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Madhya Pradesh High Court · body

2006 DIGILAW 227 (MP)

Narendra Gupta v. Sharda Saran Shrivastava

2006-02-08

P.K.JAISWAL

body2006
ORDER 1. Heard on admission. This revision is filed against the order dated 21.4.2005 passed by Vth Civil Judge, Class II, Gwalior whereby the application under Order 7 Rule 11 of CPC filed by the plaintiff was rejected. 2. In the tenanted premises there is a passage towards main road Naya Bazar, Lashkar, Gwalior for incoming and outgoing to the suit house. The owner started raising obstruction in the said passage by keeping his goods which causes inconvenience to the non-applicant/plaintiff and as such he filed a suit for declaration and permanent injunction to declare that he is tenant of the applicant/defendant over the disputed house and paying the rent at the rate of Rs. 75/- per month and applicant be restrained from dispossessing him from the suit house without following the due process of law and further defendant be injected not to obstruct the way in any way directly on indirectly by putting the lock etc. The plaintiff also moved an application for grant of temporary injunction. The applicant submitted its reply and preliminary objection regarding maintainability of the suit under section 45 of M.P. Accommodation Control Act (hereinafter referred to as "the Act") and submitted that the civil Court has no jurisdiction to grant relief as prayed by the plaintiff. He also filed an application under Order 7 Rule 11 (d) of CPC on the ground that in the suit plaintiff claimed a relief for injunction in respect of passage which is essential service and under section 45 of the Act, the civil Court has no jurisdiction to grant such relief and prayed for dismissal of the suit. The trial Court rejected the application by holding that the passage is not rented by the plaintiff and as such the suit is maintainable and provisions of section 45 of the Act will not be applicable in the present facts and circumstances of the case. 3. Learned counsel for the applicant submitted that section 38 prohibits the landlord from cutting off or withholding essential supply or service enjoyed by the tenant without just and sufficient cause. As per explanation of section 38 of the Act "essential supply or service" includes supply of water, electricity lights in passages and on staircases, conservancy and sanitary services. 3. Learned counsel for the applicant submitted that section 38 prohibits the landlord from cutting off or withholding essential supply or service enjoyed by the tenant without just and sufficient cause. As per explanation of section 38 of the Act "essential supply or service" includes supply of water, electricity lights in passages and on staircases, conservancy and sanitary services. In the case of Bhawarlal v. Shyamji [ 1993 (1) MPWN 169 ] this Court has held that door can also be covered under essential supply or service. In Sudesh Mehta v. Bhagchand and another [1988 (II) MPWN 211 = 1987 MPLJ 814 ] this Court held that the words 'essential supply or service' not only include use of electricity, water, bath room or latrine, but also include the use of entire suit premises inclusive of windows and doors; windows for ventilation and doors for ingress and egress and as such it does come within the meaning of 'essential service'. In Ashok K. Gupta v. Vijay K. Agrawal [ 2002 (2) JLJ 431 ] the apex Court has held that Rent Controlling Authority is empowered to decide questions under section 10 and Chapter III-A of the Act and civil Court has no such jurisdiction. In Ramcharan Sukhlal v. Daulat Munniram [ 1996 MPLJ 192 ] this Court has held that if the landlord did not fix the door the remedy is by way of a petition under section 37 as jurisdiction of civil Courts is barred by section 45 of the Act. The learned counsel for the non-applicant submits that obstruction in the use of passage does not amount to withholding of essential supply of service. In support of the said contention he drew my attention to the decision of this Court in the case of B.K. Joshi (Dr.) v. Murlidhar [1973 JLJ SN 50] in which this Court has held that section 38 of the Act does not prescribe the remedy for cutting off or withholding a supply or service which is "non-essential". Essential supply or service only means the withholding of the supply or service which would create a substantial detriment to the tenant in the use of the accommodation. Essential supply or service only means the withholding of the supply or service which would create a substantial detriment to the tenant in the use of the accommodation. The landlord appellant had given a licence to the tenant to use the passage which could be withdrawn and such withdrawal of licence could not be held to be withdrawal of any "essential supply or service" within the maning of section 38. In Harisingh v. Gendalal [1976 JLJ SN 91] the plaintiff filed a suit against defendant for issuance of an injunction and for keeping the tenanted portion in good and habitable condition. The landlord was and is under an obligation to keep the tenanted premises in a safe, good and tenantable condition. The defendant resisted the suit on the ground that the plaintiff's grievance related to the obligation of the landlord to keep the accommodation in tenantable repairs and in case of his not fulfilling that obligation the remedy is provided in section 37 of the Act and under section 45 of the Act. The civil Court had no jurisdiction to allow the suit. This Court held that civil Court had jurisdiction to try the suit. In Ramgopal v. Sitaram [1983 JLJ SN 33] this Court held that 'essential supply or service' can only mean the withholding of the supply or service which would create a substantial detriment in the use of the accommodation to the tenant. Therefore, the mere fact that the appellant landlord had allowed the respondent-tenant to make use of the Galiara through the back door installed in the shop cannot be said to constitute a term of tenancy especially when the tenant has another passage from his own premises and that too not in connection with the accommodation let to him, but for some other purpose, namely for going to the first floor to see his father'. Therefore, the permission granted by the landlord does not give a right to the defendant which could be included in the term 'essential supply or service'. In the above case Galiara is not included in the tenancy of the tenant nor the Galiara is used in respect of the accommodation let to him. This Court held that provisions of section 38 having no application even if the landlord has allowed the use thereof. In the above case Galiara is not included in the tenancy of the tenant nor the Galiara is used in respect of the accommodation let to him. This Court held that provisions of section 38 having no application even if the landlord has allowed the use thereof. In the instant case the passage is not included in the tenanted premises and plaintiff is also claiming relief for permanent injunction restraining the defendant/landlord from obstructing the applicant from using the passage which is not included in the tenanted premises and also claimed relief for permanent injunction restraining the appellant/landlord not to evict the tenant without following the due process of law. Thus, the civil Court has jurisdiction in the matter and bar of section 45 of the Act will not be applicable as use of passage does not come within the purview of essential supply or service as per explanation 1 to section 38 of the Act. The trial Court has not committed any error in rejecting the application of the defendant. The order passed by the trial Court is just and proper. The revision has no merit and is accordingly dismissed.