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2009 DIGILAW 497 (MP)

Manisha Lalwani v. D. V. Paul

2009-04-16

A.K.SHRIVASTAVA

body2009
ORDER 1. This revision application has been filed under 397 read with section 401 of Code of Criminal Procedure, 1973 against the order dated 6.9.2005 passed by learned Judicial Magistrate First Class, Katni, not registering the case against respondent. 2. As per the case of the applicant, she is owner of the building bearing house No. 436 of 436/13, situated at Gurunanak Ward, Katni. The first floor of the said building was let out to respondent No.1 on rental basis. As per the case of the applicant, respondent inducted a sub-tenant in the tenanted premises, as a result of which landlord-applicant filed Civil Suit No. 6-A/01 against respondent on several grounds including the ground under section 12 (1) (b) of M.P. Accommodation Control Act, 1961 (in short 'the Act'). The suit was decreed by the trial Court on various grounds including the ground of inducting sub-tenant. The decree passed by to be trial Court was affirmed upto this Court since the first and second appeal filed by the respondent were dismissed. 3. After the dismissal of second appeal of tenant-respondent on 11.5.2005, a private complaint was filed by the landlord-applicant against respondent-tenant as well as against Smt. Pushpa Ahmed and Smt. Washington who were sub-tenant in the tenanted accommodation making a prayer to impose penalty. In the said complaint case, the applicant examined her husband Ashok Lalwani, who is also her power of attorney holder. The learned Magistrate, by the impugned order has not registered the case and dismissed the complaint. Hence, this revision has been filed. 4. The contention of Shri Mohd. Ali, learned counsel for the applicant is that because the case has not been registered against the respondent by the Magistrate, therefore, respondent is not having any locus standi to have audience in this revision application. Learned counsel has placed reliance on the deicision of Madras High Court in Somu @ Sumasundaram and others v. The State and another, 1985 CrLJ 1309 . On merit, it has been contended by him that learned Magistrate has simply dismissed the compliant on the ground that this Court in second appeal, while upholding the judgment and decree of two Courts below gave time to vacate the premises. On merit, it has been contended by him that learned Magistrate has simply dismissed the compliant on the ground that this Court in second appeal, while upholding the judgment and decree of two Courts below gave time to vacate the premises. According to learned counsel, merely because time was given by this Court to vacate the premises would not be a ground to hold that respondent and is not liable for the penalty under section 43 (3) of the Act. 5. Considered the arguments. 6. So far as giving right of audience to respondent is concerned, since at the threshold the complaint was dismissed without registering it, the respondent is not having any right of audience in this revision application, because, at the time of registration of a complaint, the Magistrate is not required to hear the accused. The right of audience confers on the other party only after the case is registered against him by the Magistrate and when he is summoned under section 204 CrPC. However, since the notice of revision has been issued to the respondent, I have also heard his learned counsel for the respondent. 7. On going through the judgment passed in the civil suit, as well as the judgment of learned First Additional District Judge, Katni in C.A. No. 69-A/03, decided on 13.5.2004 it is gathered that the appeal of the tenant was dismissed and the decree passed by the trial Court on several grounds including the ground under section 12 (1) (b) of the Act was affirmed. The learned appellate Court in para 14 of the judgment categorically held that respondent inducted sub-tenants. The findings of learned first appellate Court was also affirmed by this Court in Second Appeal No. 932/04 (Dr. D.V. Paul v. Smt. Manisha Lalwani) on 11.5.2005. This Court on 11.5.2005, while dismissing the appeal of the tenant-respondent, passed the following order: "Appellant by Shri Arun Kumar Choubey, Advocate. Respondent by Shri Anil Lala, Advocate. In course of hearing in ~he admission matter, the learned counsel for the appellant expressed his desire to vacate the suit premises within ten months from the date of this order. The learned counsel for the respondent has contended that he may utmost provide eight months time for delivery of the possession of the suit premises. Learned counsel for the appellant agrees for vacation of the suit premises within the said period. The learned counsel for the respondent has contended that he may utmost provide eight months time for delivery of the possession of the suit premises. Learned counsel for the appellant agrees for vacation of the suit premises within the said period. In view of the submissions aforesaid, the appellant is directed to deliver the vacant possession of the suit premises to the respondent on or before 15th of January, 2006 positively, failing which, the appellant will be saddled with cost ofRs. 25,000/- and the respondent shall be entitled to recover the same in accordance with law. In view of the aforesaid, this appeal is dismissed. C.C. as per rules." 8. Letting out the tenanted premises to sub-tenant without permission of the landlord is prohibited under section 14 of the Act, and therefore, any act of sub-letting in contravention to section 14 of the Act, by the tenant, he is liable to face penalty under the Act under section 43 (3) of the Act. The penalty of fine, may be extended to Rs. 1,000/- under this section and, therefore, merely because time was allowed to respondent by this Court in second appeal to vacate the premises would not mean that there is no material to register the complaint. According to me, there is sufficient material on record to register the private complaint of the applicant. Therefore, the learned Magistrate has acted illegally by not registering the case against respondent Dr. D.V. Paul. 9. However, the complaint has been rightly dismissed against the subtenants namely Smt. Pushpa Ahmed and Smt. Washington, because, section 43 (3) of the Act is applicable only against the tenant and not against the sub-tenant. Hence, no interference is made in the impugned order rejecting the complaint against sub-tenants. 10. Resultantly, this revision succeeds and is hereby allowed in part. The impugned order is hereby set aside and the Judicial Magistrate First Class is hereby directed to register the case against respondent Dr. D. V. Paul and thereafter proceed with the matter in accordance with the law. C.C. as per rules.