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Madhya Pradesh High Court · body

2010 DIGILAW 1031 (MP)

Akash Jain v. Jama Masjid Committee

2010-10-11

U.C.MAHESHWARI

body2010
ORDER U.C. Maheshwari, J. 1. The applicant/ Defendant has directed this revision under Section 83(9) of the Wakf Act, 1995 being aggrieved by the order dated 26.6.2010 passed by the M.P. State Wakf Tribunal, Bhopal in Case No. Nil/2010 directing the applicant to deposit the entire arrears of the rent of the disputed premises within one month in the suit for eviction filed by the Respondent. 2. The facts giving rise to this revision in short are that the Respondent herein filed the suit against the applicant for eviction with respect of the premises situated at Sagar. Undisputedly, the Respondent being constituted under the provision of Wakf Act, its property is governed with such enactment. By virtue of the notification No. F-24-(4)-83-XXXII-1 dated 7.9.89 the provision of M.P. Accommodation Control Act, 1961 is not applicable to any property of the Respondent. 3. In the aforesaid premises, on behalf of the Respondent, after giving a quit notice of terminating the tenancy with respect of the disputed premises, the impugned suit for eviction has been filed in the above mentioned tribunal under the provisions of the Transfer of Property Act as under the Wakf Act no such procedure has been provided and applicability of any provision of Transfer of Property Act has neither been excluded nor barred. A copy of the plaint is also placed on the record according to which the applicant, being defaulter in payment of the regular monthly rent of the disputed premises inspite sending the demand notice had not paid the dues of months together, on which, the suit for eviction as well as for recovery of arrears of the rent and mesne profit, is filed. 4. In pendency of the suit, on behalf of the Respondent, an application to close the right of the applicant to defend the case on account of non-payment and non depositing the arrears of rent was filed. As per averments of such IA, the same was filed under Section 13(6) of the M.P. Accommodation Control Act, 1961. On behalf of the applicant, the averments of such IA are disputed in his reply on dated 3.5.2010. On consideration in view of the alleged rent note (Kirayanama) and the other available circumstances, the applicant was directed by the tribunal to deposit the entire arrears of rent in one month vide impugned order dated 26.6.2010. On behalf of the applicant, the averments of such IA are disputed in his reply on dated 3.5.2010. On consideration in view of the alleged rent note (Kirayanama) and the other available circumstances, the applicant was directed by the tribunal to deposit the entire arrears of rent in one month vide impugned order dated 26.6.2010. Being aggrieved by the same, the applicant has come forward with this revision to this Court. 5. Shri M.L. Choubey, learned Counsel after taking me through the averments of the revision memo as well as the pleadings and the papers placed on the record argued that undisputedly the present case is not governed by the provision of M.P. Accommodation Control Act, 1961 so the application filed on behalf of the Respondent under Section 13(6) of such Act for closing the right of the applicant to defend the case was not entertainable and on that basis the applicant could not be directed to deposit the outstanding sum of the rent. He also argued that under the provision of Rent Control Act there is certain provision empowering the court to struck out the defence on account of non-payment of the outstanding rent or regular rent of the premises but there is no such provision under the Transfer of Property Act and, in such premises, the impugned order being passed in the lack of any statutory provision, is not sustainable under the law. In continuation he also argued that courts should not pass such an order for which the procedure for it's compliance or execution is not provided under the law. In this respect he said that if in compliance of such order the step is not taken by the applicant then there is no provision under the law to take any recourse or action against the applicant regarding violation of such order. He also argued that the High Court, being superior court and the court of record, is duty bound to keep all record in accordance with the law and if any apparent error is noticed then this Court has to determine the scope of the jurisdiction. In such premises, this Court is having the jurisdiction to rectify such order which has been passed by the inferior court or the subordinate court without having such vested jurisdiction in that regard. In such premises, this Court is having the jurisdiction to rectify such order which has been passed by the inferior court or the subordinate court without having such vested jurisdiction in that regard. By placing his reliance on a case law in the matter of M.M. Thomas v. State of Kerela and Anr.- AIR 2000 SC 540 , he prayed for setting aside the impugned order by admitting and allowing this revision. 6. Having heard the counsel, keeping in view his arguments, I have carefully gone through the pleadings and other papers along with the impugned order placed on the record but because of following reasons, I am of the view that the trial court has not committed any error or perversity in passing the impugned order. 7. It is not in dispute that the Respondent /Plaintiff being Wakf institution, by virtue of the above mentioned notification, is exempted from the provision of M.P. Accommodation Control Act. It is also undisputed circumstance that under the Wakf Act no provision either fot creating the lease or determining the same or to determine the rights and liabilities of the Lessor and Lessee are enacted so, in such circumstance, the alleged lease transaction of the disputed premises between the Respondent and the applicant shall be governed with the provision of Section 105 to 117 enacted to govern the lease of immovable property in Chapter v. of the Transfer of property Act. Out of them, Section 114 is read as under: 114. Relief against forfeiture for non-payment of rent Where a lease of immovable property has been determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fifteen days, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. The above mentioned provision of Transfer of Property Act provides that where the alleged lease of immovable property has been determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee and on hearing of suit the lessee pays or tenders to the lessor, the rent in arrears together with interest thereon and its full cost of the suit or gives such security as the court thinks sufficient for making such payment within 15 days then the court in lieu of decree of ejectment, pass an order relieving the lessee against forfeiture and, in such circumstance, the lessee shall hold the property leased as if the forfeiture had not occurred. 8. Keeping in view the aforesaid provision and the circumstances on examining the impugned order it is apparent that in such order by allowing some application of the Respondent, the applicant is directed to deposit the rent within one month. At present, in such order, on non-compliance the direction to deposit the rent according to spirit of said provision, no consequence has been mentioned. But in any case, at the request of the Respondent, after taking into consideration the factual matrix of the case and the basic spirit of the aforesaid Section 114 of the Act, if some directions to deposit the arrears of rent or mesne profit without mentioning any consequence of it has been given by the tribunal then it could not be said that such order has been passed by the tribunal under any error of jurisdiction or contrary to law. 9. In any case, the impugned order could be deemed to be passed with the spirit of the aforesaid provision of Section 114 of the Transfer of Property Act If such direction is not complied with then certainly, subject to appreciation of the evidence, under the aforesaid provision, on final hearing of the matter, in view of impugned order, the question regarding forfeiture of the lease of the applicant and pursuant to that the question of his eviction from the disputed premises could be adjudicated. 10. In the aforesaid premises, I have not found any perversity, infirmity or irregularity or any thing against the propriety of the law in the order impugned. On the contrary, it appears to be passed by the tribunal under the vested jurisdiction of it 11. 10. In the aforesaid premises, I have not found any perversity, infirmity or irregularity or any thing against the propriety of the law in the order impugned. On the contrary, it appears to be passed by the tribunal under the vested jurisdiction of it 11. So far the case law M.M. Thomas (supra) cited on behalf of the applicant is concerned, in view of the aforesaid discussion, such case law being distinguishable en facts with the ease at hand, is not helping to the applicant. So far the principle laid down in such case is concerned, this Court did not have any dispute but in the available circumstances the same is not giving any benefit to the applicant. 12. Long before in the matter of Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Anr. v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, - AIR 1973 SC 76 , the Apex Court has held that if the impugned order is passed by the subordinate, court under it's vested jurisdiction then even if erroneous on facts, the same could not be interfered under the revisional jurisdiction of the superior court. 13. In the aforesaid premises, I have not found any merits in this revision for admission, resultantly, the same is hereby dismissed at the motion stage. Pursuant to it, IA No. 8572/10 the stay application is also dismissed.