AHMED ALI Vs. ZAHIDA BEGAM

JUDGEMENT

(1.) THIS appeal arises from the judgment and decree for eviction passed in favour of landlord by the Courts below in concurrent manner.

(2.) RELEVANT facts giving rise to the present appeal are that a suit was instituted by Mohammad Nazir Khan (predecessor of respondents) for eviction and arrears of rent in respect of the suit premises situated on first floor as described in paragraphs 1 and 2 of the plaint and shown in red colour in the plaint map. Defendant was inducted as a tenant in the suit premises by the plaintiff on rent @ Rs. 30/- p.m. Rent was paid up to 31-12-1980. Thereafter, since the respondent was in arrears of rent w.e.f. 1-1-1981, a notice of demand vide Ex-P/1 dated 9-10-1986 was issued by registered post. It was served upon the defendant on 13-10-1986. Despite this notice, defendant did neither pay whole of the arrears of rent nor tender it. Consequently, plaintiff instituted a suit for eviction on ground under section 12(1)(a) of M.P. Accommodation Control Act, 1961 and arrears of rent for a period of three years preceding institution of the suit. After institution of the suit, present respondents were substituted in place of original plaintiff on account of his death.

(3.) LEARNED trial Judge, after recording the evidence decreed the suit in favour of plaintiff vide judgment and decree dated 30-1-1992. Appeal preferred against it was also dismissed vide judgment and decree dated 24-7-1996. Aggrieved by it, appellant preferred Second Appeal No. 277/1996 which was partly allowed and the matter was remitted back to the lower appellate Court in the following manner : So far as the bona fide on the part of the appellant to not to deposit the rent is concerned, it is pleaded that Ahmed Ali appellant had purchased the property in an auction sale. He had deposited 1/4th of the bid money amounting to Rs. 10,000/- on 24th of December, 1980 and a further amount of Rs. 30,000/- in the Court on 9th of January, 1981 in an execution case. He submits that on account of a decision given by this Court in Writ Petition No. 1540/91 decided on 5th of July, 1995, the auction sale made in his favour was set at naught. This, according to him, would be another factor which should have been taken note of by the first appellate Court. There appears to be some justification in the argument raised by the learned counsel for the appellant. The matter is, accordingly, remanded to the first appellate Court who would re-decide the matter in the light of the facts indicated above. The question as to whether delay is to be condoned or not would of course be a matter which would be within the discretion of the first appellate Court but then this discretion is to be exercised judiciously.