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Madhya Pradesh High Court · body

2012 DIGILAW 420 (MP)

Rayees Ahmed v. Iddo bee

2012-04-18

K.K.TRIVEDI

body2012
JUDGMENT : Thisrevision is directed against the order dated 22-11-2010 passed by the XII CivilJudge Class-I, Bhopal in Regular Civil Suit No. 25-A/2008, by which (heobjection filed by the petitioner/defendant with respect to maintainability ofthe suit has been dismissed. 2.The facts giving rise to this revision are that the respondent has preferred asuit against the petitioner for his eviction from the suit accommodation, ashop, on the various grounds enumerated under Section 12 (1) of the M.P.Accommodation Control Act, 1961 (hereinafter referred to as 'Act'). Therespondent has claimed arrears of rent, eviction of the petitioner from thesuit shop, mesne profits etc. The petitioner hascontested the suit on the ground that the respondent is not entitled to claimsuch decree of eviction. She is not in bonafide needof the shop. Certain shops were got vacated but the same are being lei outafter raising the rent. Need indicated in the suit is not bonafide and the suit is liable to be dismissed. The petitioner has also filed anapplication under Order 7 Rule 11 of the Code of Civil Procedure for dismissalof the suit on the ground that the respondent being a widow, is a specifiedlandlord defined under Section 23-J of the Act and is required to file an applicationunder Section 23-A of the Act for eviction of the petitioner in case she is in bonafide need of the demised premises. It is contended thatsince there is a bar provided under Section 45 of the Act with respect to thejurisdiction of the Civil Court ,such a suit as has been filed, is not maintainable and the composite suit isliable to be dismissed. However, the Court below has rejected such anapplication of the petitioner by the impugned order and, therefore, thisrevision is required to be filed. 3.Learned Counsel for the petitioner has vehemently contended that Section 45 ofthe Act makes it clear that the jurisdiction of the Civil Court is barred inrespect of such a suit, which could be filed under Section 23-A of the Actbefore the Rent Controlling Authority. 3.Learned Counsel for the petitioner has vehemently contended that Section 45 ofthe Act makes it clear that the jurisdiction of the Civil Court is barred inrespect of such a suit, which could be filed under Section 23-A of the Actbefore the Rent Controlling Authority. Reading the provisions of Section 23-Jof the Act, it is contended by learned Counsel for the petitioner that sincethe respondent is a widow lady, she is a specified landlord and, therefore, sheis required to approach the Rent Controlling Authority for seeking eviction ofthe petitioner under the provisions of Section 23-A of the Act, where it isspecifically provided that the eviction of the tenant on the ground of bonafide requirement can be directed by the RentControlling Authority. It is contended that such a composite suit is notmaintainable before the Civil Court and only for the purposes of arrears of rent, the suitcould have been filed before the Civil Court .As such, the suit is not maintainable and is liable tobe dismissed. 4.Per contra, it is contended by learned Counsel for the respondent that if sucha composite suit is filed, there would not be any absolute bar under Section 45of the Act with respect to the jurisdiction of the Civil Court and, therefore, the Civil Court will have the jurisdiction to entertain thesuit. Since this has been considered by a Full Bench of this Court and thisaspect has already been decided, the rejection of such an application of thepetitioner is justified. It is contended that the revision has no force and thesame is liable to be dismissed. 5.Heard learned Counsel for the parties at length and perused the record. 6.Undisputedly, the respondent has said that she is in bonafide need of the demised premises for the purposes of starting business of her adultson, who is unemployed. It is also contended by the respondent that she has twoother shops on the ground floor, for which the proceedings for eviction oftenants have been initiated for other two adult sons. But in the plaint, shehas never claimed that she is a specified landlord and is, thus, entitled toget a decree under the special provisions of Section 23-A of the Act. If thatis the situation, whether could it be said that such a suit was not maintainablebefore the Civil Court because of the bar of jurisdiction created under Section 45 of the Act. If thatis the situation, whether could it be said that such a suit was not maintainablebefore the Civil