SUNIL VREMA Vs. BALKISHAN GARG

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, petitioners'/defendants' are questioning the legality, validity and propriety of the impugned order dated 22/11/2012 (Annexure P/1) passed by III Civil Judge, ClassII, Morena in civil suit No.11A/2012 by which their application under Order XXXIX Rule 7 read with section 151 of CPC (hereinafter referred to as 'the Code') has been rejected.

(2.) The respondent/plaintiff has instituted the suit for eviction and arrears of rent with respect to the suit shop. It is asserted that initially father of the defendants' was carrying on business in the name and style of Mungaram Ramswaroop and after his death, defendants'/petitioners' No.2 and 4 are carrying on business in the suit shop. The grounds of eviction are two fold, namely; arrears of rent as the rent is not being paid since 18/11/2011 and the suit shop was bona fide required for respondent/ plaintiff for his major son, Harischand Garg as there is no other alternate suitable accommodation available with him in the city of Morena. Written statement has been filed and denied the plaint allegations as well as the ground of eviction by contending that the plaintiff himself has stopped accepting the rent and the suit shop was not bona fide required. During pendency of the suit as a portion of suit shop was damaged due to water pouring from holes in the tin shed, therefore, the petitioners'/defendants' requested the plaintiff to change the tin shed but no heed was paid. Upon such failure, the defendants' have filed an application under Order XXXIX Rule 7 read with section 151 of 'the Code' before the trial Court seeking a relief that either the plaintiff be directed to change the tin shed or petitioners'/defendants' be permitted to change the tin shed by a new tin shed because the same is in dilapidated condition and there is consistent flow of water through holes over tin shed causing damage to the belongings of the petitioners' in the suit premises.

(3.) The trial Court by the impugned order has rejected the application on the ground that an application seeking such nature of the relief is not maintainable in view of the provisions of section 45 of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') and the defendants'/petitioners had been directed to approach the Rent Controlling Authority under the provisions of section 37 of the Act.