Central Cycle Store Th: Proprietor Vipin Garg vs Smt. Ratan Jain (Deleted) Subhash Jain

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
SECOND APPEAL No. 466 of 2012
CNR No.: MPHC030212052012
CENTRAL CYCLE STORE TH: PROPRIETOR VIPIN GARG
Versus
SMT. RATAN JAIN (DELETED) SUBHASH JAIN
Appearance:
Mr. Yogesh Chaturvedi - Advocate for the appellant.
Mr. Sunil Kumar Jain – Advocate for the respondent.
ORDER
Reserved on : 28.10.2026
Delivered on : 03.11.2026
JUDGMENT
The appellant has filed this appeal under Section 100 of the Code of Civil
Procedure, challenging the judgment and decree dated 01.08.2012 passed by the 14th
Additional District Judge, Gwalior, in Civil Appeal No.11-A of 2012, whereby the
appellate Court reversed the judgment and decree dated 30.08.2011 passed by the
10th Civil Judge, Class-I, Gwalior, in Civil Suit No.78-A of 2008 and decreed the
suit for eviction filed by the respondent against the appellant.
2. For the sake of convenience, the appellant is referred to as the defendant, while
the respondent is referred to as the plaintiff in this judgment.
3. The plaintiff filed a suit for eviction against the defendant, inter-alia , on the
ground that he is the owner of an accommodation situated at Sarafa Bazar, Bairagpur,
Danaoli Oli, Lashkar, Gwalior. It was averred that the defendant was a tenant in two
rooms on the ground floor at a monthly rent of Rs.150/- since 1982 for non-
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residential purposes. It was further averred that the defendant had not paid rent since
July’ 2002. In paragraph 3, 4 & 6 of the plaint, the plaintiff averred that the
accommodation was very old and in a dilapidated condition. It was further averred
that the accommodation was not fit for human habitation. In paragraph 7 of the
plaint, the plaintiff pleaded his bona fide need for the suit accommodation.
4. The defendant filed his written statement, denying the averments made in the
plaint. He admitted his tenancy with the plaintiff but denied the default in payment of
rent, the landlord's bona fide need, and the allegation that the suit accommodation
was in a dilapidated condition.
5. The learned trial Court framed issues regarding the grounds for eviction under
Section 12(1)(a), (f) & (g) of the M.P. Accommodation Control Act, 1961. After
recording the oral and documentary evidence adduced by both parties, the trial Court
dismissed the suit on all the grounds vide judgment and decree dated 16.10.2008.
Aggrieved by the judgment and decree, the plaintiff preferred an appeal. The learned
first appellate Court, vide judgment dated 28.03.2009 passed in Regular Civil Appeal
No.8-A of 2009, allowed the appeal and, while setting aside the judgment and decree
passed by the trial Court, remanded the matter to the trial Court for fresh
adjudication. The first appellate Court was of the view that the trial Court had
wrongly framed an issue under Section 12(1)(g) of the Act, whereas the averments
made in the plaint gave rise to an issue under Section 12(1)(h) of the Act. The
appellate Court, therefore, directed the deletion of Issues Nos. 1 ( अ ( ब स relating
) ) & ( )
to the ground under Section 12(1)(g) of the Act and framed the following four issues
for adjudication by the learned trial Court.
(1)
क  व दन
क  व गस स न क
व सदवक आवशकत  प नदनरण क  द ए ह  ?
(2) क  प नदनरण व गस स न क  ख 
कर य दबन  नह
कर य ज  सकत ।
(3) क  पस दवत दनर ण स  स न क
ससदत र% अर&  पररवत न नह
ह ग य  अर& 
,
पररवत न स वजदनक दहत र% ह ग
(4) ऐस  प नदनरण क  द य अन रनक य जन त यर क
गय
ह  तथ  आवशक दनद+

भ&स र
क  प स उप ब ह ।
6. On remand, the learned trial Court recorded additional evidence adduced by
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3
both parties and passed the judgment and decree dated 30.08.2011, whereby the suit
was again dismissed. The learned trial Court did not find the grounds under Section
12(1)(a), (f) & (h) of the Act established. The plaintiff again preferred first appeal,
challenging the judgment and decree passed by the trial Court. This time, the learned
first appellate Court partly reversed the judgment and decree passed by the trial
Court, decreed the suit filed by the plaintiff and directed the eviction of the defendant
under Section 12(1)(g) of the Act.
