that the appellants were in arrears of rent from 9.6.2005 to 8.9.2008. It has been found proved that the appellants had filed an application dated 10.1.2011 disputing the rent before the trial Court and the trial Court had fixed the interim rent of Rs. 100/- but the appellants had not deposited the said interim rent. In view of this, the defence of the appellants was struck off on 3.3.2011.
9. It has also been found that inspite of receipt of notice, the appellants had not paid the rent. They had also not paid the rent in one month after service of summons in the suit. They had also not deposited the amount in terms of Section 13(2) & (3) of the Act. Since a default was committed in compliance with the provisions of Section 13 of the Act, therefore, the defence was struck off in terms of the provisions of the Act. Hence, it is not open to the appellants at this stage to raise the new defence relating to the non- splitting of tenancy or non-attornment or indivisibility of tenancy.
10. The two courts below have elaborately dealt with the issue of bona fide need and have found that the respondents No. 1 and 2 are presently residing in the house of their father but their father''s house is not the alternate accommodation. The courts below have found that the family of the respondent No. 1 consists of his wife and two minor children and they want to live in the suit premises. The bona fide need of the respondents No. 1 and 2 for the suit premises has duly been proved and it has also been found that the respondents have no other alternate accommodation in the town concerned. Counsel for the respondent No. 1 has pointed out that the half room was in possession of another tenant Zaheer, against whom the suit for eviction was filed in which the eviction decree was passed and the Second Appeal No. 683/2011 has been dismissed as withdrawn by order dated 15.10.2014, therefore, the eviction decree has attained finality.
11. In view of the aforesaid, it is found that the issue which the appellants are raising, is concluded by the finding of fact recorded by the two courts below. The appeal does not involve any substantial question of law, which is accordingly dismissed in limine.
12. At this stage, counsel for the appellants has prayed for time to vacate the suit premises.
13. Considering the entire circumstances of the case and taking note of the use to which the suit premises has been put to, the appellants are granted time to vacate the suit premises up to 30.4.2015 on the following conditions :-
(1) The appellants will furnish an undertaking before the trial Court within 4 weeks from today stating that they will handover the peaceful vacant possession of the suit premises to the respondents on or before 30.4.2015.
(2) The appellants will comply with the money part of the decree within 6 weeks from today.
(3) The appellants will continue to deposit the rent of the suit premises on or before 7th of each month.
(4) The appellants will not create any third party right on the suit premises in the meanwhile.
14. The appeal is accordingly dismissed.
15. C.C. as per rules.
