KISHOREKUMAR v. MANIBAI — 1988 DIGILAW 191 (MP)

K. L. SHRIVASTAVA, J. ( 1 ) THIS revision petition by the tenant under S. 23e of the M. P. Accommodation Control Act, 1961 (for short 'the Act') is directed against the order dated, 14-9-87 passed by the Rent Controlling Authority, Indore (for short 'the Authority') in Rent Case No. 536/84 whereby rejecting the petitioner's application under O. 7, R. 11, C. P. C. , 1908 (for short 'the Code') it has been held that the application under S. 23a (b) of the Act for his eviction is maintainable before it. ( 2 ) CIRCUMSTANCES giving rise to the revision petition are these. The non-applicant Mst. Manibai as the sole 'landlord' filed the aforesaid application under S. 23a (b) of the Act before the Authority for petitioner's eviction on the ground that the non-residential accommodation in question is required bona fide by her for the business of her major son Satyawan. ( 3 ) DURING the pendency of the application for eviction, the petitioner filed the aforesaid application under O. 7, R. 11 (d) of the Code urging that in view of the decision in Sushila Devi's case, 1987 Jab LJ 450the application for eviction for the purpose of son's business was not maintainable. Relying on the decision in Smt. Jain v. Krishna Mohan, AIR 1987 SC 222 , it was urged that as the N. A. has alternative accommodation the urgency provision in S. 23a of the Act could not be availed of. ( 4 ) THE contentions sought to be canvassed by the petitioner did not find favour with the Authority and it, therefore, passed the impugned order. ( 5 ) THE contention of the petitioner in this Court is that the impugned order is unwarranted in view of the aforesaid decisions. ( 6 ) THE contention of the respondent's learned counsel is that on the material on record, the impugned order is clearly sustainable. ( 7 ) THE point for consideration is whether the revision petition deserves to be admitted. ( 8 ) THE petitioner's learned counsel has submitted before me that in view of the decision in Mahavir Kumar's case, 1987 MPLJ 124 , an appeal has also been preferred against the impugned order. It may be pointed out that in the aforesaid decision the impugned order was one under S. 13 of the Act which is made applicable to the proceedings under Chap. It may be pointed out that in the aforesaid decision the impugned order was one under S. 13 of the Act which is made applicable to the proceedings under Chap. III-A of the Act by virtue of Sec. 23h of the Act. In the case in hand the impugned order is not one under S. 13 and the decision is thus distinguishable. ( 9 ) AS pointed out in Jagdish Prasad's case, 1986 MPRCJ 289 the special provisions in Chap. III-A (Ss. 23-A to 23-I) of the Act was added by the Amending Act of 1983, providing a new forum authorised to make summary inquiry and the order being only revisable. The provision in Sec. 23-E of the Act providing for revision is in these terms : - 23-E. Revision by High Court :- (1) Notwithstanding anything contained in Sec. 31 or Sec. 32 no appeal shall lie from any order passed by the Rent Controlling Authority under this Chapter. (2) The High Court may, at any time 'suo motu' or on the application of any person aggrieved, for the purpose of satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceedings of the Rent Controlling Authority, call for and examine the record of the case pending before or disposed of by such Authority and may pass such order in revision in reference thereto as it thinks fit and save as otherwise provided by this section, in disposal of any revision under this section the High Court shall as far as, may be, exercise the same power and follow the same procedure as it does for disposal of a revision under S. 115 of the Civil P. C. , 1908 (5 of 1908) as if any such proceeding of the Rent Controlling Authority is of a Court subordinate to such High Court. Provided that no powers of revision at the instance of person aggrieved shall be exercised unless an application is presented within ninety days of the date of the order sought to be revised. Section 115 of the Code also provides that revisional powers can be exercised where no appeal lies. ( 10 ) IT may be stated that the impugned order having been passed by the Authority acting under Chap. III-A of the Act is clearly revisable as provided by S. 23e (2) of the Act. Section 115 of the Code also provides that revisional powers can be exercised where no appeal lies. ( 10 ) IT may be stated that the impugned order having been passed by the Authority acting under Chap. III-A of the Act is clearly revisable as provided by S. 23e (2) of the Act. The decision in Mahavir Kumar's case ( 1987 MPLJ 124 ) (supra), as already pointed out is clearly distinguishable on facts. ( 11 ) IN passing it may also be observed that there does appear to be some force in the contention that in view of the language employed in S. 23-E and the object behind its enactment being to shorten duration of litigation 'any order' passed by the Authority in exercise of the jurisdiction under Chap. IIIA (Ss. 23-A to 23-J) is revisable thereunder. The correctness of the decision rendered in Mahavirkumar's case may be open to challenge but for the purposes of the present revision it is not necessary to go into that controversy. ( 12 ) COMING to the merits of the case, it is necessary to advert to the relevant provision embodied in S. 23-A (b) of the Act without the proviso with which we are not concerned :-23-A. Special provision for eviction of tenant on ground of bona fide requirement- Notwithstanding anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in a manner provided in Rr. 14 and 15 of O. VI of the First Schedule to the Code of Civil Procedure 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation, namely : - (b) that the accommodation let for non-residential purpose required "bona fide" by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of own in his occupation in the city or town concerned. It is clear from a plain