7. This Court, vide order dated 21.09.2023, admitted this appeal on the following
substantial questions of law:
"1. Whether the lower appellate Court justified in granting the decree
under Section 12(1)(g) of the M.P. Accommodation Control Act, 1961 in
view of the judgment dated 28.9.2012 passed by Seventh Additional
District Judge, Gwalior in Appeal No.8-A/2009 and while remanding the
matter deleted the ground of Section 12 (1) (g) of the M.P. Accommodation
Control Act against which no appeal was filed by the plaintiff/respondent?
2. Whether the judgment and decree passed by Seventh Additional District
Judge, Gwalior in Civil No.8-A/2009 dated 28/3/2009 is having an effect
of principal of res-judicata on plaintiff/respondent by which the ground of
Section 12(1)(g) of the M.P. Accommodation Control was deleted?"
8. The learned counsel for the defendant submitted that, vide judgment dated
28.03.2009, the appellate Court had already recorded a finding that Section 12(1)(g)
of the Act was not attracted and that the issue arising for consideration was under
Section 12(1)(h) of the Act. The appellate Court had accordingly framed the issues
and remanded the matter to the trial Court for fresh adjudication. It was contended
that the learned first appellate Court, while passing the impugned judgment and
decree, acted beyond its jurisdiction by holding that the ground under Section 12(1)
(g) is made out, and Section 12(1)(h), of the Act was not attracted. According to the
learned counsel, the first appellate Court was bound by the earlier remand order dated
28.03.2009 passed in the regular first appeal.
9. The learned counsel for the defendant further submitted that there is a material
difference between the grounds for eviction under Section 12(1)(g) and (h) of the
Act. Clause (g) provides for eviction of a tenant on the ground that the
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SHARMA
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accommodation has become unsafe or unfit for human habitation and requires repairs
that cannot be carried out without the accommodation being vacated. On the other
hand, under clause (h), eviction may be directed when the accommodation is bona
fide required by the landlord for rebuilding or making substantial additions or
alterations that cannot be carried out without the accommodation being vacated. He
further submitted that, where eviction is sought under Section 12(1)(h) of the Act, the
requirements of Section 12(7) must be satisfied; otherwise, eviction cannot be
directed. The learned counsel, therefore, submitted that the first appellate Court acted
illegally and beyond its jurisdiction by decreeing the suit under Section 12(1)(g) of
the Act, contrary to the judgment already passed by a Court of coordinate jurisdiction
in previous round.
10. On the other hand, the learned counsel appearing for the plaintiff supported the
impugned judgment and decree. He referred to the averments made in paragraphs 3,
4 & 6 of the plaint and submitted that the averments were, in fact, made with
reference to the ground under Section 12(1)(g) of the Act and the appellate Court
erred in holding that the same attracts clause (h) of Section 12(1).
11. The learned counsel submitted that the appellate Court had recorded its finding
after appreciating the evidence adduced by the parties and had found that the suit
accommodation was unsafe and unfit for human habitation. The learned counsel
further submitted that this Court, while exercising its powers under Section 100 of
the Code of Civil Procedure, can also examine the validity of the judgment dated
28.03.2009. According to him, the finding recorded by the appellate Court in the said
judgment, holding that the issue under Section 12(1)(h) of the Act arose for
consideration, was perverse. He submitted that the impugned judgment and decree
passed by the first appellate Court were just and proper and does not warrant any
interference in the present appeal.
12. Considered the submissions and perused the record.
13. The grounds under Section 12(1)(a) and (f) of the Act have not been found
established by either of the Courts. Therefore, the controversy between the parties is
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SHARMA
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restricted to the issue as to whether the ground for eviction arises under Section 12(1)
(g) or (h) of the Act. For ready reference, Section 12(1)(g) and (h) of the Act are
reproduced hereunder:
“12. Restriction on eviction of tenants.