Court because of the bar of jurisdiction created under Section 45 of the Act. LearnedCounsel for the petitioner has put his reliance in the case of Prahlad and others Vs. Smt . Kalabatibai , Indian Law Reports 2002 MP 937. It is contendedthat the law is well settled in this respect that such a composite suit is notmaintainable before the Civil Court .Further, relying on the decision in the case of Nandlal Vs. Mangibai , 2006 (1) MPLJ 231 , and in case of Shyamsingh s/o Bherusingh Thakur Vs. Mulyabai d/oAmritlal, 2006 (3) MPLJ 125 , learned Counsel for the petitioner has contendedthat in view of the well settled position of law, such a composite suit atleast for eviction of the petitioner on the grounds of jurisdiction of theCivil Court was barred under Section 45 of the Act and the suit was liable tobe dismissed on this ground. 7.It is not in dispute that such a composite suit was filed. It is also not indispute that the respondent has not claimed her to be specified landlord asdefined under Section 23-J of the Act. The Full Bench of this Court in case of Ashok Kumar Shiv Prasad Verma Vs. Baboolal s/o Gorelal and another, 1998 (1) MPLJ 461 , has considered thisaspect and has dealt with such a situation. The Full Bench has categoricallyheld that there is no prohibition specifically prescribed under Section 45 ofthe Act prohibiting any landlord under Section 23-J of the Act from seeking aremedy before the Civil Court. For the better appreciation of theinterpretation of the provisions of Section 45 of the Act as done by the FullBench of this Court, it would be appropriate to refer the findings recorded inPara 5 of the report, which reads thus :- "5.We have bestowed our best of consideration to the interpretation of Section11-A and we are of the opinion that the provision of Chapter III will not applyto Chapter III-A and not vice-versa. The learned Single Judge has only read itto mean that if the landlords defined in Section 23-J seek a remedy of evictionof the tenant then they have only one forum and they cannot take the benefit ofgoing to Civil Court along with other ground, with great respect, is notcorrect. The learned Single Judge has only read itto mean that if the landlords defined in Section 23-J seek a remedy of evictionof the tenant then they have only one forum and they cannot take the benefit ofgoing to Civil Court along with other ground, with great respect, is notcorrect. In fact, this is not the intention of Section 11-A. If any landlordwants to get a benefit of summary proceedings of the tenant, who is a landlorddefined in Section 23-J, then he can immediately invoke the remedy before theRent Controlling Authority. But, if he does not want to invoke the benefit ofthat summary remedy then there is no prohibition for him to go to a Civil Court and seek remedy of eviction of the tenant onthe basis of reasonable bonafide requirement or onother grounds mentioned in Section 12 of the Act. Section 45 does not prohibitthe landlord defined in Section 23-J from seeking a remedy before the Civil Court . Section 45 only says that no Civil Court shall entertain any suit or proceeding in sofar as it relates to fixation of standard rent in relation to any accommodationto which this Act applies or to any other matter which the Rent ControllingAuthority shall be granted. A close reading of this section means that so faras the matter relates to fixation of rent in relation to the accommodationconcerned, the Rent Controlling Authority will have the jurisdiction to decidethe matter and for any other matter, which the, Rent Controlling Authority isempowered by or under this Act to decide, no injunction in respect of anyaction taken or to be taken by the Rent Controlling Authority shall be grantedby any Civil Court or other authority. A simple meaning of this is that if anymatter in which suit has been filed by the landlord as defined in Section 23-J,for eviction of the tenant on a reasonable bonafide requirement, then to the extent, the jurisdiction of the Civil Court is barred.But, if any landlord defined in Section 23-J, files suit before the Civil Courtraising a ground of reasonable bonafide requirementor on other grounds mentioned in Section 12 of the Act, then the Civil Courtcan decide the matter and there is no prohibition. If the landlord defined inSection 23-J files a simpliciter suit on the groundof reasonable bonafide necessity before the RentControlling Authority, then in that case, the Civil Court will have no jurisdiction whatsoever. If the landlord defined inSection 23-J files a simpliciter suit on the groundof reasonable bonafide necessity before the RentControlling