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Madhya Pradesh High Court · body

2002 DIGILAW 971 (MP)

Prahlad v. Kalabatibai

2002-10-22

K.K.LAHOTI

body2002
Judgment ( 1. ) DEFENDANTS aggrieved by the judgment and decree passed by the Courts below by which suit filed by Kalabatibai wife of Babulal Arora was decreed for bona fide necessity to start hotel business of her major son Chhaganlal under Section 12 (1) (f) of the M. P. Accommodation Control Act, 1961, have filed present appeal. ( 2. ) THIS appeal was admitted on 10-5-2002 on following substantial question of law :-- "whether the suit filed by respondent/widow was maintainable before the Civil Court in view of Section 11-A of Madhya Pradesh Accommodation Control Act, 1961 ?" ( 3. ) TO appreciate the contention advanced on behalf of appellants, it is necessary to state facts in brief. Kalabatibai filed present suit on 20th April, 1992 for eviction on the ground of bona fide necessity for starting hotel business of her major son Chhaganlal and for recovery of arrears of rent. Appellants contested the suit inter alia, though have not taken specific ground in the Trial Court, that the suit was not maintainable. The Trial Court recorded finding while deciding issues 1 (a) and 1 (b) that the defendants are not in arrears of rent and have tendered the rent after receipt of notice. This suit was filed on 20th April, 92 while the notice was issued on 3rd March, 92, which was within two months. On this ground, the suit was not decreed under Section 12 (1) (a) of the Act. ( 4. ) SO far as the ground under Section 12 (1) (f) of the Act is concerned, learned Counsel for the appellants submits that the respondent Kalawati being a widow fall in special category of landlord as defined under Section 23-J of the Act and in view of Section 11-A of the Act suit filed by a landlord defined under Section 23-J is not maintainable in Civil Court. Respondent ought to have filed application for eviction before the Rent Controlling Authority and in this regard jurisdiction of Civil Court was barred. Reliance is placed on two decisions of the Apex Court, Ashok Kumar Gupta v. Vijay Kumar Agrawal [ (2002) 3 SCC 717 ] and Dhannalal v. Kalawatibai [ (2002) 6 SCC 16 ] and it is contended that the Civil Court having no jurisdiction to decide the suit filed by a landlord defined under Section 23-J of the Act. Reliance is placed on two decisions of the Apex Court, Ashok Kumar Gupta v. Vijay Kumar Agrawal [ (2002) 3 SCC 717 ] and Dhannalal v. Kalawatibai [ (2002) 6 SCC 16 ] and it is contended that the Civil Court having no jurisdiction to decide the suit filed by a landlord defined under Section 23-J of the Act. Both the Courts below erred in entertaining the suit in respect of bona fide necessity. Respondent though served and represented has not caused ap- pearancc before this Court. Hence argument of learned Counsel for the appellants considered. ( 5. ) APEX Court considering Sections 23-A and 23-J of the Act in Ashok Kumar Gupta (supra) held in paras 9 and 10 of the judgment :-- "9. Hence, it is pertinent to note that by Act 27 of 1983 Chapter III-A was inserted in the Act with effect from 16-84983. The Chapter had nine sections-- Sections 23-A to 23-I, as originally enacted. Section 23-J to which reference will be made presently, was inserted in 1985. The ground of eviction for bona fide requirement contained in Section 23-A has two limbs; Clause (a) applies when the accommodation is let for residential purpose and Clause (b) applies when the purpose of letting is non-residential. Section 23-A also opens a non-obstante clause and says that notwithstanding anything contained in any other law for the time being in force or contract to the contrary a landlord may submit an application to the Rent Controlling Authority on one or more of the grounds contained in Clauses (a) and (b) referred to above. It is provided that the accommodation let out for residential purposes, if required, bona fide by a landlord for occupation as residence for himself or for any member of his family or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable accommodation for his occupation in the same city or town, the application seeking eviction of the accommodation has to be made by the landlord to the Rent Controlling Authority, In other words, the jurisdiction to pass order of eviction on the ground mentioned in Section 23-A was conferred on the Rent Controlling Authority and the Civil Courts jurisdiction was ousted impliedly in that behalf. But that position remained in existence only for a short period till 16-1-1985 when by Act 7 of 1985 Section 11-A was inserted in Chapter III and Section 23-J was inserted in Chapter III-A. Section 11-A says that the provisions of Chapter III so far as they relate to the matter, specially provided in Chapter III-A shall not apply to the landlord defined in Section 23-J. Section 23-J enumerates five categories of landlords. They are as under :-- (i) a retired servant of any Government or a retired member of defence services; (ii) a retired servant of a company owned by any Government; (iii) a widow or a divorced wife; (iv) physically handicapped person; and (v) a Government servant etc. not entitled to Government accommodation. 