(1) Notwithstanding anything to the contrary contained in any other law
or contract, no suit shall be filed in any civil Court against a tenant for his
eviction from any accommodation except on one or more of the following
grounds only, namely :
*
(g) that the accommodation has become unsafe, or unfit for human
habitation and is required bonafide by the landlord for carrying out
repairs which cannot be carried out without the accommodation being
vacated;
(h) that the accommodation is required bonafide by the landlord for the
purpose of building or rebuilding or making thereto any substantial
additions or alterations and that such building or re-building or
alterations cannot be carried out without the accommodation being
vacated;”
14. A reading of the aforesaid provisions makes it evident that, under clause (g) of
Section 12(1) of the Act, the landlord can seek eviction of the tenant where the
accommodation has become unsafe or unfit for human habitation and is required by
the landlord for carrying out repairs that cannot be undertaken without the
accommodation being vacated.
15. On the other hand, under clause (h) of Section 12(1) of the Act, the landlord
can seek eviction of the tenant where the accommodation is bona fide required by the
landlord for the purpose of building or rebuilding, or making substantial additions or
alterations thereto, and such building, rebuilding, additions or alterations cannot be
carried out without the accommodation being vacated. Thus, under this clause, it is
the landlord’s need for which he is required to satisfy the requirements of sub-section
(7) of Section 12 of the Act.
16. To adjudicate the controversy between the parties, the averments made by
plaintiff in plaint needs to be examined. The plaintiff made the following averments
in paragraphs 3, 4 & 6 of the plaint:
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“3. यहदक व दन
क  भवन क फ
प रन ह । द न क 23/4/00 क  आई त ज आ2+
क  क रण ऊपर
क  दहस  दगर गय  ह  तथ  व गस भ ग भ
ब र
तरह कदतगस ह  गय  ह । तथ  व गस भ ग क

ससदत ऐस
ह  दक दकस
भ
सरय दगर सकत  ह  , दजसर% जन - +न क
ह दन ह  सकत
ह । सय
पदतव 
न  भ
व गस भ ग र% बस6य 2 गकर भवन क  दगरन  स  र क हआ ह । इस पक र भवन

क
ऐस
ससदत ह  दक उसक
ररमत ह न स भव नह
ह ।
4. यहदक नगर दनगर ग दयर द र भ
व 
क  भवन दगर ऊ ह न क  क रण भयप  ह न क  क रण
भवन दगर ए ज न क  स&चन  पत द य गय  थ ।
6. यहदक व गस भ ग क
ससदत अब और अद+क द?कस  ह त र% ह  गई ह  व भवन क
ऐस

ससदत ह  गई ह  दक व गस भ ग उत र बग र दनर ण एव ररमत ह न स भव नह
ह । भवन दनर ण
14/5/01
क
स
क@ दत ह त नक  पस त कर रख  हB व व  दCत फ
स भ
द न क क  जर  कर 
ह ।
इसद य व दन
क  व गस भवन क  उत रकर नव दनर ण कर न आवशक ह  गय  ह । इसद य
व दन
व गस भवन पदतव 
स  ख 
कर  प न क
अद+क ररण
ह “ । "
17. A reading of the aforesaid averments shows that they, in fact, fall under clause
(g) of Section 12(1) of the Act and not under clause (h) thereof. The learned first
appellate Court, therefore, committed a material error in its remand order dated
28.03.2009 by holding that clause (h), rather than clause (g), was attracted.
The learned counsel for the defendant argued that, since the remand order dated
28.03.2009 was not challenged by plaintiff, this issue could not be reopened and that
the matter had to be decided on the basis that clause (h) was attracted.
18. In this regard, it is to be noted that the finding recorded by the first appellate
Court in its remand order dated 28.03.2009 was binding on the first appellate Court
while passing the impugned judgment dated 1.08.2012. The learned counsel for the
defendant is, therefore, right in submitting that the first appellate Court could not
have held, in the impugned judgment that the averments made in the plaint fell under
clause (g).