Authority, then in that case, the Civil Court will have no jurisdiction whatsoever. But tointerpret Section 45 to mean that the landlord defined in Section 23-J willhave no right to approach the Civil Court for eviction of the tenant on the ground of a reasonable bonafide requirement, will not be a correct interpretation of Section 45. In fact, asalready mentioned above, Section 11-A is a restrictive provision that ChapterIII will not be applicable to the landlords defined in Section 23-J underChapter III-A. But, if the landlord does not want to avail the benefit ofChapter III-A and wants to litigate the matter before the Civil Court asordinary landlord then Section 45 of the Act will not come in the way.' Infact, the benefit has been specifically provided to the landlord defined inSection 23-J whereby he does not cease to be ordinary landlord. The landlord canavail the expeditious remedy under Chapter III- A and if they do not want to avail the remedy under Chapter III-A and wants tolitigate as an ordinary citizen, then it is their choice and they cannot berestricted to one particular forum. Alternative Forum has been created for thebenefit of these persons and that does not exclude the Ordinary Civil Forum, ifthey do not want to avail the benefit of a privilege, which has been createdfor them under the Act. Therefore, when Chapter III-A is specially inserted forthe benefit of the landlords defined in Section 23-J and to read it thatexcludes other Civil Forum with reference to Section 45 will be frustrating thevery purpose of the Act. Neither the Full Bench in the case of Paraschand ( tupn ) nor the DivisionBench in the case of Bernard (supra) has anywhere laid down that thejurisdiction of the Civil Court is barred for the landlords defined in Section23-J of the Act. The view taken by the learned Single Judge that since aspecial forum has been created under Chapter III-A; therefore, reading withSection 45, the landlords defined in Section 23-J has to resort to thatparticular forum and they cannot have a remedy before the Civil Court, withgreat respect, it is not the correct view taken by the learned SingleJudge." 8.Another aspect is that the Apex Court also in the case of Ashok Kumar Gupta Vs. Vijay Kumar Agrawal , (2002) 3 SCC717, has considered these aspects and as has been referred in some of thedecisions given thereafter by this Court, the provisions of Section 45 of theAct have been interpreted. The Apex Court has also said that there is no absolute bar that a specified landlord asdefined under Section 23-J is prohibited to approach the Civil Court for claiming any relief whatsoever againstthe tenant. For the said purposes, the specific provision made under Section11-A of the Act have also been noted. From theenunciation of law as laid down by the Full Bench of this Court and by the Apex Court as also other Co-ordinate Bench. it is clear that the plaintiff is the dominus litis and the plaintiff has a right, to choose theforum, if there is no specific prohibition of the jurisdiction of the Civil Court . As has been pointed out herein above, therespondent has filed the suit not only for bonafide need of shop for establishing the business of her son but she has alsocategorically said that the petitioner was a defaulter, was not making paymentof rent regularly, He has sublet the demise premises to somebody else withoutthe consent of the respondent. In response to the notice issued by therespondent, the petitioner has denied the ownership of the respondent over thesuit shop and, therefore, the decree of eviction is required to be granted asprovided in different sub-clauses of sub-section (1) of Section 12 of the Act.If that is the claim made, how could it be said that such a suit is notmaintainable before the Civil Court and the same is liable to be dismissed, as per the bar prescribed under Section45 of the Act. 9.This being so, the order passed by the Court below rejecting the application ofthe petitioner under Order 7 Rule 11 of the Code of Civil Procedure cannot besaid to be beyond the jurisdiction or authority of the Court below. If thepetitioner is of the view that only with respect to the claim made for grant ofdecree for eviction on the ground of bonafide need isnot maintainable, to that extent, the Civil Court is required to examine thebar of jurisdiction created under Section 45 of the Act but for the rest of theclaim, the Civil Court has the jurisdiction and, therefore, the suit ismaintainable. 10.In view of the foregoing discussion, there is no merit in this revision and thesame deserves to be and is hereby dismissed. There shall be no order as to cost.