10. The position after 16-1-1985 is that only in respect of the aforementioned categories of the landlords the Rent Controlling Authority has jurisdiction to order eviction of a tenant on grounds of bona fide requirement under Section 23-A. A conjoint reading of Sections 11-A, 12, 23-A, 23-J and Section 45 would show that in regard to the bona fide personal requirement of the landlord who does not fall within the specified categories in Section 23-J, the Civil Court has jurisdiction to entertain a suit and pass decree under Clause (e) of Sub-section (1) of Section 12 of the Act. It follows that the Civil Court rightly entertained counter-claim under Section 12 (1) (e) of the Act so the decree passed by it is not vitiated for want of jurisdiction. " ( 6. ) IN Dhannalal (supra), the Apex Court in para 25 of the judgment has considered this aspect :-- "25. Reverting back to the issue before us, the cause of action is one-- requirement of a major son, who himself is a co-owner. It is capable of being construed in two ways, depending on from the point of view of which of the landlords we look at. From the point of view of the widow landlady and owner it is a case of the accommodation let for non-residential purpose required bona fide by the landlady for the purpose of continuing or starting the business of any of her major sons, within the meaning of Section 23-A (b) of the Act. From the point of view of the widow landlady and owner it is a case of the accommodation let for non-residential purpose required bona fide by the landlady for the purpose of continuing or starting the business of any of her major sons, within the meaning of Section 23-A (b) of the Act. From the point of view of the major son himself, who is also himself an owner, it is a case of the accommodation let for non-residential purpose required bona fide by the landlord for the purpose of continuing or starting his business as he is owner thereof, within the meaning of Section 12 (1) (f) of the Act. In the former case the cause of action is triable by way of an application before RCA. In the latter case the cause of action is triable in a suit instituted in the Civil Court. Any one of them may single commence the proceedings without implead-ing the other or by impleading the other as a non-applicant or defendant in pro forma capacity in which case the choice of forum would present no difficulty. The former shall go to RCA. The latter shall go to the Civil Court. However, the law does not prevent the co-owner landlords from joining together to sue on the cause of action common to them all. And if they do so the conflict of jurisdiction arises. The choice of forum, in such a case, must of necessity be left open to the plaintiffs. Otherwise they will be left without remedy. However, the law does not prevent the co-owner landlords from joining together to sue on the cause of action common to them all. And if they do so the conflict of jurisdiction arises. The choice of forum, in such a case, must of necessity be left open to the plaintiffs. Otherwise they will be left without remedy. Keeping in view the three relevant principles (i) that every wrong must have a remedy and every right to relief must have a forum for enforcement, (ii) that the plaintiff is dominus litis, and (iii) that one co-owner/landlord can file a suit for ejectment of the tenant and it is not necessary that all co-owners/landlords must jointly sue for ejectment though they are not prevented from - rather entitled to - joining together and suing jointly if they wish to do so, we proceed to state our conclusions as under :-- (i) Where a claim for eviction is filed by a landlord, or a co-landlord, belonging to any one of the categories defined in Section 23-J of the Act, as the sole applicant without objection by other co-landlords who have not joined as co-applicants and the nature of claim for eviction is covered by Section 23-A (b) of the Act, the proceedings would lie only before the Rent Controlling Authority. (ii) Where a claim for eviction is filed by a landlord or by such a co-landlord who does not belong to any of the categories defined by Section 23-J and the other co-landlord/ landlady falling in one of the categories defined in Section 23-J is not joined as a co-plaintiff the claim shall have to be filed only by way of a suit instituted in a Civil Court. (iii) If the proceedings are initiated by such co-owner landlords, one or more of whom belong to Section 23-J category while some others are those not falling within the definition of "landlord" under Section 23-J and the requirement pleaded provides a cause of action collectively to all the landlords arrayed as plaintiffs or applicants, the choice of forum lies with the landlords. They may file an application before RCA under Chapter III-A or may file a civil suit in a Civil Court under Section 12 of the Act; in either case the proceedings would be competent and maintainable. " ( 7. They may file an application before RCA under Chapter III-A or may file a civil suit in a Civil Court under Section 12 of the Act; in either case the proceedings would be competent and maintainable. " ( 7. ) IN view of the settled position by the Apex Court, in the present case suit for eviction was filed by Kalabati who is undisputedly a "landlord" defined under Section 23-J of the Act, being a widow and nature of the suit for eviction is covered by Section 23-A (b) of the Act which reads as under :-- "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 Rules 14 and 15 of Order IV 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 :-- (a) *** *** *** *** *** (b) that the accommodation let for non-residential purposes is 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 daughter 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 his own in his occupation in the city or town concerned : In the circumstances, as per the aforesaid decisions in Ashok Kumar and Dhannalal (supra) suit filed by the respondent was not maintainable in the Civil Court for claiming eviction on the ground of bona fide necessity of her son and only Rent Controlling Authority was having jurisdiction to try the suit. Civil Court ought to have returned the plaint to the respondent to file it before the Rent Controlling Authority. ( 8. Civil Court ought to have returned the plaint to the respondent to file it before the Rent Controlling Authority. ( 8. ) IN view of the aforesaid, the appeal is allowed, decree for eviction passed by the Courts below under Section 12 (1) (f) of the Act is set aside and the matter is remanded back to the Trial Court to return the plaint to plaintiff/respondent to file it in appropriate forum. There shall be no order as to costs.