perusal of the provision that the Authority shall have jurisdiction to decide an application under S. 23-A of the Act where the accommodation is required bona fide by the landlord either for the landlord's business or for the business of his major sons or unmarried daughters. It may be noted that for eviction on the ground under S. 23-A (a) of the Act which uses the expression 'members of the family' as defined in S. 2 (e) of the Act, the condition is that the son or daughter for whose occupation the residential accommodation is required by the landlord must, in view of the definition in S. 2 (e) must be living jointly with the landlord but such is not the requirement u/s. 23-A (b) ibid relating to non-residential accommodation. That it may have a bearing on the question of the requirement being bona fide or not is an altogether different matter. The point of substance is that under both the provisions the requirement must, however, be of the landlord and not of others. The crucial question thus is to see as to whose requirement is the foundation of the action. It may be pointed out that a landlord may himself run his business or he may run it through his son or servant or the business may be not his but his major son's but in either case the requirement for the accommodation has to be of the landlord of the special category. As pointed out in paragraph 14 of the decision in Shushila Devi's case (AIR 1987 Madh Pra 65) (supra) it is with reference to the pleadings that the law has to be applied and interpreted. In the decision in Dr. Ku. Maltibai Sapre's case (1986 MPRCJ (SN) No. 119) with reference to two earlier decisions it has been pointed out that the requirement of accommodation for housing a near relation of the ailing landlord aged 81 years is the landlord's personal requirement. In the decision in Dr. Ku. Maltibai Sapre's case (1986 MPRCJ (SN) No. 119) with reference to two earlier decisions it has been pointed out that the requirement of accommodation for housing a near relation of the ailing landlord aged 81 years is the landlord's personal requirement. Where the requirement of the accommodation is of the special category of landlord, the mere fact that it is for the business of the landlord's major son who happens to be a co-landlord falling within the general definition of landlord, cannot in my view be urged in negation of the statutory right of the special category of landlord to claim tenant's eviction for the business not only his own but also of his major son. To interpret the provision differently is to introduce in the provision in S. 23-A (b) of the Act the words 'who are not co-landlords' after the words 'his major sons or unmarried daughters' and this is impermissible as it would amount to legislation in the garb of interpretation. ( 13 ) THE decision in Sushila Devi's case AIR 1987 Madh Pra 65 (supra) deals with a case where the son was a co-landlord and relying on the decision in Winifred Ross' case AIR 1984 SC 458 which relates to a retired military officer who had acquired the premises in question after his retirement, it was held that where the landlords are categorised, one landlord cannot file the proceedings for the requirement of another landlord. There can be no quarrel with this proposition. Where, however, the requirement is of the special category of landlord falling under the restrictive definition of the term as embodied in S. 23-A of the Act and not of the co-landlord coming under the general category of landlord as defined in S. 2 (b), the position as already discussed is quite different. It may also be pointed out that a landlord falling under the restrictive definition of landlord cannot in view of the provision in S. 11-A of the Act inserted in Chap. III ibid by the Amending Act of 1975, avail himself of the corresponding provisions in Chap. III (Ss. 12 to 23) before the Civil Court regarding his tenant's eviction. It may also be pointed out that a landlord falling under the restrictive definition of landlord cannot in view of the provision in S. 11-A of the Act inserted in Chap. III ibid by the Amending Act of 1975, avail himself of the corresponding provisions in Chap. III (Ss. 12 to 23) before the Civil Court regarding his tenant's eviction. ( 14 ) AS pointed out in the decision in Jagdish Prasad's case (1986 MPRCJ 289) (supra) the provision for the benefit of special category of landlords should be so construed as to advance the remedy. It may also be stated that in Sushila Devi's case (AIR 1987 Madh Pra 65) (supra) the earlier decision in Badriprasad's case 1987 MPRCJ 66 has not been noted. The decision in Saroj Thareja's case 1988 0 Jablj 115 may also be usefully perused. ( 15 ) IN the instant case, the son for whose business the accommodation is required by the landlord, is not a co-landlord and the applicability of the decision in Sushila Devi's case is clearly not attracted. ( 16 ) THE decision in S. P. Jain's case ( AIR 1987 SC 222 ) (supra) relates to the interpretation of S. 24-B (7) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (13 of 1972 ). The Act contains no such provision and as the law stands, even where the landlord is alleged to be in possession of a part of the premises in which the tenanted accommodation is situate an application under S. 23-A of the Act is maintainable before the Rent Controlling Authority and it is for the Authority to determine the sufficiency and suitability of the same as an alternative accommodation before passing final order on the application. It may be pointed out that 0. 7, R. 10, CPC, provides for rectum of plaint and O. 7, R. 11 (d) authorises rejection of plaint where the suit appears from the statement in the plaint to be barred by any law. Reference in this connection may usefully be made to the decision in M. V. G. N. S. S. v. Vasantrao, 1988 MPLJ 326 . ( 17 ) AS a result of the foregoing discussion I find that the revision petition is wholly without merit and is, consequently, dismissed summarily. Petition dismissed. .