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Madhya Pradesh High Court · body

2005 DIGILAW 1272 (MP)

Nandlal v. Mangibai

2005-12-12

S.K.SETH

body2005
ORDER 1. Does the civil Court have jurisdiction to entertain a composite plea for eviction made by landlord covered by section 23-J of the M.P. Accommodation Control Act, 1961? Did the First Civil Judge Class II, Jaora commit an illegality in passing the order impugned dated 11.8.2004 in Civil Suit No. 23-A of 2002? These two questions are involved for determination in this petition under Article 227 of the Constitution of India. 2. Petitioner herein is defendant in an eviction suit filed by respondent a widow landlady. It is not disputed that she is seeking petitioner's eviction from suit accommodation on the grounds covered by section 12 (1) (a), (d) and (e) of the M.P. Accommodation Control Act, 1961 (hereinafter referred as "the Act" for short). In written statement, petitioner opposed the claim in suit. Based on pleadings, learned trial Court settled number of issues for trial, including issue No.6 relating to jurisdiction of the trial Court to entertain claim for eviction on the ground of bona fide self need of widow-landlady. Petitioner filed an application under Order XIV Rules 1 and 2 r/w section 151 of the Code of Civil Procedure, 1908 praying for determination of Issue No.6 as a preliminary issue. Respondent opposed the application and by the impugned order, learned trial Court sustained the objection hence, this petition. 3. At the time of hearing, learned counsel for petitioner submitted that after amendment in the Act in the year 1985, it is clear that Rent Controlling Authority alone has the exclusive jurisdiction to try a claim for eviction on the ground of bona fide need of specified categories of landlords. Civil suit in that regard is, therefore, not maintainable. According to him, issue No.6 is a pure question law and does not require investigation into facts; hence, trial Court ought to have tried it as a preliminary issue. In rejecting the application by order impugned, trial Court committed illegality or at any rate material irregularity. 4. Per contra, learned counsel appearing for respondent supported the order impugned and submitted that after 1976 amendment in the Code, piece-meal trial of issues is undesirable, and the trial Court rightly refused to try Issue No.6 as preliminary issue and in doing so, committed no illegality. Thus, according to him, present writ petition deserves dismissal with costs. 5. 4. Per contra, learned counsel appearing for respondent supported the order impugned and submitted that after 1976 amendment in the Code, piece-meal trial of issues is undesirable, and the trial Court rightly refused to try Issue No.6 as preliminary issue and in doing so, committed no illegality. Thus, according to him, present writ petition deserves dismissal with costs. 5. Before adverting to rival contentions, it is necessary to keep in mind provisions of relevant law. The M.P. Accommodation Control Act, 1961 governs relations between landlord and tenant covered by the Act of 1961. Section 12 provides certain grounds for eviction of tenant. Madhya Pradesh Accommodation Control (Amendment) Act No.7 of 1985 inserted section 11-A and section 23-1 in the Act of 1961. Section 11-A read with Chapter III-A provide special procedure and confer jurisdiction on Rent· Controlling Authority to try and decide an application for eviction on the ground of bona fide requirement of landlord defined under section 23-1. As far as eviction, on other grounds, is concerned, there is no doubt that the civil Court has the jurisdiction to try a suit. It is in this backdrop present controversy has to be resolved. 6. From the material available on record, it is clear that respondent-a widow landlady alone is seeking eviction on three counts, viz. arrears of rent; non-user of suit accommodation for more than six months and bona fide self-requirement. These grounds are covered respectively by section 12 (I) (a), (d) and (e) of the Act. Issue No.6 pertains to the jurisdiction of civil Court to deal with the eviction on the ground of bona fide need of the suit accommodation of the widow landlady-respondent. Undisputedly respondent is covered by definition of landlord given in section 23-1 and is governed by section 23-A but she opted for eviction of petitioner from suit accommodation on three grounds as mentioned above and herein lies the twist in the context of factual matrix of the case. Had it been a simple case for eviction on ground of bona fide requirement, there would have been no difficulty because law is quite clear. However, in a composite plea for eviction like the present one, what is the course open to the trial Court. Could the trial Court entertain and try respondent's plea for eviction on ground of bona fide need along with other grounds for eviction? However, in a composite plea for eviction like the present one, what is the course open to the trial Court. Could the trial Court entertain and try respondent's plea for eviction on ground of bona fide need along with other grounds for eviction? Necessarily, answer to this would be in negative. 7. Order XIV of the Code provide for settlement of issues and determination of suit on issues of law or issues of facts. Issues are framed with an object to pinpoint the real and substantial points of difference between the parties emerging out of material pleadings in a case. Substituted Rule 2 of Order XIV now requires a Court to pronounce judgment on all issues other than those preliminary issues excepted by sub-rule (2). Where any issue of law relates to jurisdiction of the Court 01 bar to the suit, the Court may postpone determination of other issues until the preliminary issue has been determined. Issues relating to jurisdiction and bar of suit must be pure question of law as distinguished from mixed questions of law and facts. In case where issues of law go to the very root of case, and the case or part thereof may be disposed of without investigation or enquiry, it is the duty of the Court to determine issue of law first, as it will save unnecessary inconvenience to parties and waste of time, labour of the Court as well. If the Court does not have jurisdiction over the entire subject-matter or part thereof in a suit, it cannot touch merits of the case to that extent. A conjoint reading of section II-A, 12, 23-A, 23-J and section 45 would show that civil Court's jurisdiction is ousted with regard to claim of eviction based upon bona fide need of landlord as defined in section 23-J. In view of this, it is clear, trial Court required no investigation or enquiry to reach that conclusion. It cannot touch the merits of that plea in view of jurisdiction conferred upon the Rent Controlling Authority in respect of landlords covered by section 23-J of the Act. It is settled law that when an authority is created by statute and matter is committed to its jurisdiction, that authority alone is competent and has jurisdiction to decide all matter connected therewith. Shree Ambika Mills v. Bhatt [ AIR 1961 SC 970 (974)]. It is settled law that when an authority is created by statute and matter is committed to its jurisdiction, that authority alone is competent and has jurisdiction to decide all matter connected therewith. Shree Ambika Mills v. Bhatt [ AIR 1961 SC 970 (974)]. Same view is taken by the decision in Dhannalal v. Kalawatibai [AIR 2002 SC 2527 (2581)] and Ashok Kumar Gupta v. Vijay Kumar Agarwal [ (2002) 3 SCC 717 (721)]. Cause of action for eviction based upon bona fide need under Chapter III-A for one of the five specified categories of landlords, is altogether different and distinct and has no bearing on the cause action for eviction on other grounds. Thus, the ejectment suit as framed and instituted by respondent in respect of her bona fide need could not be entertained by the trial Court. Thus, the order impugned suffers from legal infirmity and has to be set aside. However, this does not take away her legal right of remedy available to her under the law. 8. In the result, present writ petition is allowed to the extent indicated above. The Lower Court therefore, now shall proceed with the trial of suit leaving aside the question of bona fide need. Looking the age of respondent, it would be in the interests of justice to direct parties to appear before Court below on 16.1.2006. Learned trial Court thereafter shall proceed to decide the suit falling within its jurisdiction as expeditiously as possible in accordance with law. However, in view of facts and circumstances of the case, there shall be no orders as to costs.