19. However, the finding recorded by the first appellate Court in its remand order
dated 28.03.2009 can be examined by this Court in the present second appeal. This
view finds support from the judgment of the Apex Court in the case of Smt. Deorajin
Debi and another reported in AIR 1960 SC 941 , wherein the Court held in paragraph
8 as under:
"8. The principle of res judicata applies also as between two stages in the
same litigation to this extent that a court, whether the trial court or a
higher court having at an earlier stage decided a matter in one way will
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not allow the parties to re-agitate the matter again at a subsequent stage
of the same proceedings. Does this however mean that because at an
earlier stage of the litigation a court has decided an interlocutory matter
in one way and no appeal has been taken therefrom or no appeal did lie, a
higher court cannot at a later stage of the same litigation consider the
matter again?
*
13. There can be little doubt about the salutary effect of the rule as laid
down in the above cases on the administration of justice. The very fact that
in future litigation it will not be open to either of the parties to challenge
the correctness of the decision on a matter finally decided in a past
litigation makes it important that in the earlier litigation the decision must
be final in the strict sense of the term. When a court has decided the matter
it is certainly final as regards that court. Should it always be treated as
final in later stages of the proceeding in a higher court which had not
considered it at all merely on the ground that no appeal lay or no appeal
was preferred? As was pointed out by the Privy Council in Moheshur
Singhs Case3 the effect of the rule that at every stage of the litigation a
decision not appealed from must be held to be finally decided even in
respect of the superior courts, will put on every litigant against whom an
interlocutory order is decided, the burden of running to the higher courts
for redress of the grievances, even though it may very well be that though
the interlocutory order is against him, the final order will be in his favour
and so it may not be necessary for him to go to the appeal court at all.
Apart from the inevitable delay in the progress of the litigation that such a
rule would cause, the interests of the other party to the litigation would
also generally suffer by such repeated recourse to the higher courts in
respect of every interlocutory order alleged to have been wrongly made. It
is in recognition of the importance of preventing this mischief that the
legislature included in the Code of Civil Procedure from the very
beginning a provision that in an appeal from a decree it will be open to a
party to challenge the correctness of any interlocutory order which had
not been appealed from but which has affected the decision of the case.”
20. Thus, the plaintiff is within his rights to challenge the finding recorded by the
first appellate Court in its judgment dated 28.03.2009, before this Court. This Court
is also empowered under Order 41 Rule 33 CPC to examine correctness of remand
order dated 28.03.2009.
21. Even otherwise, it would be unreasonable to non-suit the plaintiff on this
technical ground. It is to be noted that, under both clauses (g) and (h), eviction may
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8
be directed in connection with the landlord's requirement to carry out repairs or to
rebuild the accommodation, as the case may be. The learned first appellate Court has
appreciated the evidence adduced by both parties and recorded a finding of fact that
the suit accommodation was in a dilapidated condition and was unsafe for human
habitation. The accommodation required rebuilding. Further, the appellate court has
given right of re-entry under Section 18 of the Act, to the defendant.
22. Firstly, such findings of fact are not open to interference by this Court under
Section 100 of the Code of Civil Procedure. Secondly, no substantial question of law
has been framed in this regard. Consequently, the finding of fact regarding the
dilapidated condition of the suit accommodation deserves to be upheld.
23. In view of the discussion made above, both the substantial questions of law
framed by this Court are answered by holding that the learned first appellate court
could not have rendered findings contrary to remand order dated 28.03.2009 and the
said order operates res-judicata in subsequent first appeal. However, it is further held
that this Court, in second appellate, can examine the correctness of the remand order
dated 28.03.2009.
24. Upon examination of the pleadings in the plaint, it is found that the first
appellate Court in first round in its remand order dated 28.03.2009, erred in holding
that the averments made in the plaint fell under clause (h) and not under clause (g). In
fact, the averments are covered by clause (g) of Section 12(1) of the Act.
Consequently, the judgment and decree dated 01.08.2012 passed by the 14th
Additional District Judge, Gwalior, in Civil Appeal No.11-A of 2012 is upheld. The
appeal fails and is dismissed accordingly.
(ASHISH SHROTI)
JUDGE
bj/-
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