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Madhya Pradesh High Court · body

2003 DIGILAW 775 (MP)

Raghuveer Charan Sharma v. Aditya Narayan Kapoor

2003-06-25

UMA NATH SINGH

body2003
ORDER 1. This civil revision impugns a composite order dated 22.3.2000 passed by the Rent Controlling Authority, Vidisha, in Case No. 4/A-90/ 98-99, rejecting the application of the tenant-applicant (herein) for leave to defend under section 23-C of the M.P. Accommodation Control Act, 1961 (for short 'the Act') and directing eviction of the tenant (applicant herein) there under. The reasons leading to rejection of the application as noted in the impugned order are that the application was filed after inordinate delay of 8 months on 9.9.1997; that it did not disclose sufficient ground to defend; and that the earlier application for leave to defend filed on 6.1.1997 was not only time-barred but was also not supported by an affidavit as per section 23-C of the Act. Section 23-C of the Act, being a relevant provision, on reproduction reads as under: "23-C. Tenant not entitled to contest except under certain circumstances -- (1) The tenant to whom the summons is served in the form specified in the Second Schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen days from the date of service of the summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Rent Controlling Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such leave is refused, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant. The Rent Controlling Authority shall in such a case pass an order of eviction of the tenant from the accommodation: Provided that the Rent Controlling Authority may, for sufficient cause shown by the tenant, excuse the delay of the tenant in entering appearance or in applying for leave to defend the application for eviction and where ex parte order has been passed, may set it aside. (2) The Rent Controlling Authority shall, within one month of the date of receipt of application, give to the tenant, if necessary, leave to contest the application, if the application supported by an affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the accommodation on the ground specified in section 23-A." 2. Shri Kaushik, learned counsel amongst others submits that as per ratio of two decisions of this Court reported as: (1) Gopal Shankar Sahai v. Thakur Sahab Singh [ 1986 JLJ 562 = 1986 MPLJ 163] and (2) Satish Chandra v. Smt. Shantidevi [1987 MPRCJ SN 57]; filing of affidavit in support of application under section 23-C of the Act is not necessary. That apart, Shri Kaushik also places reliance on a judgment of Hon'ble the Apex Court reported as : Liaq Ahmed and others v. Habeeb-Ur-Rehman [ AIR 2000 SC 2470 ]. 3. On the other hand, Shri Bansal, learned counsel for the respondents, counters the aforesaid submissions on the grounds of inordinate delay of eight months in filing affidavit in support of the aforesaid application; defiant attitude of the applicant in not paying the cost of Rs. 1,000/- to the Landlord/non-applicant (herein) in violation of directions of this Court in the order dated 30.3.1999 dismissing his Civil Revision No. 1224/1997; and deliberate default in payment of monthly rent of Rs. 55/- for 67 months, now said to have been deposited in one go. 4. Having considered the rival submissions, I do not find any infirmity in the impugned order. The applicant is a tenant in the premises in question from 13.9.1968. The landlord retired from a government service on 31.10.1991 and being a Law Graduate started legal practice on being registered as a Lawyer on the Roll of Bar Council of Madhya Pradesh on 6.11.1992. Gradually as he picked up the practice he needed the premises for his professional work. Hence, he fined an application for eviction under section 23-A of the Act after three years in 1995. A notice issued by the Rent Controlling Authority was served on the tenant/applicant on 19.12.1996 and he was asked to appear in the Court on 30th December, 1996. As per requirement of section 23-C of the Act a tenant can file an application for leave to defend within 15 days of receipt of the notice and normally the period would have been calculated from 19.12.1996. But, the applicant contends that the said period is to be counted only from the date of service of plaint on 30.12.1996, and not from 19.12.1996 when he had been served only with the notice. According to him, the application was filed within time, on 6.1.1997. But, the applicant contends that the said period is to be counted only from the date of service of plaint on 30.12.1996, and not from 19.12.1996 when he had been served only with the notice. According to him, the application was filed within time, on 6.1.1997. Without going into the point of limitation in filing the said application, which stands concluded by the order dated 30.3.1999 of this Court in Civil Revision No. 1224 of 1994, the main question which appears to have weighed in the mind of the Rent Controlling Authority was belated filing of application with affidavit after a gap of eight months on 9.9.1997. The earlier application which was dismissed on the ground of limitation was also not supported by requisite affidavit. The judgments of this Court (supra) cited by the applicant though do not mandate immediate filing of affidavit with an application for leave to defend but the judgment in Gopal Shankar Sahai's case (supra) does say as : "The requirement of affidavit is also mandatory, but it was not necessary that the affidavit must have also been filed within fifteen days; it could have been filed later and cause could have been shown for belated filing of the affidavit. The only requirement of sub-section (1) of section 23-C is that the application must be "supported" by an, affidavit. The requirement is not that it must be accompanied by an affidavit which the Authority could insist before considering the application. True, an affidavit was a pre-requisite as is indicated by the use of the word "supported". Section 23-C does not imply, however, penalty for an affidavit not accompanying tenant's application and its rejection summarily, without being considered on merits. It was the duty of the Authority to allow the tenant an opportunity to make amends and remove formal defect in the application by filing of the affidavit, which would have merely lent weight or "support" to the bona fide of tenant's plea set out in the application.'' Further as the decision of Satish Chandra's case (supra) is based on Gopal Shankar Sahai's judgment and as the judgment of Hon'ble the Apex Court in Liaq Ahmed's case has been rendered in a different premises, provisions of section 23-C of the Act as interpreted in Gopal Shankar Sahai's case would guide the decision of this case. However, at the very least, on a reading of the said judgment, I would say that an affidavit in support of application should be filed within a reasonable time, but in the instant case a second application with affidavit was filed after a gap of eight months. Besides that, the application for leave to defend failed to disclose sufficient reasons and there was no material on record or specific details to support the averments in the application to the effect that the landlord did not want to start law practice and if at all he wanted to do so he could have run his office and operated from vacant premises available in the house he was residing in. On the other hand, bona fide requirement of the premises in question for professional use by the plaintiff-non-applicant, prima facie, appears to be backed by materials like enrolment of the plaintiff as an Advocate right from 30.10.1991. Moreover, the defendant-applicant's default in payment of rent of 67 months and subsequent payment of the said amount in one go also appear to be indefensible. Thus, the first application for leave to defend under section 23C of the Act was not only time barred but was also not supported by necessary affidavit, and, therefore, it was rejected. The second application being the subject matter of this revision though supported by affidavit was filed after inordinate delay of 8 months and further it did not show sufficient cause to grant leave to defend. Hence, the Rent Controlling Authority has correctly passed an order of eviction of the applicant under section 23-C (1) of the Act. As a corollary, under the provisions of section 23-G(2) (a) of the Act as per the second part of the impugned order, the applicant has been held to be entitled to obtain possession of the premises in question after two months from the date of order. 5. Thus, as the impugned order does not suffer from any illegality, impropriety or incorrectness in terms of section 23-E of the Act, the Civil Revision being devoid of merits is hereby dismissed.